PORTUGAL
Convention between the United States and Portugal for the mutual extradition of criminals.
Signed at Washington May 7, 1908;
Ratifications advised by the Senate May 22, 1908;
Ratified by the President October 26, 1908;
Ratified by Portugal September 21, 1908;
Ratifications exchanged at Washington November 14, 1908;
Proclaimed December 14, 1908.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.
A PROCLAMATION.
Whereas a Convention between the United States of America and the Kingdom of Portugal, providing for the mutual extradition of fugitives from justice, was concluded and signed by their respective Plenipotentiaries at Washington, on the seventh day of May, one thousand nine hundred and eight, the original of which Convention, being in the English and Portuguese languages, is word for word as follows:
The United States of America and His Most Faithful Majesty the King of Portugal and of the Algarves, having judged it expedient, with a view to the better administration of justice and to the prevention of crimes within their respective territories and jurisdictions, that persons convicted of or charged with the crimes hereinafter specified, and being fugitives from justice, should, under certain circumstances, be reciprocally delivered up, have resolved to conclude a convention for that purpose, and have appointed as their Plenipotentiaries:
The President of the United States of America, Elihu Root, Secretary of State; and
His Most Faithful Majesty the King of Portugal and of the Algarves, Viscount de Alte, His Envoy Extraordinary and Minister Plenipotentiary near the Government of the United States of America;
Who, after reciprocal communication of their full powers, found in good and due form, have agreed upon the following articles, to wit:
ARTICLE I.
It is agreed that the Government of the United States of America and the Government of His Most Faithful Majesty the King of Portugal and of the Algarves shall, upon mutual 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 crimes specified in Article II of this Convention committed within the jurisdiction of one of the Contracting Parties while said person was actually within such jurisdiction when the crime was committed, and who 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 crime or offence had been there committed.
ARTICLE II.
Persons shall be delivered up according to the provisions of this Convention, who shall have been charged with or convicted of any of the following crimes:
- Murder, comprehending the crimes designated by the terms of parricide, assassination, manslaughter, when voluntary; poisoning or infanticide.
- The attempt to commit murder.
- Rape, abortion, carnal knowledge of children under the age of twelve years.
- Bigamy.
- Arson.
- Willful and unlawful destruction or obstruction of railroads, which endangers human life.
- Crimes committed at sea:
- Piracy, as commonly known and defined by the law of Nations, or by Statute.
- Wrongfully sinking or destroying a vessel at sea or attempting to do so.
- Mutiny or conspiracy by 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.
- Assault on board ships upon the high seas with intent to do bodily harm.
- 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.
- The act of breaking into and entering the offices of the Government and public authorities, or the offices of banks, banking houses, saving banks, trust companies, insurance companies, or other buildings not dwellings with intent to commit a felony therein.
- 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.
- Forgery or the utterance of forged papers.
- The forging or falsification of the official acts of the Government or public authority, including Courts of Justice, or the uttering or fraudulent use of any of the same.
- 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, banknotes 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.
- Embezzlement or criminal malversation committed within the jurisdiction of one or the other party by public officers or depositaries, where the amount embezzled exceeds two hundred dollars or the equivalent in Portuguese currency.
- Embezzlement by any person or persons hired, salaried or employed, to the detriment of their employers or principals, when the crime or offence is punishable by imprisonment or other corporal punishment by the laws of both countries, and where the amount embezzled exceeds two hundred dollars or the equivalent in Portuguese currency.
- Kidnapping of minors or adults, defined to be the abduction or detention of a person or persons, in order to exact money from them or their families, or for any other unlawful end.
- Larceny, defined to be the theft of effects, personal property, or money, of the value of twenty-five dollars or more, or the equivalent in Portuguese currency.
- 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 two hundred dollars or the equivalent in Portuguese currency.
- Perjury or subornation of perjury.
- 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 anyone in any fiduciary position, where the amount of money or the value of the property misappropriated exceeds two hundred dollars or the equivalent in Portuguese currency.
- Crimes and offences against the laws of both countries for the suppression of slavery and slave trading.
- The extradition is also to take place for the participation in any of the aforesaid crimes as an accessory before or after the fact, provided such participation be punishable by imprisonment by the laws of both Contracting Parties.
ARTICLE III.
The provisions of this Convention shall not import claim of extradition for any crime or offence of a political character, nor for acts connected with such crimes or offences; and no person surrendered by or to either of the Contracting Parties in virtue of this Convention shall be tried or punished for a political crime or offence. When the offence charged comprises the act either of murder or assassination or of poisoning, either consummated or attempted, the fact that the offence was committed or attempted against the life of the Sovereign or Head of a foreign State or against the life of any member of his family, shall not be deemed sufficient to sustain that such a crime or offence was of a political character, or was an act connected with crimes or offences of a political character.
ARTICLE IV.
No person shall be tried for any crime or offence other than that for which he was surrendered.
ARTICLE V.
A fugitive, accused or criminal, shall not be surrendered under the provisions hereof, when, from lapse of time or other lawful cause, according to the laws of the place within the jurisdiction of which the crime was committed, the criminal is exempt from prosecution or punishment for the offence for which the surrender is asked.
ARTICLE VI.
If a fugitive, accused or criminal, whose surrender may be claimed pursuant to the stipulations hereof, be actually under prosecution, out on bail or in custody, for a crime or offence committed in the country where he has sought asylum, or shall have been convicted thereof, his extradition may be deferred until such proceedings be determined, and until he shall have been set at liberty in due course of law.
ARTICLE VII.
If a fugutive, accused or criminal, claimed by one of the parties hereto, shall be also claimed by one or more powers pursuant to treaty provisions, on account of crimes committed within their jurisdiction, such criminal shall be delivered to that State whose demand is first received.
ARTICLE VIII.
Under the stipulations of this Convention, neither of the Contracting Parties shall be bound to deliver up its own citizens or subjects.
ARTICLE IX.
The expense of the arrest, detention, examination and transportation of the accused or criminal shall be paid by the Government which has preferred the demand for extradition.
ARTICLE X.
Everything found in the possession of the fugitive, accused or criminal, at the time of his arrest, whether being the proceeds of the crime or offence, 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 Contracting Parties, be delivered up with his person at the time of the surrender. Nevertheless, the rights of a third party with regard to the articles aforesaid shall be duly respected.
ARTICLE XI.
The stipulations of this Convention shall be applicable to all territory wherever situated, belonging to either of the 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 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 a colonial possession of Portugal or from territory, included in the preceding paragraph, other than the United States, requisition may be made by superior Consular officers.
It shall be competent for such Diplomatic or superior Consular officers to ask and obtain a mandate or preliminary warrant of arrest for the person whose surrender is sought, whereupon the judges and magistrates of the two Governments shall respectively have power and authority, upon complaint made under oath, to issue a warrant for the apprehension of the person charged, in order that he or she may be brought before such judge or magistrate, that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of the fugitive.
If the fugitive criminal shall have been convicted of the crime for which his surrender 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.
If when a person accused shall have been arrested in virtue of the mandate or preliminary warrant of arrest, issued by the competent authority as provided in Article XI hereof, and been brought before a judge or a magistrate to the end that the evidence of his or her guilt may be heard and examined as hereinbefore provided, it shall appear that the mandate or preliminary warrant of arrest has been issued in pursuance of a request or declaration received by telegraph from the Government asking for the extradition, it shall be competent for the judge or magistrate at his discretion to hold the accused for a period not exceeding two months, so that the demanding Government may have opportunity to lay before such judge or magistrate legal evidence of the guilt of the accused, and if at the expiration of the said period of two months such legal evidence shall not have been produced before such judge or magistrate, the person arrested shall be released, provided that the examination of the charges preferred against such accused person shall not be actually going on.
ARTICLE XIII.
In every case of a request made by either of the two Contracting Parties for the arrest, detention or extradition of fugitives, criminal or accused, the legal officers or fiscal ministry 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 legal means within their or its power; and no claim whatever for compensation for any of the services so rendered shall be made against the Government demanding the extradition, provided, however, that any officer or officers of the surrendering Government so giving assistance, who shall, in the usual 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.
ARTICLE XIV.
This Convention shall take effect from the day of the exchange of the ratification thereof; but either Contracting Party may at any time terminate the same on giving to the other six months’ notice of its intention to do so.
The ratification of the present Convention shall be exchanged at Washington as soon as possible.
In witness whereof the respective Plenipotentiaries have signed the above articles, and have hereunto affixed their seals.
Done in duplicate at the city of Washington, this 7th day of May, one thousand nine hundred and eight.
ELIHU ROOT.
[L. S.]
ALTE.
[L. S.]
And whereas, the said Convention has been duly ratified on both parts, and the ratifications of the two governments were exchanged at Washington on the fourteenth day of November, one thousand nine hundred and eight;
And whereas, in giving their advice and consent to the ratification of the said Convention, and as a part of the act of ratification, the Senate of the United States did, in a resolution adopted on May 22, 1908, state their understanding "that it is agreed by the United States that no person charged with crime shall be extraditable from Portugal upon whom the death penalty can be inflicted for the offence charged by the laws of the jurisdiction in which the charge is pending, and that this agreement on the part of the United States will be mentioned in the ratifications of the treaty and will, in effect, form part of the treaty."
Now, therefore, be it known that I, Theodore Roosevelt, President of the United States of America, have caused the said Convention to be made public to the end that the same and every article and clauce thereof may be observed and fulfilled with good faith by the United States and the citizens thereof, subject to the understanding stated in the said resolution of the Senate.
In testimony whereof, I have hereunto set my hand and caused the seal of the United States of America to be affixed.
Done at the City of Washington this fourteenth day of December in the year of our Lord one thousand nine hundred and eight, and of the Independence of the United States of America, the one hundred and thirty-third.
[SEAL.]
THEODORE ROOSEVELT
ELIHU ROOT
Secretary of State.
NOTES CONCERNING THE DEATH PENALTY, EXCHANGED BETWEEN THE PORTUGUESE MINISTER AND THE SECRETARY OF STATE AT THE TIME OF SIGNATURE OF THE EXTRADITION CONVENTION BETWEEN THE UNITED STATES AND PORTUGAL.
The undersigned Envoy Extraordinary and Minister Plenipotentiary of His Most Faithful Majesty the King of Portugal and the Algarves has the honor to inform the Secretary of State of the United States that he has been instructed by His Excellency the Minister for Foreign Affairs of Portugal to place on record on behalf of the Portuguese Government, with reference to the Extradition Treaty which the Secretary of State and the undersigned have just signed, its understanding that the Government of the United States assures that the death penalty will not be enforced against criminals delivered by Portugal to the United States for any of the crimes enumerated in the said treaty, and that such assurance is, in effect, to form part of the treaty and will be so mentioned in the ratifications of the treaty.
DEPARTMENT OF STATE, Washington, May 7, 1908.
In signing to-day with the Envoy Extraordinary and Minister Plenipotentiary of His Most Faithful Majesty the King of Portugal and of the Algarves the extradition treaty which was negotiated between the Government of the United States and that of Portugal, the undersigned Secretary of State has the honor to acknowledge and to take cognizance of the Minister’s note of this day’s date stating that he has been instructed by His Excellency the Minister for Foreign Affairs of Portugal to place on record, on behalf of the Portuguese Government, its understanding that the Government of the United States assures that the death penalty will not be enforced against criminals delivered by Portugal to the United States for any of the crimes enumerated in the said treaty, and that such assurance is, in effect, to form part of the treaty and will be so mentioned in the ratifications of the treaty.
In order to make this assurance in the most effective manner possible, it is agreed by the United States that no person charged with crime shall be extraditable from Portugal upon whom the death penalty can be inflicted for the offense charged by the laws of the jurisdiction in which the charge is pending.
This agreement on the part of the United States will be mentioned in the ratifications of the treaty and will in effect form part of the treaty.
ELIHU ROOT
VISCONDE DE ALTE,
Minister of Portugal.
35 Stat 2071, 1908 WL 26268 (U.S. Treaty)