Foreign Relations of the United States Diplomatic Papers, 1937, The British Commonwealth, Europe, Near East and Africa, Volume II

211.68/148

The Minister in Greece (MacVeagh) to the Secretary of State

No. 1505

Athens, January 22, 1937.
[Received February 6.]

Sir: I have the honor to refer to the Department’s instruction No. 239 of November 15, 1935, concerning the abrogation of the Treaty of Extradition concluded on May 6, 1931, between the United States and Greece. In this connection the Department suggested that the notice of abrogation of this treaty to the Greek Government might be withdrawn upon the basis of formal assurance that the Greek authorities are now disposed to interpret the treaty in the same manner in which it is interpreted by the American Government, and enclosed a proposed draft of a protocol calculated to achieve the desired interpretation.

As reported in my despatch No. 1007 of January 20, 1936,¹⁹ the question was immediately discussed informally with the Minister for Foreign Affairs and an Aide-Mémoire left on that occasion was referred to the Trade and Treaty Division of the Foreign Office, and later to the Ministry of Justice, where it lay apparently dormant despite the Legation’s repeated attempts to secure action. At length, on October 30, 1936, at the request of the Acting Chief of the Treaty Division the proposed draft of the protocol was submitted by the Legation for the consideration of the Greek authorities. Finally, on January 5, 1937, the whole matter was discussed at some length with Mr. Argyropoulos, Chief of the Treaty Division, who had returned to his desk after considerable absence from Athens.

Mr. Argyropoulos stated that the Hellenic Ministry of Justice raised no objections to the proposed protocol, and that the Greek Government is willing to agree to any desirable interpretation of the Treaty. However, he said that in the opinion of the Hellenic Foreign Ministry the proposed protocol would not provide a solution, because the Greek courts would interpret it exactly as they had interpreted the original treaty in the Insull case.²⁰ Incidentally he expressed himself as believing that the courts had correctly interpreted the language of the final clause of Article I of the Treaty in that instance, not going beyond a sufficient examination of the evidence of criminality to determine whether it would have justified the apprehension and commitment for trial of the accused if the crimes had been committed in Greece.

Consequently, fearing future misunderstandings, the Foreign Office does not consider it advisable to proceed to the conclusion of the protocol as proposed. Mr. Argyropoulos suggested instead that Article I of the Treaty be changed by replacing the final clause with one giving the courts the right only to examine questions of identity and the legality and sufficiency of the papers presented in connection with the request for extradition, no judicial consideration being given to the question of the guilt of the person accused, i. e., to the substance of the case.

In this connection he stated that there are only two types of extradition possible under Greek law. The first is exemplified by the Greco-Belgian Extradition Treaty of June 26, 1901, and the Greek Extradition Law of February 7, 1904, Article 4 of which reads as follows:

The Council of the Court of Appeals meets publicly, unless the accused asks for a closed session, or will not appear before the Council.

The Council of the Court, after the examination of the accused person, if he appeared, and after having heard the prosecuting attorney as well as the accused or his counsel, renders its opinion with explanatory reasons on the request for extradition.

The Council of the Court decides:

1) On the identity of the person requested with the arrested;

2) On the existence of the justificatory documents required by the treaty;

3) On the question whether the individual arrested and the infraction with which he is charged are those for which extradition may be granted;

4) On the question whether there exists according to Greek law provision for penal action or penalty.

However, it is not permitted to the Council of the Court to examine the (bien-fondé) bona fides [sic] of the infraction with which the accused is charged.

Copy of the decision in every case is transmitted without delay to the Ministry of Justice through legal channels, accompanied by all the documents relating thereto.

The other type is exemplified by the Greco-British Extradition Treaty of September 24, 1910, and Greek Extradition Law No. 4031, applying to treaties of this type. Article 3 of this law reads as follows:

Article 4 of the Law of February 7, 1904, is hereby amended as follows, in regard to this treaty.

The Council of the Court of Appeals meets publicly unless the accused asks for a closed session or will not appear before the Council. The Council of the Court of Appeals after the examination of the accused person, if he appeared, and after having heard the prosecuting attorney as well as the accused or his counsel, renders its opinion with explanatory reasons on the request for extradition.

The Council of the Court of Appeals decides:

1) On the identity of the person requested with the arrested;

2) On the existence of the justificatory documents required by the treaty;

3) On the question whether the person arrested and the crime committed by him are among those for which extradition may be granted;

4) On the question whether there exists according to Greek law provision for penal action or penalty.

The Council of the Court of Appeals in addition proceeds to the examination of the bona-fides [sic] of the infraction attributed to the accused on the basis of the evidence officially presented by the State asking for extradition to verify that these proofs would allow the arrest and trial in Greece of the person whose extradition is requested if the crime were committed on Greek soil, or (in the event extradition was asked by virtue of a condemnatory decision) that the crime or misdemeanor for which he was sentenced, is such as to have caused his extradition at the time of his conviction. It is to this extent only and in each case that the Council of the Court of Appeals may proceed to the substantial examination of the infraction attributed to the arrested.

A copy of the decision in every case is forwarded without delay to the Ministry of Justice through legal channels accompanied by all the documents relating thereto.

It may be observed that the procedure specified in the latter law, No. 4031, is that governing in the case of the present Extradition Treaty between the United States and Greece, and was that applied by the Greek Court in the Insull case, according to that Tribunal’s own interpretation. Actually the text of the law appears to correspond closely to the language of the existing treaty. The misunderstanding arises from the fact that according to the American interpretation of the text, the Court exceeded its legal powers in its examination of the Insull case.

The alternatives for the maintenance of some agreement on the subject of extradition between the United States and Greece accordingly appear to be:

1) The treaty can be so altered, as suggested by the Hellenic Foreign Ministry, as to bring it definitely into the category administered under the provisions of the Greek Extradition Law of February 7, 1904; this would of course imply a reciprocal obligation for American courts to follow an equivalent procedure with respect to applications for extradition made by the Greek Government.

2) The notice of abrogation may simply be withdrawn in the hope that the Greek courts would in future cases show themselves to be more reasonable in the extent to which they insist upon pressing their examinations.

Respectfully yours,

Lincoln MacVeagh

19. Not printed.
20. For correspondence relating to the Insull case, see Foreign Relations, 1933, vol. ii, pp. 552 ff., and ibid., 1934, vol. ii, pp. 566 ff.