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'Arrest for ICC proceedings - national procedures' in document 'Australia: ICC Act (2002)'

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More information about the keyword 'Arrest for ICC proceedings - national procedures'
More information about the document 'Australia: ICC Act (2002)'
The relevant provisions of implementing legislation: [1] [2] [3] [4]
The Relevant Provisions of the Rome Statute

RELEVANT SECTIONS OF THE IMPLEMENTING LEGISLATION

Part 3—Requests by the ICC for arrest and surrender of persons

Division 3—Arrest of persons

20 Arrest following request for arrest and surrender

(1) Subject to section 22, if:

(a) the Attorney General receives a request for arrest and surrender of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.

(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(4) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.

21 Arrest following request for provisional arrest

(1) Subject to section 22, if:

(a) the Attorney General receives a request for provisional arrest of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney General issues such a notice, a magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(3) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.

22 Certificate by Attorney General

The Attorney General must not issue a notice under section 20 or 21 after receipt of a request for the arrest and surrender, or for the provisional arrest, of a person for a crime unless the Attorney General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.

23 Remand

(1) If a person is arrested under a warrant issued under section 20 or 21, the person executing the warrant must, as soon as practicable after the arrest:

(a) give to the person under arrest a written notice that:
(i) specifies the crime within the jurisdiction of the ICC in respect of which the warrant was issued; and
(ii) describes the conduct that is alleged to constitute that crime; and
(b) bring the person under arrest before a magistrate in the State or Territory in which the arrest took place.

(2) The magistrate must satisfy himself or herself whether:

(a) the person is the person specified in the warrant; and
(b) the person was arrested in accordance with this Act; and
(c) section 131 has been complied with in respect of the arrest.

(3) If the magistrate is not satisfied as to any one or more of the matters mentioned in subsection (2), the magistrate must order the release of the person from custody. However, the making of the order does not prevent the person from being arrested under a further warrant issued under section 20 or 21.

(4) If the magistrate is satisfied as to all the matters mentioned in subsection (2), the magistrate must remand the person in custody or on bail for such period or periods as may be necessary to enable the Attorney General to issue a surrender warrant and, if a surrender warrant is issued, to enable the warrant to be executed.

(5) The magistrate must remand the person in custody unless there are special circumstances justifying remand on bail.

(6) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate must have regard to the following:

(a) the gravity of the alleged crimes within the jurisdiction of the ICC;
(b) whether there are urgent and exceptional circumstances that favour the grant of bail;
(c) whether necessary safeguards exist to ensure that Australia can fulfil its duty under the Statute to surrender the person.

(7) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate may not consider whether any warrant of arrest issued by the ICC was properly issued in accordance with the Statute.

24 Procedure following application for bail

(1) If an application for bail is made, the Attorney General must notify the ICC.

(2) The Attorney General must give to the magistrate who is considering the application the recommendations made by the ICC in relation to the application.

(3) Before giving a decision, the magistrate must consider the recommendations that the ICC has made, including any recommendations or measures to prevent the escape of the person.

(4) If the person is granted bail, the Attorney General must, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.

(5) This section applies with any necessary modifications to any application for bail made during the period until the person is surrendered or is released according to law.

25 Release from remand on the Attorney General’s direction

(1) The Attorney General must, by written notice in the statutory form, direct a magistrate to order the release from custody of a person remanded under this Division, or the discharge of the recognisances on which bail was granted to the person, as the case requires, if:

(a) where the person was remanded following the receipt of a request for provisional arrest—a request for surrender of the person has not been duly received within 60 days after the day on which the person was arrested and the person does not consent to surrender; or
(b) in any case—after considering the matters mentioned in subsection 23(6), the Attorney General considers for any other reason that the remand should cease.

(2) The making by a magistrate of an order under subsection (1) following a direction by the Attorney General does not prevent the person from being arrested and remanded pursuant to a further request for arrest and surrender of the person received after the making of the order.

26 Release from remand after certain periods

(1) A person must be brought before a magistrate if:

(a) the person was arrested under a warrant issued under subsection 21(2); and
(b) the person is, under this Division, on remand 60 days after the day on which the person was arrested; and
(c) a notice has not been given under subsection 20(1) in relation to the person.

(2) Unless the magistrate is satisfied that such a notice is likely to be given within a particular period that is reasonable in all the circumstances, the magistrate must:

(a) order the release of the person from custody; or
(b) order the discharge of the recognisances on which bail was granted to the person;
as the case requires.

(3) If a magistrate was satisfied under subsection (2) that such a notice was likely to be given in relation to the person within a particular period but the notice is not given within the period:

(a) the person must be brought before a magistrate; and
(b) the magistrate must:
(i) order the release of the person from custody; or
(ii) order the discharge of the recognisances on which bail was granted to the person;
as the case requires.

27 Application for search warrants

(1) If:

(a) a person is arrested under a warrant issued under section 20 or 21; and
(b) a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;
the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the premises to search for that material.

(2) If:

(a) a person is arrested under a warrant issued under section 20 or 21; and
(b) a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;
the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the person to search for the material.

(3) For the purposes of this section, the applicable period is:

(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.

Note: Part 6 deals with search warrants.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 3 Requests by the ICC for arrest and surrender of persons

Division 3—Arrest of persons

20 Arrest following request for arrest and surrender

(1) Subject to section 22, if:

the Attorney-General receives a request for arrest and surrender of a person; and
Division 2 has been complied with in respect of the request;

the Attorney-General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney-General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.

(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(4) After the warrant has been issued, the magistrate must without delay send to the Attorney-General a report stating that the magistrate has issued the warrant.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 6—Search, seizure and powers of arrest

Division 4—Arrest and related matters

129 Power to enter premises to arrest person

(1) Subject to subsection (2), if:
a police officer has, under this Act or pursuant to a warrant issued under this Act, power to arrest a person; and

the police officer believes on reasonable grounds that the person is on any premises;

the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.

(2) A police officer must not enter a dwelling house under subsection (1) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the police officer believes on reasonable grounds that:

it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or

it is necessary to do so in order to prevent the concealment, loss or destruction of evidential material.

(3) In subsection (2):

dwelling house includes a conveyance, and a room in a hotel, motel, boarding house, or club, in which people ordinarily retire for the night.

130 Use of force in making arrest

A person must not, in the course of arresting another person under this Act or pursuant to a warrant issued under this Act, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.

Without limiting the operation of subsection (1), a police officer must not, in the course of arresting a person under this Act or pursuant to a warrant issued under this Act:

do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); or

if the person is attempting to escape arrest by fleeing—do such a thing unless:

the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); and

the person has, if practicable, been called on to surrender and the police officer believes on reasonable grounds that the person cannot be apprehended in any other manner.

131 Persons to be informed of grounds of arrest

A person who arrests another person under this Act or pursuant to a warrant issued under this Act must inform the other person, at the time of the arrest, of the crime in respect of which, or, if the other person is arrested under section 182, the reason for which, the other person is being arrested.

It is sufficient if the other person is informed of the substance of the crime or reason, and it is not necessary that this be done in language of a precise or technical nature.

Subsection (1) does not apply to the arrest of the other person if:

the other person should, in the circumstances, know the substance of the crime in respect of which, or the reason for which, he or she is being arrested; or

the other person’s actions make it impracticable for the person making the arrest to inform the other person of the crime in respect of which, or the reason for which, he or she is being arrested.

132 Power to conduct a frisk search of an arrested person

A police officer who arrests a person under this Act or pursuant to a warrant issued under this Act, or is present at such an arrest, may, if the police officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:

conduct a frisk search of the person at or soon after the time of arrest; and

seize any seizable items found as a result of the search.

133 Power to conduct an ordinary search of an arrested person

A police officer who arrests a person under this Act or pursuant to a warrant issued under
this Act, or is present at such an arrest, may, if the police officer suspects on reasonable grounds that the person is carrying:

evidential material relating to the crime to which the person’s custody relates; or
a seizable item;

conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.

134 Power to conduct search of arrested person’s premises

A police officer who arrests a person at premises under this Act or pursuant to a warrant issued under this Act, or is present at such an arrest, may seize things in plain view at those premises that the police officer believes on reasonable grounds to be:

evidential material relating to the crime to which the person’s custody relates; or
seizable items.

135 Power to conduct an ordinary search or strip search

(1) If a person who has been arrested under this Act or pursuant to a warrant issued under this
Act is brought to a police station, a police officer may:

if an ordinary search of the person has not been conducted—conduct an ordinary search of the person; or

subject to this section, conduct a strip search of the person.

(2) A strip search may be conducted if:

(a) a police officer suspects on reasonable grounds that:

the person has in his or her possession evidential material relating to the crime to which the person’s custody relates; or

the person has in his or her possession a seizable item; or

a visual inspection of the person’s body will provide evidence of the person’s involvement in that crime; and

the police officer suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that thing or to discover that evidence; and

a police officer of the rank of superintendent or higher has approved the conduct of the search.

Subject to section 136, a strip search may also be conducted if the person consents in writing.

Subject to section 136, a strip search may be conducted in the presence of a medical practitioner, who may assist in the search.

The approval may be obtained by telephone, telex, fax or other electronic means.

A police officer who gives or refuses to give an approval for the purposes of paragraph (2)(c) must make a record of the decision and of the reasons for the decision.

Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (2).

Any item of a kind referred to in subparagraph (2)(a)(i) or (ii) that is found during a strip search may be seized.

136 Rules for conduct of strip search

(1) A strip search:

must be conducted in a private area; and

must be conducted by a police officer who is of the same sex as the person being searched; and

subject to subsections (3) and (4), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and

(d) must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and

(e) must not be conducted on a person who is under 10 years of age; and

(f) if the person being searched is at least 10 but under 18 years of age, or is incapable of managing his or her affairs:

may only be conducted if a court orders that it be conducted; and

must be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the person, in the presence of another person (other than a police officer) who is capable of representing the interests of the person and, as far as is practicable in the circumstances, is acceptable to the person; and

(g) must not involve a search of a person’s body cavities; and

(h) must not involve the removal of more garments than the police officer conducting the search believes on reasonable grounds to be necessary to determine whether the person has in his or her possession the item searched for or to establish the person’s involvement in the crime to which the person’s custody relates; and

(i) must not involve more visual inspection than the police officer believes on reasonable grounds to be necessary to establish the person’s involvement in the crime to which the person’s custody relates.

(2) In deciding whether to make an order referred to in paragraph (1)(f), the court must have regard to:

the serious nature of the crime to which the person’s custody relates; and

the age or any disability of the person; and

such other matters as the court thinks fit.

(3) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.

Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.

If any of a person’s garments are seized as a result of a strip search, the person must be provided with adequate clothing.

RELEVANT ROME STATUTE PROVISIONS

Article 59
Arrest proceedings in the custodial State
2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person's rights have been respected.