Article 14 AMENDMENTS TO ARTICLE 36, PARAGRAPHS 1 AND 2 OF THE SINGLE CONVENTION

Article 14

AMENDMENTS TO ARTICLE 36, PARAGRAPHS 1 AND 2 OF THE SINGLE CONVENTION

Introductory paragraph of article 14 of the 1972 Protocol and article 36, paragraph 1 of the amended Single Convention

Article 36, paragraphs 1 and 2, of the Single Convention shall be amended to read as follows:

"1. (a) Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.

"(b) Notwithstanding the preceding sub paragraph, when abusers of drugs have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after-care, rehabilitation and social reintegration in conformity with paragraph 1 of article 38.

Commentary

1. The 1972 Protocol amends article 36, paragraph 1 by adding subparagraph (b), and consequently the whole original text of paragraph 1 becomes subparagraph 1 (a).

2. The text of subparagraph (b) closely follows, mutatis mutandis, the text of the corresponding subparagraph (b) of paragraph 1 of article 22 of the Vienna Convention.

3. Under the text of subparagraph (b), Parties may substitute measures of treatment' for conviction or punishment of all abusers of narcotic drugs who have intentionally committed an offence covered by subparagraph (a), no matter how serious that offence may be. It may however be expected that, in accordance with the purpose of article 36, Parties will normally do so only in the case of relatively minor offences such as the illicit sale of comparatively small quantities of narcotic drugs for the purpose of obtaining the financial means required to support the seller's drug dependence, or the supply with or without consideration of a small amount of a narcotic drug to a friend abusing it?

4. It is submitted that subparagraph (b) may not be applied to offenders who abuse narcotic drugs occasionally, but only to those who abuse them frequently, i.e. who are dependent on them.

5. There may be a difference of opinion as to the question whether the right of Parties to substitute measures of treatment for conviction or punishment also authorizes them not to prosecute. It is suggested that it would be the better opinion that Parties are bound to prosecute, although under subparagraph (b) they are not required to convict or punish, all offences covered by subparagraph (a). In the process of prosecution a Party could determine whether substitution of measures of treatment for conviction or punishment would be appropriate.

6. It will be noted that Parties may not apply subparagraph (b) to persons dependent on psychotropic substances 3 who have committed an offence covered by subparagraph (a), unless they are also simultaneously abusers of narcotic drugs.

7. It is submitted that substitution of measures of treatment for conviction or punishment could in the light of the purpose of article 36 be desirable only if it can reasonably be hoped that the drug-dependent offender would not only be cured of his dependence, but would also not again commit a serious drug offence.

8. As regards the meaning of the terms "treatment", "education", "after-care", "rehabilitation" and "social reintegration", see below, the comments on article 15 of the 1972 Protocol amending article 38 of the Single Convention.

9. The measures of treatment which may be substituted for conviction or punishment, may also include commitment to an institution of treatment.

10. The provision of subparagraph (b) stipulating that Parties may impose on drug dependent offenders measures of treatment in addition to conviction or punishment only states what they may do anyway. Its inclusion in subparagraph (b) may be explained by the view of the authors of that subparagraph that such additional measures may often be desirable.

11. It may finally be noted that Parties to both the unamended and amended Single Convention would be precluded from replacing conviction or punishment by measures of treatment under subparagraph (b) by their continued obligation to those Parties to the Single Convention which have not accepted the 1972 Protocol (so long as there are any such Parties). Article 39 authorizes only the substitution of more "strict" or "severe" measures for measures required by the Single Convention. Subparagraph (b) is certainly not more "strict" or "severe" than subparagraph (a), i.e. paragraph 1 of article 36 of the unamended Single Convention.

12. Parties to the 1936 Convention could also normally not apply subparagraph (b), since that would be incompatible. with their obligations towards those Parties to that treaty which are not Parties to the amended Single Convention .4

1 in the broad sense including also "education", "after-care", "rehabilitation" and "social feintegration".

2 Or in the case of possession of narcotic drugs for personal consumption if the Party concerned considers possession to be a punishable offence under subpara. (a); 1961 Commentary, paras. 17 to 24 of the comments on article 4 (pp. 112-113).

3 Article 1, para. (e) of the Vienna Convention.

4 As regards the continued force of the 1936 Convention after the 1912, I925 and I931 Conventions have ceased to be in force, see the opinion of the Legal Adviser to the 1961 Conference, 1961 Records, vol. I, p. I72.

Paragraph 2, introductory subparagraph, subparagraph (a) and subparagraph (b), clause (i)

2. Subject to the constitutional limitations of a Party, its legal system and domestic law,

(a) (i) Each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence;

(ii) Intentional participation in, conspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in connexion with the offences referred to in this article, shall be punishable offences as provided in paragraph 1;

(iii) Foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism; and

(iv) Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party in which application is made, and if such offender has not already been prosecuted and judgement given.

(b) (i) Each of the offences enumerated in paragraphs 1 and 2 (a) (ii) of this article shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties. Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

Commentary

1. The 1972 Protocol does not change the English or French text of the introductory subparagraph. It makes some drafting changes in the Spanish text of that subparagraph which do not affect its substance.

2. The text of clause (i) of subparagraph (b) closely follows mutatis mutandis the wording of article 8, paragraph 1 of the Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970. 1 It reproduces the substance of article 9, paragraph 1 of the 1936 Convention.

3. The first sentence of clause (i) represents an amendment of bilateral or multilateral extradition treaties in force at the time when extradition is requested, the amendment being effective between those Parties to such treaties which are Parties to the amended Single Convention.2

4. The second sentence of clause (i) imposes upon Parties to the amended Single Convention an obligation to include in any bilateral or multilateral extradition treaty to be concluded among themselves, the offences enumerated in article 36, paragraph 1, subparagraph (a) and paragraph 2, subparagraph (a), clause (ii). That obligation does not exist in respect of a multilateral extradition treaty if one or more of the contracting States are not Parties to the amended Single Convention. However, those of the contracting Parties to such an extradition treaty which are Parties to the amended Single Convention would between themselves have to treat the above-mentioned offences as extradition crimes under the multilateral extradition treaty, since under clause (i) those offences would be deemed to be included as extraditable offences in that "existing" extradition treaty.

5. It would be in the spirit of clause (i) if Parties to the amended Single Convention would endeavour to include the offences mentioned in the preceding paragraph of the present comments also in bilateral extradition treaties to be concluded with non-Parties to the amended Single Convention, and in multilateral extradition treaties in whose conclusion such non-Parties participate.

6. In view of subparagraph (b), clause (iv) the treaty definitions of the offences which under clause (i) have to be included in extradition treaties to be concluded may cover only "sufficiently serious" infractions; similarly only such infractions need to be deemed to be included as extraditable offences in any extradition treaty existing between Parties to the amended Single Convention.

7. The introductory subparagraph of paragraph 2 subjects the obligations of Parties under subparagraph (b), clause (i) to their respective constitutional limitations, legal system and domestic law. The Parties are by that provision not exempted from the obligation to take legislative actions which may be necessary to carry out clause (i). A Party is however not required to change its constitution or to take such actions as would be incompatible with basic principles of its legal system or domestic law governing the matter. 3

8. Although not expressly stated as under clause (iii), extradition under clause (i) need be granted by the requested Party only in accordance with the conditions of its own law, which must however be consonant with its obligations under clause (i). Moreover, clause (iv) expressly provides that all extraditions under subparagraph (b) need be granted only in conformity with the law of the requested Party .4

1 International Civil Aviation Organization, Doc. 8920;1972 Records, vol. II, para. 2 of the summary records of the eleventh meeting of Committee II (P. 202).

2 Under article 41 of the Vienna Convention on the Law óf Treaties, Parties to a multilateral extradition treaty not covered by para. 1, subpara. (a) of that article intending to accept the 1972 Protocol or to become Parties to the amended Single Convention would have to notify the other Parties to the extradition treaty of their intention and of the contents of the amended clause (i) of subpara. (b/ of para. 2 of article 36 of the Single Convention, document A/CONF.39/27; as regards multilateral extradition treaties, see 1972 Records, vol. II, para. 1 2 of the summary records of the eleventh meeting of Committee II (p. 203); see also the opinion of the Legal Adviser to the 1961 Conference, 1961 Records, vol. II, p. 241.

31961 Commentary, paras.3 to 5 of the comments on article 36, para.2, introductory subpara. (pp. 430-431).

4 See also clause (ii); see also article 9, para. 3 of the I936 Convention.

Paragraph 2, subparagraph (b), clause (ii)

(ii) If a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offences enumerated in paragraphs 1 and 2 (a) (ii) of this article. Extradition shall be subject to the other conditions provided by the law of the requested Party.

Commentary

1. The text of clause (ii), follows mutatis mutandis closely the language of article 8, paragraph 2 of the Convention of 1970 for the Suppression of Unlawful Seizure of Aircraft.'

2. Parties would have the option mentioned in clause (ii) also without that provision. The 1972 Conference included that clause in subparagraph (b) because it obviously found it desirable that a Party to the amended Single Convention which makes extradition conditional on the existence of a treaty should consider the amended Convention as a legal basis for extradition if it receives from another Party to that amended treaty with which it had no extradition treaty a request for extradition of a person having committed any of the offences enumerated in article 36, paragraph 1, subparagraph (a) and paragraph 2, subparagraph (a), clause (ii).

3. It will be noted that clause (ii) does not impose any legal obligation on Parties.2

4. Since exercising the option referred to in clause (ii) is entirely within the discretion of the Parties to which that provision refers, they may subject extraditions granted in accordance with that clause to such legal conditions as they make think fit. The last sentence of clause (ii) explicitly so states.

I See foot-note 1 to the comments on article 36, para. 2, introductory subpara., subpara. (a) and subpara. (b), clause (i).

21972 Records, vol. II, paras. 19 and 26 of the summary records of Committee 1I (pp: 203 and 204).

Paragraph 2, subparagraph (b), clause (iii)

(iii) Parties which do not -make extradition conditional on the existence of a treaty shall recognize the offences enumerated in paragraphs 1 and 2 (a) (ii) of this article as extraditable offences between themselves, subject to the conditions provided by the law of the requested Party.

Commentary

1. Clause (iii) follows mutatis mutandis closely the text of article 8, paragraph 3 of the Convention of 1970 for the Suppression of Unlawful Seizure of Aircraft.' It incorporates a provision similar to one contained in article 9, paragraph 2 of the 1936 Convention. Contrary to that provision of the 1936 Convention, it does not exclude from its - scope Parties which make extradition conditional upon reciprocity?

2. The obligations of a Party under clause (iii) are by virtue of the introductory subparagraph of paragraph 2 subject to its "constitutional limitations" its "legal system and domestic law". A Party is thereby not relieved from its obligation to take legislative measures which may be necessary for the implementation of clause (iii). It is however not required to change its constitution or to take such actions as would be incompatible with basic principles of its legal system or domestic law governing the granting of extradition

3. The clause under consideration expressly stipulates that extradition which it governs needs to be granted only with the conditions of the law of the requested Party; but these conditions must be consonant with the obligations of that Party under clause (iii). Moreover, clause (iv), referring to all provisions of subparagraph (b), states that "extradition shall be granted in conformity with the law of the Party to which application is made".

1 See foot-note 1 of the comments on article 36, para. 2, introductory subpara., subpara. (a) and subpara. (b), clause (i).

2 Compliance with clause (iii) would represent "reciprocity".

3 See also para. 7 of the above comments on para. 2, introductory subpara., subpara. (a) and subpara. (b), clause (i).

Paragraph 2, subparagraph (b), clause (iv)

"(iv) Extradition shall be granted in conformity with the law of the Party to which application is made, and, notwithstanding subparagraphs (b) (i), (d) and (iii) of this paragraph, the Party shall have the right to refuse to grant the extradition in cases where the competent authorities consider that the offence is not sufficiently serious."

Commentary

1. Clause (iv) reproduces the substance of the proviso of the unamended article 36, paragraph 2, subparagraph (b); it is also patterned after article 9, paragraphs 3 and 4 of the 1936 Convention.'

2. The clause under consideration stipulates that "extradition shall be granted in conformity with the law" of the requested Party. This means that extraditions need to be granted only in conformity with all material and procedural conditions of that law. These conditions must however be consonant with the obligations of Parties under clause (i) or (iii), as the case may be.

3. Clause (iv), and consequently that stipulation, applies to all extraditions covered by subparagraph (b), to those to be granted pursuant to clauses (ii) or (iii) (both of which contain equivalent provisions)2 and as well to those to be granted under clause (i) which does not have such a provision.

4. In view of the different principles prevailing in different countries on matters of . extradition and more generally on matters of material and procedural penal law it must be assumed that under clause (iv) requested Parties have a very broad discretion to decide whether an offence is "sufficiently serious" to warrant extradition.

1 The proviso of the unamended text refers to provisions which are only recommendatory while clause (iv) applies to the obligatory clauses (i) and (iii) as well as to the non-obligatory clause (ii).

2 This apparent repetition seems to be due to the drafting history of subpara. (b), clauses (i), (ii) and (iii) being patterned after article 8, paras.1, 2 and 3 of the Convention of 1970 for the Suppression of Unlawful Seizure of Aircraft (document 8920 of the International Civil Aviation Organization), and clause (iv) retaining, with some drafting changes, the proviso of article 36, para. 2, subpara. (b) of the unamended Single Convention.