Treaty on International Penal Law (Revised)

Treaty on International Penal Law (1940)

SIGNED IN MONTEVIDEO ON MARCH 19, 1940 AT THE SECOND SOUTH AMERICAN CONGRESS ON PRIVATE INTERNATIONAL LAW

His

Excellency the President of the Oriental Republic of Uruguay; His Excellency the President of the Republic of the United States of Brazil; His Excellency the President of the Republic of Colombia; His Excellency the President of the Republic of Bolivia; His Excellency the President of the Argentine Republic; His Excellency the President

of the Republic of Peru, and His Excellency the President of the Republic of Paraguay,

Have agreed to conclude the present treaty through the medium of their respective Plenipotentiaries,

assembled in congress in the City of Montevideo as a result of the initiative taken by the Governments of the Oriental Republic of Uruguay and the Argentine Republic.

Here follow the names of the Plenipotentiaries.

The said representatives,

having presented their full powers, which were found to be in due form,

having taken into consideration the fact that the Treaty on International Penal Law signed at Montevideo on January 23, 1889,

might well be subjected to a process of revision for the purpose of modifying and harmonizing the rules therein laid down,

and bearing in mind the conferences and discussions held in this connection, have agreed upon the following provisions:

Title I - OF JURISDICTION AND THE LAW APPLICABLE THERETO

Article 1

Crimes, whatever may be the nationality of the agent, of the victim, or of the injured party, shall be tried by the tribunals, and punished according to the laws, of the State in whose territory they are committed.

Article 2

Crimes affecting two or more States and committed by one or more offenders, shall come under the jurisdiction of the judges or tribunals of the place where the said crimes were perpetrated; and the local laws must be applied in the corresponding proceedings.

If the crime was perpetrated in more than one country, it shall come under the jurisdiction of the tribunals of the first State to take judicial cognizance thereof, and the laws of that State must apply.

Article 3

In cases involving connected crimes committed by one or more offenders, whether as principals, as accomplices, or as harborers, in the territory of two or more signatory States, preference shall be given in regard to trial of the crime, to the authorities and penal law of the country in which the more serious offense was perpetrated, a matter which shall be left to the discretion of the requested State.

Article 4

In the cases to which Articles 2 and 3 refer, the judge of the proceedings shall communicate with the Executive Power, in order that the latter may notify the States interested in the trial, of the institution of proceedings.

Article 5

Acts committed in the territory of a given State, which are not susceptible of punishment according to its own laws but which are punishable by the State wherein they produce their effects, may not be tried by the judges or tribunals of the latter unless the offender shall be found within its jurisdiction.

A similar rule applies with respect to those crimes for which the extradition of the offenders is not authorized.

In cases involving acts committed by public functionaries who are serving in a foreign country, if such acts constitute a criminal violation of the specific duties attached to the office with which they have been entrusted, the foregoing rule shall not apply, and the said functionaries shall be tried and punished by the judges or tribunals of the offenders' own State, in conformity with its laws.

Article 6

Any of the signatory States may expel, in accordance with its laws, alien offenders who have taken refuge in its territory, provided that after the appropriate request has been presented to the authorities of the country where any of the extraditable crimes were committed, the surrender of the said offenders is not requested, through the channel of extradition, within ninety days.

Article 7

The principles of public international law shall be observed for the trial of crimes committed by any of the functionaries of a diplomatic mission or by any member of their respective suites.

A similar procedure shall be followed with respect to Chiefs of State and their suites; and also with respect to members of armed forces, when the crime has been committed within the bounds of the place where they are stationed, and bears a legal relationship to the said forces.

Article 8

Crimes committed on the high seas, whether on board airplanes, or on men-of-war, or on merchant ships, must be tried and punished according to the law of the State whose flag the vessel flies.

Article 9

Crimes perpetrated on board men-of-war or military planes of one State, while these are in the territorial waters of another State, shall be tried by the tribunals, and punished according to the laws, of the State to which the said men-of-war or airplanes belong.

If only persons who do not belong to the crew of the warship or airplane, participate in the commission, on board, of such acts, prosecution and punishment shall be conducted in accordance with the laws of the State within whose territorial waters the warship or airplane is located.

The laws of the country to which the ship or airplane belongs, shall also govern the trial and punishment of such punishable acts as are committed elsewhere than on board by members of the crew or by individuals charged with the exercise of some function on board, when the said acts affect only the disciplinary order of those ships or planes.

Article 10

Crimes committed on board vessels other than vessels of war shall be tried and punished by the judges or tribunals, and according to the laws, of the State in whose territorial waters a given vessel was located at the time when such a crime was committed.

If the crimes are committed on board private airplanes which are not in flight, the corresponding trial and imposition of punishment shall be conducted according to the laws, and by the judges of the territory where the crimes occurred.

Article 11

Trial and punishment for crimes committed on board airplanes or on men-of-war or on merchant ships, under the conditions specified in Articles 2 and 3, shall be conducted according to the provisions laid down in those articles.

Article 12

For the purposes of criminal jurisdiction, territorial waters are declared to be those included in a belt five miles wide running along the coast of the mainland or of the islands which constitute part of the territory of the various States.

Article 13

A riparian State has the right to continue on the high seas a pursuit begun within its territorial waters, as well as the right to arrest and try the vessel that has committed an offense within the said waters. In all cases where a capture is effected on the high seas, that fact shall be communicated without delay to the State whose flag the vessel flies. The pursuit must be broken off instantly when the vessel enters [other] territorial waters, or a port belonging to its own country or to a third State.

Article 14

International piracy, traffic in narcotics, white slavery, and the destruction or damage of submarine cables, are subject to the jurisdiction and law of the State into whose power the offenders may come, regardless of the place where such crimes were committed; but without prejudice to the preferential right of the State in which the criminal acts were perpetrated, to request the extradition of the offenders.

Article 15

Crimes committed on board airplanes in flight over a foreign State shall come under the jurisdiction of the latter if the airplane should make its first landing there. Otherwise, such jurisdiction shall appertain to the State in whose territory that first landing is made, and the laws of the subjacent State shall apply. When it is not possible to determine the territory over which the crime was committed, the case shall be governed by the law of the State whose flag the plane flies.

The pilot of an airplane in flight, who has been notified of the commission of a crime, is bound to land at the first known airport and inform the authorities of that port.

Article 16

Prescription of actions and of penalties shall be determined by the judges or tribunals, and in accordance with the laws, of the State to which cognizance of the crimes in question appertains.

Article 17

A judgment rendered in any of the signatory States shall be recognized in those States for the purpose of establishing the repetition or habitual commission of the offense, or a tendency thereto, on the part of the accused; and also in order to make it obligatory that he accede, while he is in their territory, to indemnification of the damage, to measures of security against his person, and to the interdiction resulting from the proceedings.

The signatory States shall furnish reports in regard to the judicial or police antecedents on file in their archives, if they are requested to do so by another interested State.

Title II - OF EXTRADITION - CHAPTER I - OF THE SYSTEM OF EXTRADITION

Article 18

The contracting States bind themselves to surrender, if they are requested to do so, persons who have been prosecuted or condemned by the authorities of one of those States, and who are found in the territory of another.

The request for surrender shall be granted in accordance with the procedural formalities in force within the requested State, provided that the following conditions are both met:

(a)The person to be surrendered must have been condemned by final judgment to one year in prison, at least; or, if the case concerns an indicated person, the crime that constitutes the subject-matter of the prosecution must be punishable, according to the laws of the requesting State, by a minimum intermediate penalty of two years' imprisonment. Half the sum of the extremes within which the particular penalty involving deprivation of liberty is fixed, shall be considered as the intermediate penalty.

(b)The requesting State must have jurisdiction to try and to pass sentence concerning the crime which motivates the demand, even when the acts involved have been committed outside the territory of the contracting States.

Article 19

The nationality of the accused may not be invoked as a reason for refusing extradition, except when a constitutional provision establishes otherwise.

Article 20

Extradition shall not be granted:

(a)For the crime of dueling;

(b)For the crime of adultery;

(c)For the crimes of libel and slander, even when perpetrated through the medium of the press;

(d)For political crimes;

(e)For common crimes committed with a political purpose, except when, in the opinion of the judge or tribunal receiving the request, the common character manifestly predominates;

(f)For common crimes in cases where, in the opinion of the judge or tribunal of the requested State, it can be inferred from the attendant circumstances that the purpose in making that request is preponderantly political;

(g)For essentially military crimes, exclusive of those governed by the common law. If the person sought is charged with a military crime which is also punishable by the common law, he shall be surrendered with the reservation that he is to be tried only in accordance with the said law and by the ordinary tribunals;

(h)When the person sought has been or is being tried, for the same act and in accordance with the provisions of this treaty, in the requested State; or when the action or penalty has been invalidated by prescription, according to the laws of the requesting State, before the seizure of the accused;

(i)When the person sought would have to appear before a tribunal or court taking cognizance of exceptions.

The determination of the character of the offenses involved appertains exclusively to the authorities of the requested State, on the basis of the law more favorable to the accused.

Article 21

No civil or commercial action involving the accused shall hinder his extradition.

Article 22

When the individual sought is deprived of his freedom by virtue of a prosecution or a service of sentence in the requested State, his surrender may be postponed until the restriction on his freedom has been removed, or the sentence has been served; but in the meantime, prescription of the action or penalty in question shall be suspended.

Article 23

The murder of the Chief of a contracting State, or an attempt upon his life, shall not be regarded as a political crime or act connected therewith.

Article 24

Persons whose extradition has been granted may not be tried for crimes previous to those on which the extradition is based.

Crimes constituting grounds for extradition may be tried and punished, provided that the requested State gives its consent previously and in conformity with the terms of this treaty.

Article 25

When the extradition of a given individual is demanded by different States, and the demands are based upon the same crime, preference shall be accorded to that of the State in whose territory the crime was perpetrated; or, if it was committed in different countries, preference shall be given to the first demand. If different acts are involved, preference in granting the extradition shall be given to the State in whose territory the more serious crime was committed, according to the judgment of the requested State.

In cases involving different acts which the requested State regards as equally serious, the preference shall be determined by the order in which the requests are received.

Article 26

In the cases contemplated in paragraphs 2 and 3 of the foregoing article, the requested State may, as a condition of granting the extradition, stipulate that the person demanded must also be subject to ulterior extradition.

Article 27

In no case shall the death penalty be imposed for the crime for which extradition has been granted.

Article 28

The foregoing rules will apply in the case of persons condemned to measures of security, provided that the latter consist of deprivation or restriction of freedom, and that for their extinction more than a year has yet to elapse.

Chapter II - OF EXTRADITION PROCEDURE - of TITLE II - OF EXTRADITION -

Article 29

The demand for extradition must be made by the appropriate diplomatic agent or, in default thereof, either by the consular agents or directly from Government to Government; and it must be accompanied, according to whether the persons involved are accused or condemned persons, either by a copy of the order of imprisonment or judicial order providing for deprivation of freedom, issued by the competent authorities, or by an authenticated copy of the judgment of condemnation.

The records supplied must include a precise statement as to the act on which the charge is based, and the date and place of its occurrence. The said records shall be accompanied by copies of the laws applicable to the case, as well as by copies of those relative to prescription as it affects the action or penalty in question. Data and information regarding antecedents, to facilitate identification of the person sought, shall also be included.

Article 30

The demand for extradition of a condemned person cannot be based on a sentence rendered by default, that is to say, a sentence rendered when the accused has not been personally summoned to defend, or when he has been summoned but has not appeared. However, the requested extradition may be granted if the requesting State promises to reopen the case in such a way as to allow for the defense of the accused.

Article 31

If the demand for extradition has been made in due form, the requested Government shall send the documents on the case to the competent judge or tribunal, who must pass upon the propriety of the said demand, on the basis of the provisions contained in Articles 29 and 30; and, whenever the case warrants such action, the said judge or tribunal shall take the necessary steps for the apprehension of the person sought, ordering his arrest and the seizure of the articles involved in the crime, if they believe this to be the proper procedure.

Article 32

If the judge of the requested State considers that the demand is legally inadmissible because of some defect of form, he shall advise the judge of the requesting State as to what documents are lacking and shall fix a reasonable time-limit for their remission.

Article 33

In cases where the arrest is made, the party concerned shall be informed of the cause of arrest within twenty-four hours.

Within a period of three days and no more, reckoned from the day following the notification, the interested party may oppose exceptions based on the following grounds:

(a)Incompetence of the judge of the requested State who ordered the arrest;

(b)The fact that the said party is not the person sought;

(c)Defects of form in the document presented;

(d)Impropriety of the demand for extradition.

Article 34

In cases where it is necessary to verify the allegations, the question shall be laid open for proof; and the provisions of the procedural law of the requested State shall govern with respect to such proof and to the time allowed for it.

Article 35

When the proof has been produced, a decision on the question shall be reached without further proceedings, by a declaration as to whether or not grounds for extradition exist.

In cases where cognizance of the demand appertains originally to the judge of first instance, the decision shall be appealable to the competent tribunal.

Article 36

If the sentence is favourable to the demand for extradition, the tribunal which renders the decision shall communicate it immediately to the Executive Power, in order that he may take the steps necessary for the surrender of the culprit.

If the sentence is unfavourable, the judge or tribunal, once it has become final, shall order the immediate release of the prisoner and shall so advise the Executive Power, enclosing a copy of the said sentence in order that the Executive may bring it to the knowledge of the requesting Government.

Article 37

If the prisoner acquiesces in the demand, the judge or tribunal shall draw up a statement regarding the terms of that acquiescence, and shall, without further proceedings, declare that extradition is proper.

Article 38

Articles found in the possession of the person sought, if they were acquired in consequence of the act in question, if they were used in its execution, if the act was perpetrated upon them, or if they constitute evidence in some other way, shall be seized and delivered to the demanding State, even though the extradition may fail to take place owing to the death or disappearance of the accused.

Article 39

In cases where the delivery of the accused is to be effected over a land route, the requested State shall transfer him to the most suitable point on the frontier.

When his transfer must be effected over a maritime, fluvial or air route, he shall be delivered to those agents whom the requesting State may appoint, at the most suitable port or airdrome of embarkation.

The requesting State may, in any case, appoint one or more police agents; but they shall act as subordinates of the agents or authorities representing the territory of the requested State, or that of the State of transit.

Article 40

If it should be necessary to traverse the territory of an intermediate State in order to surrender a prisoner whose extradition has been agreed to by one State in favor of another, such transit shall be permitted by the said intermediate State without any requirement other than the exhibition through diplomatic channels of the proper attestation, in the form of a decree of extradition which authorized the surrender.

Article 41

The expenses incurred in the extradition of the offender shall be borne by the requested State until the moment when the surrender takes place; and thenceforth, they shall be borne by the requesting Government.

Article 42

When extradition of a person under indictment has been accorded, the Government whose request was granted shall communicate to the Government that granted it, the final judgment pronounced in the case which constituted the grounds for extradition.

Article 43

When extradition has been accorded, and the person sought has been placed at the disposal of the diplomatic, consular or police agent of the demanding State, he shall be released if, within a period of forty days from the date of the pertinent communication, he has not been sent to his destination; always provided that no request for a reasonable delay has been presented. In such circumstances, no new demand based upon the same grounds will be admissible.

Article 44

When the request for extradition has been granted, the requesting State agrees to try the accused, in accordance with Article 24, exclusively for the act for which he was surrendered and not for any previous act, unless he should remain voluntarily for more than thirty days, after being released, in the territory of the requested State.

Article 45

During the extradition proceedings the person detained may not be released on bail.

Title III - OF PROVISIONAL ARREST

Article 46

In urgent cases, the contracting States may request by post or by telegraph that steps be taken for the arrest of the accused and for the seizure of articles connected with the crime, once the nature of that crime has been determined and the existence of an order of imprisonment issued by a competent judge, has been invoked.

In such cases, the prisoner shall be released if, within sixty days from the date of his arrest, the formal demand for extradition, duly drawn up, has not been presented to the requested State. When that interval has elapsed and the prisoner has been released, his arrest cannot be requested again until after the documents required by Article 29 have been presented.

Article 47

In cases of provisional arrest, the release of the accused shall be effected without prejudice to the retention of the articles mentioned in Article 38, for a reasonable time, to be fixed by the judges of the State which proceeded to the arrest and in accordance with the attendant circumstances.

Article 48

In all cases of provisional arrest, the responsibilities which may arise therefrom appertain to the State that requested it.

Title IV - GENERAL PROVISIONS

Article 49

The simultaneous ratification of this treaty by all of the signatory States is not necessary in order to bring it into operation. The States which approve it shall communicate their approval to the Government of the Oriental Republic of Uruguay, so that the latter may notify the other contracting States to that effect. This procedure shall take the place of an exchange.

Article 50

When the exchange has been made, in the form indicated by the preceding article, this treaty shall be effective from that time forth indefinitely.

Article 51

If any of the contracting States should deem it advisable to withdraw its adherence to the treaty or introduce changes into the said instrument, it shall so advise the other signatories; but the withdrawal shall not take effect until two years after the date of denunciation, during which time an effort to reach a new accord shall be made.

Article 52

No demand for extradition in connection with a crime committed before the exchange of the ratifications of this treaty may be based upon the provisions therein contained.

Article 53

Article 49 applies also to States which have not attended this Congress, but which wish to adhere to the present treaty.

IN WITNESS WHEREOF, the Plenipotentiaries of the aforesaid nations sign the present treaty in Montevideo on the 19th day of March, 1940.

Here follow the signatures of the Plenipotentiaries.

Note: The following countries are signatories to this treaty: Argentina, which signed with a reservation, Bolivia, Brazil, Colombia, Paraguay, and Peru. Uruguay, which is the depositary country, has deposited its instrument of ratification.

RESERVATION

The Delegation of the Argentine Republic reserves the right to differentiate between "political offender" and "international terrorist".

States Parties

Total Number of States Parties: 1

Most Recent Ratification: Paraguay 13 March 1961

Countries

Signatures

Ratification/accession

Argentina

19 Mar 1940

Bolivia

19 Mar 1940

Brazil

19 Mar 1940

Colombia

19 Mar 1940

Paraguay

19 Mar 1940

13 Mar 1961

Peru

19 Mar 1940

Uruguay

19 Mar 1940

Declarations and Reservations

Argentina

(Reservation made at the time of signature): The delegation of the Argentine Republic reserves the right to differentiate between "political offender" and "international terrorist".