Treaty on International Penal Law
|Publisher||Regional Treaties, Agreements, Declarations and Related|
|Publication Date||23 January 1889|
|Related Document||Treaty on International Penal Law (Revised)|
|Cite as||Regional Treaties, Agreements, Declarations and Related, Treaty on International Penal Law, 23 January 1889, available at: http://www.refworld.org/docid/3ae6b3781c.html [accessed 30 April 2016]|
|Comments||Adopted by the First South American Congress on Private International Law in Montevideo on 23 January 1889.|
Title I - ON JURISDICTION
Crimes and offenses shall be subject to trial by the courts and punished according to the laws of the country where the offense was committed, regardless of the nationality of the agent, or of the victim or wronged party.
Such violations of criminal law as are perpetrated in a State, but exclusively affect rights and interests guaranteed by the laws of another State, shall fall under the jurisdiction of the State affected by them, and shall be punished according to its laws.
When an offense affects different States, the jurisdiction of the State in whose territory the offender is caught shall prevail.
If the offender should seek shelter in a State different from the ones affected by his action, the jurisdiction of the State which first requests the extradition shall prevail.
In the cases referred to in the preceding article, if there is only one offender there shall be only one trial, and the penalty to be imposed shall be the severest one imposed by the penal laws of the different States concerned.
If the penalty ascertained to be the severest one should be one not permitted in the State in which the trial takes place, the severest penalty which is permitted shall be imposed.
The court shall, in all cases, apply to the executive power in order that due notice of the initiation of the proceedings may be given through it to the interested States.
Each one of the contracting States shall have the power to expel from its territory, under its own laws, offenders who have taken shelter therein, if after notice to the State against which the refugee committed an extraditable offense no action shall have been taken by such State.
Acts done in the territory of a State, which are not punishable according to its laws, but are punishable in another country, in which they produce injurious results, shall not be made the subject of judicial action in the latter, unless the offender is found within its territory.
The same rule shall also apply to those offenses which do not admit of extradition.
In the trial and punishment of offenses committed by a member of a legation, the rules of public international law shall be observed.
Crimes committed on the high seas, or on neutral waters, on board either a man-of-war or a merchant vessel, shall be tried and punished according to the laws of the State to which the flag of the vessel belongs.
Crimes and offenses committed on board a man-of-war when in the waters of a foreign nation shall be tried and punished according to the laws of the State to which the vessel belongs.
The same rule shall be applicable to offenses committed outside the vessels by members of the crew thereof, or by persons employed on board the same, if the said crimes or offenses infringe principally the law or rules of discipline in force upon the vessel.
But when the crimes or offenses herein referred to, committed outside the vessel, were so committed by persons not belonging to the ship's company, then the jurisdiction to try the offenders shall belong to the State in whose territorial waters the vessel may happen to find itself.
Crimes and offenses committed on board a man-of-war or on board a merchant vessel, under the circumstances mentioned in Article 2, shall be tried and punished as provided by that article.
Crimes and offenses committed on board a merchant vessel shall be tried and punished according to the laws of the State in whose territorial waters the offense was committed.
For purposes of jurisdiction, territorial waters are declared to be those comprised in a belt five miles wide running along the coast, either of the mainland or of the islands which form part of the territory of each State.
Acts of piracy, as defined by public international law, shall be subject to the jurisdiction of the State under whose power the offenders may happen to fall.
Criminal prosecution shall be governed by the laws of the State having jurisdiction to punish the offense.
Title II - ON ASYLUM
No offender who has taken refuge in the territory of a State shall be surrendered to the authorities of any other State except in compliance with the rules governing extradition.
Political refugees shall be afforded an inviolable asylum; but it is the duty of the nation of refuge to prevent asylees of this kind from committing within its territory any acts which may endanger the public peace of the nation against which the offense was committed.
Such persons as may be charged with non-political offenses and seek refuge in a legation, shall be surrendered to the local authorities by the head of the said legation, at the request of the Ministry of Foreign Relations, or of his own motion.
Said asylum shall be respected with regard to political offenders, but the head of the legation shall be bound to give immediate notice to the government of the State to which he is accredited; and the said government shall have the power to demand that the offender be sent away from the national territory in the shortest possible time.
The head of the legation shall, in his turn, have the right to require proper guarantees for the exit of the refugee without any injury to the inviolability of his person.
The same rule shall be applicable to the refugees on board a man-of-war anchored in the territorial waters of the State.
The provisions of Article 15 shall not be applicable to deserters from vessels of war while in the territorial waters of a State.
Said deserters, whatever their nationality may be, shall be surrendered by the local authorities, upon proper identification, whenever the legation, or if there is no legation, the consular officer of the country concerned may request it.
Title III - EXTRADITION
The signatory States shall be bound to deliver up to another such offenders as have taken refuge within its territory, whenever the following circumstances shall concur, namely:
1. That the nation which claims the offender has competent jurisdiction to take cognizance of and punish the offense with which the refugee is charged.
2. That the kind and gravity of the offense are such as to justify extradition.
3. That the nation which demands the extradition has presented such documents as, under its own laws, authorize the imprisonment and trial of the offender.
4. That the action against the offender has not been barred by the statute of limitations, under the laws of the country which makes the demand.
5. That the offender has not been sentenced for the same offense and served out his sentence.
Extradition shall in no case be barred by the nationality of the offender.
The offenses for which extradition is warranted are the following:
1. As to alleged offenders, those offenses which under the laws of the country which demands the extradition are punishable by imprisonment for not less than two years, or the equivalent thereof.
2. As to the convicted offenders, those offenses the minimum penalty for which is imprisonment for one year.
No person shall be delivered up on extradition proceedings when the offense charged is one of the following:
Slander and libel;
Crimes against worship.
But common (nonpolitical) offenses connected with any of the above named shall warrant the extradition of the offenders.
Political offenses, offenses subversive of the internal or external safety of a State, or common offenses connected with these, shall not warrant extradition.
The determination of the character of the offense is incumbent upon the nation upon which the demand for extradition is made; and its decision shall be made under and according to the provisions of the law which shall prove to be most favorable to the accused.
No civil or commercial action affecting the offender shall prevent the extradition from being accomplished.
The surrender of the offender may be delayed as long as he shall continue subject to the penal action of the State from which he is demanded; but the extradition proceedings shall not be interrupted for that reason.
Such offenders as shall have been delivered up on extradition proceedings, shall never be either tried or punished for political offenses, or for any acts connected with political offenses, previously committed.
But said offenders may be subject to trial and punishment upon consent of the State which surrendered them, in accordance with the terms of the present treaty, for offenses which are extraditable but which did not form part of the charge upon which extradition was granted.
When several nations demand the surrender of an offender for different offenses, he shall be surrendered to the nation against which the gravest offense was committed in the judgment of the State upon which the requisition has been made. If the offenses are equally grave, preference shall be given to the nation which had priority in the demand for extradition; if all the demands bear the same date, the country upon which the demand is made shall determine the order of surrender.
If, after an offender is delivered up to one State, a new demand for his extradition is made by another State, it shall be optional with the State which first granted the extradition whether or not to accede to the new demand, provided that the prisoner has not been set at liberty.
When the penalty for the offense with which the offender is charged is the penalty of death, the nation which grants the extradition may demand the imposition of the penalty next lower in degree.
Title IV - PROCEEDINGS FOR EXTRADITION
Demands for extradition shall be presented through the respective legations or consular offices, and, in the absence of these, directly from Government to Government, and they shall be accompanied by the following documents:
1. In cases of alleged delinquents, a legalized copy of the penal law applicable to the offense on which the demand is based, and of the warrant of arrest and other antecedents referred to in paragraph 3 of Article 19.
2. In cases of those already sentenced, by a legalized copy of the final sentence of condemnation passed against the offender and the proper evidence that the condemned man was summoned and was either represented at the trial, or legally adjudged in contumanciam.
If the State upon which the demand for extradition is made should deem the said demand to be unwarranted, owing to some defects of form, it shall return the papers to the Government which made it, with the proper explanation of the defects.
If the demand for extradition is made in due form, the Government upon which it is made shall transmit all the antecedents to a judge or tribunal of competent jurisdiction on the subject, and the said judge or tribunal shall order the arrest of the offender and the sequestration of any property related to the crime, if it is deemed proper, under the provisions of this Treaty.
In all cases involving the arrest of the refugee, due notice shall be given to him within the twenty-four hours following his arrest, of the cause for his arrest and of the right which is vested in him under the following article.
The prisoner shall be allowed, within three days and no more, to be counted from the day following that on which notification was first received, to object to his extradition on the following grounds:
1. That he is not the person to whom the demand for extradition refers.
2. That the documents upon which the demand is based are not in due form.
3. That the extradition is not warranted.
Evidence shall be admitted in the cases in which it may be necessary, governed by the same rules, as far as relevancy and time are concerned, as are in force in the country upon which the demand is made.
After the whole evidence is on file, the judge or tribunal shall decide within ten days, and without any further steps, whether the extradition must or must not be granted.
An appeal can be taken against this decision to the competent court within three days, and that court shall decide within five days.
If the decision is to the effect that the extradition be granted, the tribunal which rendered it shall give notice thereof immediately to the executive power, in order that the proper provision may be made by it for the delivery of the prisoner.
If the decision be adverse to the extradition, the judge or tribunal shall at once order the release of the prisoner, and shall give due information to the executive power by sending to it a copy of its decision.
If extradition was refused due to insufficient documents, the case shall be reopened provided that the Government demanding the extradition presents new documents, or supplements those which had been presented before.
Whenever the prisoner acquiesces in his surrender, the court, upon entering the said acquiescence in due form, shall render a decision, without further transaction, granting his extradition.
Every article or object related to the crime on which the extradition is based and found in the possession of the offender, shall be yielded to the State which obtained the surrender.
Those found in the possession of third parties shall not be surrendered unless the possessors thereof have first been given the proper hearing, and unless their objections have been resolved.
When the extradition is to take place by land, the Government which delivers up the prisoner shall be bound to take the latter to the most convenient point of its frontier.
When the extradition is to take place over sea or by a river route, the prisoner shall be delivered up to the agents of the other nation at the most appropriate port of embarkation.
The nation requesting the extradition shall always have the right to send one or more security agents for the proper custody of the prisoner; but the functions and power of said officers shall be subordinate to the agents or authorities of the country which makes the delivery, or of the country over which the prisoner is conveyed.
Whenever the extradition of a prisoner has been granted but the delivery cannot be actually accomplished without passing through the territory of another State, the latter shall grant permission to do so, upon no other requisite than the exhibition, diplomatically, of the decree of extradition issued by the Government which granted it.
If the transit is granted, the provisions of the third paragraph of the preceding article shall be complied with.
The expenses which may be incurred owing to the demand of extradition up to the moment of the delivery, shall be paid by the State upon which the demand is made; but all those incurred after such delivery shall be paid by the Government making the demand.
Whenever the extradition is granted, and the offender involved is a convicted criminal, the Government which obtained the extradition shall be bound to communicate to the Government which granted it, the decision rendered in the case or trial for which it was granted.
Title V - OF THE PRECAUTIONARY ARREST
When the signatory Governments deem the case to be urgent, they shall request by mail or by telegraph that administrative procedures leading to the provisional arrest of the offender, as well as to the security of the objects related to the crime, be taken, provided that a sentence or a warrant of arrest is positively asserted to have been issued and the nature of the offense with which he is charged is clearly defined.
The person so arrested shall be set at liberty if within ten days subsequent to the arrival of the first mail sent after the date of the petition for the provisional arrest no formal demand of extradition shall have been made by the requesting State.
In all cases of precautionary arrest the responsibilities thereof belong to the Government which requested it.
Title V - GENERAL PROVISIONS
No simultaneous ratification of this treaty by all the signatory States shall be necessary for its validity. Any State which approves of the treaty shall communicate its approval thereof to the Governments of the Argentine Republic and of the Oriental Republic of Uruguay, which shall give notice thereof to the other contracting States. This process shall take the place of an exchange.
The exchange having been made in the manner provided for in the preceding article, the treaty shall remain in force for an indefinite period of time.
If any one of the contracting nations should deem it advisable to discontinue its adhesion to the treaty, or should desire to introduce modifications into its provisions, it shall be in its power to do so provided that it give notice of its intention to do so to the other parties; but it shall not be released from its obligation until after two years have elapsed after the notice aforesaid was given by it; and in these two years it shall endeavour to reach a new agreement on the subject.
The stipulations of this treaty shall be applicable only to offenses committed during the time in which it has been in force.
The provisions of Article 47 are applicable to nations which have not attended this Congress, but wish to adhere to this treaty.
IN TESTIMONY WHEREOF, the Plenipotentiaries of the cited Nations sign it and set thereto the seal on five copies, in Montevideo, on the twenty-third day of January in the year of one thousand eight hundred and eighty nine.
Here follow the signatures of the Plenipotentiaries.