File No. 10334.
The German Ambassador to the Secretary of State.
Washington, December 7, 1907.
Mr. Secretary of State: The extradition of the merchant Georg Bartholomaus from the United States of America was in due time granted for the offense of forgery charged against him in the warrant of arrest issued on the 3d of July, 1905, by the Prussian provincial court of Kassel, and the accused was sent back to Germany in September, 1905.
Bartholomaus was sentenced by the Prussian court of Kassel, on January 31 of last year, on the above-described count of two years and three months’ imprisonment, of which three months of detention pending trial were considered as having been served. Bartholomaus will serve this sentence in the jail at Kassel-Wehlheiden until the 31st of January of next year.
Another criminal action against the extradited man by the Government attorney at Kassel is still pending for the offense of fraudulent bankruptcy, which was committed before Bartholomaus fled to the United States. Extradition on the ground of that offense was not asked at the time because it was not extraditable under the extradition treaty of June 16, 1852.
The German Government understands that in extradition cases occurring between the German Empire and the United States of America the extradited person can only be prosecuted and punished for offenses charged against him and in support of which evidence has been submitted with the request for extradition and found adequate in the course of extradition proceedings.
[Page 518]There is no provision in the existing extradition treaty as to whether and how a person extradited to Germany from the United States of America may be prosecuted and punished for an offense committed prior to extradition.
The German Government is of opinion that the principle under which an extradited person is not amenable or subject to punishment for offenses committed before he was extradited other than those for which extradition was granted does not confer absolute immunity for all time but that the limitations placed upon the prosecution of an extradited person on account of offenses committed prior to extradition lapse when the sojourn of the prosecuted person in the country is no longer the immediate consequence of his extradition. This will undoubtedly be admitted to be the case when the extradited person has left the country to which he was extradited and subsequently returns thereto. It will also be admitted to be the case when the extradited person, although free to leave that country, nevertheless remains there of his own will. For a person who voluntarily continues to reside in the country to which he was extradited can no longer be considered as an extradited person.
This seems to have been also the understanding of the Government of the United States of America. The then envoy of the United States submitted on the 18th of July, 1891, a draft for a new extradition treaty which, by its Article V, provided that no extradited person could, without his consent, freely and publicly declared, be prosecuted or sentenced for any crime or offense committed prior to extradition unless he had had the opportunity to return to the country from which he had been extradited.
Again, Article III, section 1, of the extradition treaty between the United States of America and the Republic of Nicaragua of March 1, 1905, contains a provision that the extradited person may be prosecuted for an offense committed prior to the extradition and not provided for by the treaty if he has not left the country to which he was extradited within one month after his final discharge.
In accordance with the usual course followed toward foreign States by Germany in extradition cases, it is proposed to allow Bartholomaus a month within which he will be at liberty to leave the German Empire after his discharge.
I should be under special obligation to your excellency for an expression of your views as to whether the Government of the United States concurs in the action it is proposed to take in this case.
Accept, etc.,