File No. 14040/19–21.
Minister Eddy
to the Secretary of State.
American Legation,
Buenos
Aires, October 7,
1908.
No. 30.]
Sir: I have the honor to inform you that,
on the 6th instant, I received from Dr. de los Llanos, subsecretary
for foreign affairs, a note whereby he transmitted to me two
judgments by the federal judge of the criminal and correctional
court of Buenos Aires, in regard to the extradition of Vito Damiano.
I inclose herewith copies of the judgments aforesaid, as well as of
Dr. de los Llanos’s note.
To-day I called upon the minister for foreign affairs and had a long
conversation with him on the subject of the Damiano case. Dr. de la
Plaza’s opinion coincides with that of the federal judge, both of
whom base their contention upon the extradition convention between
the Argentine and the United States, of September 26, 1896, and upon
article 667 of the Argentine Penal Code. Article 4 of the
above-mentioned treaty contains the following paragraph:
For the purpose of extradition the two high contracting
parties will proceed, in accordance with this treaty, in
conformity with the laws regulating judicial proceedings at
the time being in force in the country to which the demand
for extradition shall be directed.
Article 5 of the Argentine Penal Code states that—
When the crime on which the demand for extradition is founded
has a lesser penalty in the Argentine Republic, the
extradition of the accused is only agreed to under the
condition that the courts of the claiming power will apply
to him the lesser penalty.
Dr. de la Plaza understands that the Federal Government of the United
States has not the right to enter into an agreement whereby the
criminal codes of the different States would be affected, and it
seems to him unlikely that the Department of State would authorize
me to make the promise required in this instance. But as the failure
of the present extradition proceedings against Damiano would create
a precedent whereby practically no criminal could be extradited from
the Argentine Republic to the United States, the minister for
foreign affairs has decided to refer the present case to the
attorney general for his opinion.
I have to-day cabled to you briefly the status of this matter, and as
soon as the opinion of the attorney general has been given I shall
at once inform you of the sense of it. In the meantime I have
advised the agent, who has now been in Buenos Aires for three
[Page 16]
months, waiting to take the
prisoner to the United States, to remain quietly in this city until
I shall have received instructions from the Department of State.
I have, etc.,
[Inclosure
1—Translation.]
The Minister for Foreign
Affairs to Minister Eddy.
Ministry for Foreign Affairs and
Worship,
Buenos
Aires, October 6,
1908.
Mr. Minister: I have the honor to
transmit to your excellency a legalized copy of two sentences
dictated by the federal judge of the criminal and correctional
court of the capital, one dated September 22, granting the
extradition of Vito Damiano al. Rocco Morello, requested by your
legation in its note of July 27 last, and the other dated the
24th of the same month of September, amplifying the first, and
stipulating that the extradition is granted only on condition
that the authorities of the country making the demand apply to
the person extradited in case of his condemnation the punishment
immediately inferior to the death penalty, if that punishment
should be imposed.
Hoping that your excellency will inform me of the day and hour at
which the delivery of the prisoner should take place, as well as
the name of the person to whom he is to be delivered to be taken
to his country, in order that the proper orders may be given, I
take pleasure in renewing, etc.
[Inclosure 2—Translation.]
Buenos Aires, September 22, 1908.
Having examined the case of extradition of Vito Damiano requested
by the United States of North America, and, considering:
That the documents accompanying the case, presented by the
country demanding the extradition, prove that the crime with
which the prisoner is charged is among those comprised in
article 2 of the extradition treaty with the United States of
North America, and that the requirements for said extradition
called for by article 4 of the same treaty have been complied
with.
Whereas the prisoner has renounced the judicial proceedings in
the present case, and in conformity with the advice of the
procurador fiscal in the preceding decree I grant the request
for extradition. Therefore, let the chief of police of the
capital be notified, in order that he may place. Vito Damiano or
Rocco Morello at the disposition of the minister for foreign
affairs, to whom also should be sent this document as testimony
of this decision.
[
Seal.] (Signed)
Horacio R.
Larreta.
A true copy.
Juan Bte. Arumburu,
Director of the Section of Political
Affairs.
[Inclosure 3—Translation.]
Buenos Aires, September 24, 1908.
Having examined and considering:
That the explanation requested by the defender of the prisoner is
just, because the sentence of page 56 neglected to settle the
point in regard to the punishment to be applied to the prisoner
by the legislation of the country requesting extradition.
That, as is stated in article 667 of our Code of Criminal
Procedure, when the crime for which extradition is demanded has
a lesser punishment in the Republic, the prisoner will not be
extradited except on condition that the courts of the country
making the demand shall impose this lesser penalty.
That, as the documents accompanying the present case make clear,
the crime Imputed to the prisoner would be punished by our
legislation by the penalty of imprisonment of from 10 to 25
years. (Art. 17, Chap. I, Par. I, of the Corrected Penal
Code.)
[Page 17]
For these reasons the court declares: That extradition is granted
on condition that the authorities of the country requesting
extradition apply to the prisoner, in case of condemnation, the
punishment immediately inferior to the death penalty, if this
latter shall be imposed, and the fulfilment of this condition is
intrusted to the good faith and guaranty of the Government of
the United States of America.
[
Seal.] (Signed)
Horacio R.
Larreta.
A true copy.
Juan Bte. Arumburu,
Director of the Section of Political
Affairs.
