Papers relating to the foreign relations of the United States, 1930, Volume I

Treaty Series No. 822

Treaty Between the United States of America and Austria, Signed at Vienna, January 31, 1930²⁰

The United States of America and Austria desiring to promote the cause of justice, have resolved to conclude a treaty for the extradition of fugitives from justice, between the two countries and have appointed for that purpose the following Plenipotentiaries:

The President of the United States of America:

Mr. Albert Henry Washburn, Envoy Extraordinary and Minister Plenipotentiary to Austria, and

The Federal President of the Republic of Austria:

Mr. Johann Schober, Federal Chancellor, who, after having communicated to each other their respective full powers, found to be in good and due form, have agreed upon and concluded the following articles:

Article I. It is agreed that the Government of the United States and the Federal Government of Austria shall, upon requisition duly made as herein provided, deliver up to justice any person, who may be charged with, or may have been convicted of any of the offenses specified in Article II of the present Treaty which are designated in the laws of the surrendering state as crimes other than misdemeanors and which were committed within the jurisdiction of one of the High Contractings Parties, whenever such person shall seek an asylum or shall be found within the territories of the other; provided that such surrender shall take place only upon such evidence of criminality, as according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the offense had been there committed.

Article II. Persons shall be delivered up according to the provisions of the present Treaty, who shall have been charged with or convicted of any of the following offenses:

1. Murder, comprehending the crimes designated by the term parricide, assassination, manslaughter when voluntary, poisoning or infanticide.

2. Rape, abortion, carnal knowledge of children under the age of fourteen years.

3. Abduction or detention of women or girls for immoral purposes.

4. Bigamy.

5. Arson.

6. Wilful and unlawful destruction or obstruction of railroads, which endangers human life.

7. Crimes committed at sea:

a) Piracy, as commonly known and defined by the law of nations, or by statute.

b) Wrongfully sinking or destroying a vessel at sea.

c) Mutiny or conspiracy of two or more members of the crew or other persons on board of a vessel on the high seas, for the purpose of rebelling against the authority of the Captain or Commander of such vessel, or by fraud or violence taking possession of such vessel.

d) Assault on board ship upon the high seas with intent to do bodily harm.

8. Burglary, defined to be the act of breaking into and entering the house of another in the night time with intent to commit a felony therein.

9. The act of breaking into and entering the office of the Government and public authorities or the offices of banks, banking houses, savings-banks, trust-companies, insurance and other companies, or other buildings not dwellings with intent to commit a felony therein.

10. Robbery, defined to be the act of feloniously and forcibly taking from the person of another goods or money by violence or by putting him in fear.

11. Forgery or the utterance of forged papers.

12. The forgery or falsification of the official acts of the Governments, or public authority, including Courts of Justice, or the uttering or fraudulent use of any of the same.

13. The fabrication of counterfeit money, whether coin or paper, counterfeit titles or coupons of public debt, created by National, State, Provincial, Territorial, Local or Municipal Governments, bank notes or other instruments of public credit, counterfeit seals, stamps, dies and marks of State or public administrations, and the utterance, circulation or fraudulent use of the above mentioned objects.

14. Embezzlement or criminal malversation committed within the jurisdiction of one or the other party by public officers or depositaries, where the amount embezzled exceeds one hundred dollars or the Austrian equivalent.

15. Embezzlement by any person or persons, hired, salaried or employed, to the detriment of their employers or principals, when the crime is punishable by imprisonment or other corporal punishment by the laws of both countries, and where the amount embezzled exceeds one hundred dollars or the Austrian equivalent.

16. Kidnapping of minors or adults, defined to be the abduction or detention of a person or persons, in order to exact money from them, their families or any other person or persons, or for any other unlawful end.

17. Larceny, defined to be the theft of effects, personal property, or money, of the value of one hundred dollars or more or the Austrian equivalent.

18. Obtaining money, valuable securities or other property by false pretences or receiving any money, valuable securities or other property knowing the same to have been unlawfully obtained, where the amount of money or the value of the property so obtained or received exceeds one hundred dollars or the Austrian equivalent.

19. Perjury or subornation of perjury.

20. Fraud or breach of trust by a bailee, banker, agent, factor, trustee, executor, administrator, guardian, director or officer of any company or corporation, or by any one in any fiduciary position, where the amount of money or the value of the property misappropriated exceeds one hundred dollars or the Austrian equivalent.

21. Crimes against the laws of both countries for the suppression of slavery and slave trading.

22. Wilful desertion or wilful non-support of minor or dependent children.

The extradition is also to take place for participation in any of the aforesaid crimes as an accessory before or after the fact or for any attempt to commit any of the aforesaid crimes; provided such participation or attempt be punishable by imprisonment by the laws of both Contracting Parties.

Article III. The provisions of the present Treaty shall not import a claim of extradition for any offense of a political character, nor for acts connected with such offenses; and no person surrendered by or to either of the High Contracting Parties in virtue of this Treaty shall be tried or punished for a political offense committed before his extradition.

The State applied to or Courts of that State shall decide whether the offense is of a political character or not.

When the offense charged comprises the act either of murder or assassination or of poisoning, either consummated or attempted, the fact that the offense was committed or attempted against the life of the Sovereign or Head of any State or against the life of any member of his family, shall not be deemed sufficient to sustain that such offense was of a political character; or was an act connected with offenses of a political character.

Article IV. No person, except with the approval of the surrendering State, shall be tried for any crime committed before his extradition other than that for which he was surrendered, unless he has been at liberty for one month after having been tried for that offense, to leave the country, or, in case of conviction, for one month after having suffered his punishment or having been pardoned.

Article V. A fugitive criminal shall not be surrendered under the provisions hereof, when, from lapse of time or other lawful cause, either according to the laws of the country within the jurisdiction of which the crime was committed or according to the laws of the surrendering State, the criminal is exempt from prosecution or punishment for the offense for which the surrender is asked.

Article VI. If the person whose extradition has been requested, pursuant to the stipulations of this Convention, be actually under prosecution for a crime in the country where he has sought asylum, or shall have been convicted thereof, his extradition may be deferred until such proceedings be terminated, or until such criminal shall be set at liberty in due course of law.

Article VII. If a fugitive criminal claimed by one of the parties hereto, shall be also claimed by one or more powers pursuant to treaty provisions, on account of offenses committed within their jurisdiction, such criminal shall be delivered to that State whose demand is first received, unless its demand is waived. This Article shall not affect such treaties as have already previously been concluded by one of the Contracting Parties with other states.

Article VIII. Under the stipulations of this Treaty, neither of the High Contracting Parties shall be bound to deliver up its own citizens.

Article IX. The expense of transportation of the accused shall be paid by the Government which has preferred the demand for extradition. No claim other than for the board and lodging of an accused prior to his surrender arising out of the arrest, detention, examination and surrender of fugitives under this Treaty shall be made against the Government demanding the extradition; provided, however, that any officer or officers of the surrendering Government, who shall in the course of their duty, receive no salary or compensation other than specific fees for services performed, shall be entitled to receive from the Government demanding the extradition the customary fees for the acts or services performed by them, in the same manner and to the same amount as though such acts or services had been performed in ordinary criminal proceedings under the laws of the country of which they are officers.

These claims for board and lodging and for fees are to be submitted through the intermediary of the respective Government.

Article X. Everything found in the possession of the fugitive criminal at the time of his arrest, whether being the proceeds of the crime, or which may be material as evidence in making proof of the crime, shall so far as practicable, according to the laws of either of the High Contracting Parties, be delivered up with his person at the time of surrender. Nevertheless, the rights of a third party with regard to the articles referred to, shall be duly respected.

Article XI. The stipulations of the present Treaty shall be applicable to all territory wherever situated, belonging to either of the High Contracting Parties or in the occupancy and under the control of either of them, during such occupancy or control.

Requisitions for the surrender of fugitives from justice shall be made by the respective diplomatic agents of the High Contracting Parties. In the event of the absence of such agents from the country or its seat of Government, or where extradition is sought from territory included in the preceding paragraph, ether than the United States or Austria, requisitions may be made by superior consular officers. Requisitions for surrender with accompanying documentary proofs shall be required to be translated by the Government which has preferred the demand for extradition into the language of the surrendering Government.

The arrest and detention of a fugitive may be applied for on information, even by telegraph, of the existence of a judgment of conviction or of a warrant of arrest.

In Austria, the application for arrest and detention shall be addressed to the Federal Chancellor, who will transmit it to the proper department.

In the United States, the application for arrest and detention shall be addressed to the Secretary of State, who shall deliver a mandate certifying that the application is regularly made and requesting the competent authorities to take action thereon in conformity to statute.

In case of urgency, the application for arrest and detention may be addressed directly to the competent magistrate in conformity to the statutes in force.

The person provisionally arrested shall be released, unless within three months from the date of commitment in the United States—or from the date of arrest in Austria, the formal requisition for surrender, with the documentary proofs hereinafter described, be made as aforesaid by the diplomatic agent of the demanding Government, or in his absence, by a consular officer thereof.

If the fugitive criminal shall have been convicted of the crime for which his extradiction is asked, a copy of the sentence of the court before which such conviction took place, duly authenticated, shall be produced. If, however, the fugitive is merely charged with crime, a duly authenticated copy of the warrant of arrest in the country where the crime was committed, and of the depositions upon which such warrant may have been issued, shall be produced, with such other evidence or proof as may be deemed competent in the case.

Article XII. In every case of a request made by either of the High Contracting Parties, for the arrest, detention or extradition of fugitive criminals, the appropriate legal officers of the country where the proceedings of extradition are had, shall assist the officers of the Government demanding the extradition before the respective judges and magistrates, by every appropriate legal means within their power.

Article XIII. The present Convention shall be ratified by the High Contracting Parties, in accordance with their respective constitutional methods and shall take effect on the thirtieth day after the date of the exchange of ratifications, which shall take place at Vienna as soon as possible, but it shall not operate retroactively.

On the day when the present Convention takes effect, the Convention of July 3, 1856 shall cease to be in force except as to crimes therein enumerated and committed prior to the date first mentioned.

The present Convention shall remain in force for a period of six months after either of the two Governments shall have given notice of a purpose to terminate it.

In witness whereof the above named Plenipotentiaries have signed the present Treaty and have hereunto affixed their seals.

Done in duplicate at Vienna this 31rst day of January nineteen hundred and thirty.

Albert Henry Washburn

[seal]
[seal]

Schober

20. In English and German; German text not printed. Ratification advised by the Senate, June 16, 1930; ratified by the President, June 28, 1930; ratified by Austria, August 9, 1930; ratifications exchanged at Vienna, August 12, 1930; proclaimed by the President, August 14, 1930.