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PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Identifying or locating persons or things
81.
Assistance in locating or identifying persons or things—
(1)This section applies if the ICC requests assistance under any of articles 19(8), 56, 64, or 93(1)(a) of the Statute in locating, or identifying and locating, a person or a thing believed to be in New Zealand.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—
(a)the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b)the person to whom or thing to which the request relates is or may be in New Zealand.
(3)If the Attorney-General gives authority for the request to proceed,—
(a)the Attorney-General must forward the request to the appropriate New Zealand agency; and
(b)that agency must, without delay,—
(i)use its best endeavours to locate or, as the case may be, identify and locate the person to whom or thing to which the request relates; and
(ii)advise the Attorney-General of the outcome of those endeavours.
(4)This section does not give any person a power to enter property in order to locate a person or item.
Cf Statute, articles 19(8), 56, 64, 93(1)(a)
Taking evidence and producing documents
82.
Assistance in gathering evidence—
(1)This section applies if the ICC requests, under any of articles 19(8), 56, 64, or 93(1)(b) of the Statute, that—
(a)evidence be taken in New Zealand; or
(b)documents or other articles in New Zealand be produced.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—
(a)the request relates to an investigation being conducted by the Prosecutor or to a proceeding before the ICC; and
(b)there are reasonable grounds for believing that the evidence can be taken or, as the case may be, the documents or other articles can be produced in New Zealand.
Cf 1995 No 27 s 21; Statute, articles 19(8), 56, 64, 93(1)(b)
83.
Taking evidence—
(1)If the Attorney-General gives authority for a request relating to the taking of evidence to proceed, the statement of each witness must be taken in writing on the oath or affirmation of that witness by a District Court Judge.
(2)The Judge who takes evidence under subsection (1), must—
(a)certify that the evidence was taken by the Judge; and
(b)ensure that the evidence, as certified, is sent to the Attorney-General.
Cf 1995 No 27 s 22
84.
Producing documents or other articles—
(1)If the Attorney-General gives authority for a request relating to the production of documents or other articles to proceed, a District Court Judge may make an order requiring their production.
(2)If the documents or other articles are produced, the Judge must send them to the Attorney-General together with a written statement certifying that they were produced to the Judge.
(3)Despite subsection (2), in the case of documents that are produced, the Judge may send to the Attorney-General copies of the documents certified by the Judge to be true copies instead of the originals.
(4)Subsections (2) and (3) apply subject to any contrary order by the Judge.
Cf 1995 No 27 s 23
85.
Protection of witnesses—
(1)The applicable law with respect to compelling a person to appear before Judge under section 83 or section 84 and to give evidence or answer questions, or to produce documents or other articles, is the law specified in subsection (2); and that law applies with any necessary modifications.
(2)For the purposes of subsection (1), the applicable law is the law of New Zealand that applies to the giving of evidence or the answering of questions or the production of documents or other articles on the hearing of a charge against a person for an offence against the law of New Zealand.
(3)Despite subsection (1), for the purposes of section 83 and section 84, the person to whom the investigation being conducted by the Prosecutor, or the proceeding before the ICC, relates is competent but not compellable to give evidence.
(4)Despite subsection (1), a person who is required under section 83 or section 84 to give evidence, or to produce documents or other articles, is not required to give any evidence, or to produce any document or article, that the person could not be compelled to give or produce in the investigation being conducted by the Prosecutor or the proceeding before the ICC.
(5)A person who is required under section 83 or section 84 to give evidence or to produce documents or other articles—
(a)has the same privileges in relation to the answering of questions and the production of documents or articles as if the investigation were being conducted in New Zealand or the proceeding were pending in a New Zealand court, as the case may be; and
(b)must be given a copy of any statement required to be given to a witness under the Rules in the manner and form required by the Rules.
(6)Subsections (4) and (5) apply subject to section 31 and any contrary provision in the Statute or the Rules.
Cf 1995 No 27 s 26
86.
ICC may give evidence certificate—
(1)In this section, ``evidence certificate'' means a certificate or declaration that—
(a)is given or made by or on behalf of the ICC; and
(b)specifies or declares whether, under the Statute or the Rules, a specified person or class of persons could or could not be required to answer a specified question or to produce a specified document—
(i)generally; or
(ii)in specified proceedings; or
(iii)in specified circumstances.
(2)An evidence certificate authenticated under subsection (3) is admissible in proceedings for the purposes of the application of section 85(4) as prima facie evidence of the matters stated in the certificate.
(3)A certificate is authenticated for the purposes of subsection (2) if it purports to be—
(a)signed or certified by a Judge, the Registrar, the Deputy Registrar, or a member of the staff of the ICC; or
(b)authenticated in any other manner authorised by the Statute or the Rules.
Cf 1995 No 27 s 27
87.
Certain persons may appear—
(1)The following persons may appear and be legally represented at a hearing held under section 83 or section 84:
(a)the person to whom the proceeding before the ICC or the investigation conducted by the Prosecutor relates:
(b)any other person giving evidence or producing documents or other articles at the hearing:
(c)a representative of the Prosecutor or ICC.
(2)Subsection (1) applies subject to any contrary provision of the Statute or the Rules.
(3)A certificate by a Judge under section 83(2) or section 84(2) must state whether any of the persons specified in subsection (1) were present when the evidence was taken or the documents or other articles were produced.
Cf 1992 No 86 s 34
88.
Powers of Judge may be exercised by Registrar—
(1)Any Judge may authorise a Registrar of the District Court to exercise the powers of a Judge under section 83 or section 84 in respect of any particular case.
(2)An authorisation given under subsection (1) may be revoked at any time by any Judge.
(3)If a matter in respect of which a Registrar has jurisdiction under an authorisation given under subsection (1) appears to the Registrar to be one of special difficulty, the Registrar may refer the matter to a Judge, who may—
(a)dispose of the matter; or
(b)refer it back to the Registrar with such directions as the Judge thinks fit.
(4)Nothing in this section prevents the exercise by any Judge of any jurisdiction or powers conferred on any Registrar under this section.
Cf 1995 No 27 s 28
Questioning persons
89.
Assistance in questioning persons—
(1)This section applies if the ICC requests assistance under any of articles 19(8), 56, 64, or 93(1)(c) of the Statute in questioning a person who is being investigated or prosecuted.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—
(a)the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b)the person is or may be in New Zealand.
(3)If the Attorney-General gives authority to proceed,—
(a)the Attorney-General must forward the request to the appropriate New Zealand agency; and
(b)that agency must, without delay,—
(i)use its best endeavours to undertake the questioning that the ICC has requested; and
(ii)ensure that the answers to the questions put are recorded in writing and make any other report on the questioning as it considers to be appropriate in the circumstances; and
(iii)advise the Attorney-General of the outcome of those endeavours and, if relevant, deliver the record and any report of the questioning to the Attorney-General.
Cf Statute; articles 19(8), 56, 64, 93(1)(c)
90.
Procedure where questioning by New Zealand agency—
(1)This section applies if there are grounds to believe that a person who is to be questioned by a New Zealand agency following a request under article 91(1)(c) of the Statute has committed a crime within the jurisdiction of the ICC.
(2)If this section applies, the person to be questioned must be informed, before being questioned, that there are grounds to believe that the person has committed a crime within the jurisdiction of the ICC and that the person has the right—
(a)to remain silent, without such silence being a consideration in the determination of guilt or innocence; and
(b)to have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to the person, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(c)to be questioned in the presence of a lawyer unless the person voluntarily waives the right to counsel.
(3)If there is any inconsistency between subsection (2) and any other enactment, subsection (2) prevails.
(4)If the person seeks to have legal assistance assigned under subsection (2)(b), that assistance may be provided under the Legal Services Act 1991.
(5)This section does not give any person a power to require another person to answer questions.
Cf Statute, article 55(2)
Assistance in arranging service
91.
Assistance in arranging service of documents—
(1)This section applies if the ICC requests assistance under any of articles 19(8), 56, 58(7), 64, or 93(1)(d) of the Statute in arranging for the service of a document in New Zealand.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—
(a)the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b)the person or body to be served is or may be in New Zealand.
(3)If the Attorney-General gives authority for the request to proceed, the Attorney-General must forward the request for service to the appropriate New Zealand agency, and that agency must, without delay,—
(a)use its best endeavours to have the process served—
(i)in accordance with any procedure specified in the request; or
(ii)if that procedure would be unlawful or inappropriate in New Zealand, or if no procedure is specified, in accordance with the law of New Zealand; and
(b)transmit to the Attorney-General—
(i)a certificate as to service, if the document is served; or
(ii)a statement of the reasons that prevented service, if the document is not served.
(4)In this section, ``document'' includes—
(a)a summons requiring a person to appear as a witness; and
(b)a summons to an accused that has been issued under article 58(7) of the Statute.
Cf 1995 No 27 s 35; Statute, articles 19(8), 56, 58(7), 59(7), 64, 93(1)(d)
Facilitating appearance of witnesses
92.
Request for voluntary appearance of witness—
(1)This section applies if the ICC requests assistance under any of articles 19(8), 56, 64, or 93(1)(e) of the Statute in facilitating the voluntary appearance of a witness before the ICC.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—
(a)the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b)the witness's attendance is sought so that the witness can give evidence or information relating to the investigation or proceeding; and
(c)the witness is or may be in New Zealand.
(3)In this section and sections 93 and 94, ``witness'' includes a person who may give expert evidence; but does not include either—
(a)a person who has been accused of an international crime in the proceedings to which the request relates; or
(b)a prisoner who is detained in relation to an offence against New Zealand law.
Cf 1995 No 27 s 30(1); Statute, articles 19(8), 56, 64, 93(1)(e)
93.
Consent required and assurances may be sought—
(1)If the Attorney-General gives authority for the request to facilitate the voluntary appearance of a witness to proceed, the Attorney-General must forward the request to the appropriate New Zealand agency.
(2)The New Zealand agency to which a request is forwarded under subsection (1) must make such inquiries as may be necessary to ascertain if the prospective witness consents to giving evidence or assisting the ICC.
(3)The Attorney-General may, at any time, ask the ICC to give 1 or more of the following assurances:
(a)that the witness will not be prosecuted, detained, or subjected to any restriction of personal freedom by the ICC in respect of all or any specified acts or omissions that occurred before the person's departure from New Zealand:
(b)that the witness will be returned to New Zealand as soon as practicable in accordance with arrangements agreed to by the Attorney-General:
(c)an assurance relating to such other matters as the Attorney-General thinks appropriate.
Cf Statute, article 93(2)
94.
Attorney-General may facilitate appearance—
(1)The Attorney-General may assist in the making of arrangements to facilitate a witness's attendance before the ICC if the Attorney-General is satisfied that—
(a)the prospective witness has consented to giving the evidence or assistance requested; and
(b)the ICC has given adequate assurances where appropriate.
(2)The Attorney-General may—
(a)approve and arrange the travel of the witness to the ICC; and
(b)obtain such approvals, authorities, and permissions as are required for that purpose, including, in the case of a person who although not liable to be detained in a prison is subject to a sentence,—
(i)the variation, discharge, or suspension of the conditions of the person's release from prison; or
(ii)the variation, cancellation, or suspension of the person's sentence, or of the conditions of the person's sentence; and
(c)take such other action for the purposes of subsection (1) as the Attorney-General thinks appropriate.
Cf 1995 No 27 ss 30(2), 31(3)
Temporary transfer of prisoners
95.
Request for temporary transfer of prisoner—
(1)This section applies if the ICC requests assistance under article 93(1)(f) of the Statute in facilitating the temporary transfer to the ICC of a New Zealand prisoner.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—
(a)the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b)the prisoner's attendance is sought for the purposes of identification or for obtaining evidence or other assistance.
Cf Statute, articles 93(1)(f) and (7)
96.
Consent required and assurances may be sought—
(1)If the Attorney-General gives authority for the request to facilitate the temporary transfer of a New Zealand prisoner to proceed, the Attorney-General must forward the request to the appropriate New Zealand agency.
(2)The New Zealand agency to which a request is forwarded under subsection (1) must make such inquiries as may be necessary to ascertain if the prisoner will consent to the transfer.
(3)The Attorney-General may ask the ICC to give 1 or more of the following assurances:
(a)that the prisoner will not be released from custody without the prior approval of the Attorney-General:
(b)that the prisoner will be returned to New Zealand without delay in accordance with arrangements agreed to by the Attorney-General:
(c)an assurance relating to such other matters as the Attorney-General thinks appropriate.
97.
Attorney-General may arrange for transfer—
(1)The Attorney-General may authorise the temporary transfer of a New Zealand prisoner to the ICC if the Attorney-General is satisfied that—
(a)the prisoner has consented to giving the evidence or assistance requested; and
(b)the ICC has given adequate assurances where appropriate.
(2)If the Attorney-General authorises the temporary transfer of the prisoner to the ICC, the Attorney-General may—
(a)direct that the prisoner be released from the prison in which that person is detained, for the purpose of the transfer to the ICC; and
(b)make arrangements for the prisoner to travel to the ICC in the custody of—
(i)a member of the police; or
(ii)a prison officer; or
(iii)a person authorised for the purpose by the ICC.
(3)A direction given by the Attorney-General under subsection (2) in respect of a prisoner is sufficient authority for the release of the prisoner from the prison in which the prisoner is detained, for the purposes of the direction.
(4)Every person released under a direction given under subsection (2) is to be treated, for the purposes of section 120 of the Crimes Act 1961 (which relates to escaping from lawful custody) and for that purpose only, as continuing to be in the legal custody of the Superintendent of the penal institution from which he or she is so released, while in New Zealand during the period of that release.
(5)If there is any inconsistency between subsection (4) and the Penal Institutions Act 1954, subsection (4) prevails.
Cf 1995 No 27 s 31
98.
Effect of transfer on prisoner's sentence—
(1)If a prisoner who is charged with or convicted of an offence against the law of New Zealand is transferred to the ICC under section 97, the provisions of section 99 of this Act and [section 90 of the Parole Act 2002] apply to any period that the person spends in custody outside New Zealand in connection with the request before sentence is imposed for the New Zealand offence.
(2)If a prisoner who is serving a sentence for a New Zealand offence is transferred to the ICC under section 97,—
(a)the prisoner is to be treated, while in custody outside New Zealand in connection with the request, as being in custody for the purposes of the New Zealand sentence, which continues to run; and
(b)the Attorney-General—
(i)may at any time notify the ICC that the prisoner is no longer required to be kept in custody; and
(ii)must notify the ICC if the prisoner is no longer liable to be detained in a New Zealand prison.
Cf 1995 No 27 s 32
99.
Request for information about time spent in custody overseas—
(1)If a prisoner who is charged with or convicted of an offence against the law of New Zealand (the ``New Zealand offence'') is transferred to the ICC under section 97 before sentence is imposed for the New Zealand offence, the Attorney-General may—
(a)advise the ICC of the date on which the prisoner was sentenced for the New Zealand offence; and
(b)request the ICC to provide a certificate recording the total period during which the prisoner was detained outside New Zealand in connection with the request until sentence was imposed for the New Zealand offence.
(2)A certificate obtained under subsection (1) is presumed to be accurate in the absence of any evidence to the contrary.
(3)The Attorney-General may issue a certificate setting out the date and period specified in subsection (1) if—
(a)the ICC does not provide a certificate within a reasonable time after the Attorney-General makes a request under subsection (1); and
(b)the Attorney-General is satisfied from the information that the Attorney-General has that an accurate calculation can be made of the period referred to in paragraph (b) of subsection (1).
(4)For the purposes of [section 91(4) of the Parole Act 2002], a certificate given by the Attorney-General under subsection (3) has the same effect as a certificate under subsection (1).
(5)Subsection (6) applies if, after the Attorney-General has given a certificate under subsection (3),—
(a)a certificate requested under subsection (1) is obtained from the ICC; and
(b)the time period specified in that certificate is different from that specified in the Attorney-General's certificate.
[(6)If this subsection applies, the new certificate is a substitute certificate for the purposes of section 91(4) of the Parole Act 2002.]
Examination of places or sites
100.
Assistance in examining places or sites—
(1)This section applies if the ICC requests assistance under any of articles 19(8), 56, 64, or 93(1)(g) of the Statute in examining places or sites in New Zealand.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC.
(3)If the Attorney-General gives authority for the request to proceed,—
(a)the Attorney-General must forward the request to the appropriate New Zealand agency; and
(b)that agency must, without delay,—
(i)use its best endeavours to undertake the examination of the place or site in the manner that the ICC has requested; and
(ii)make such report on the examination as it considers to be appropriate in the circumstances; and
(iii)deliver the report of the examination to the Attorney-General.
(4)This section does not give any person a power to enter a place or site.
Cf Statute, articles 19(8), 56, 64, 93(1)(g)
Search and seizure
101.
Request for search and seizure—
(1)This section applies if the ICC makes a request under any of articles 19(8), 56, 64, or 93(1)(h) of the Statute for search and seizure.
(2)The Attorney-General may give authority for the request to proceed if he or she is satisfied that—
(a)the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b)any thing relevant to the investigation or proceedings is or may be located in New Zealand.
(3)If the Attorney-General gives authority for the request to proceed, he or she may authorise a member of the police, in writing, to apply to a District Court Judge for a search warrant under section 102.
Cf 1992 No 86 s 43; Statute, articles 19(8), 56, 64, 93(1)(h)
102.
Issue of search warrant—
(1)This section applies if a District Court Judge, on an application in writing made on oath or affirmation by a member of the police, is satisfied that there are reasonable grounds for believing that there is in or on any place or thing—
(a)any thing on or in respect of which an international crime has been, or is suspected of having been, committed; or
(b)any thing that may be evidence as to the commission of any such crime.
(2)If this section applies, the District Court Judge may issue a warrant in respect of any thing referred to in subsection (1).
(3)A Judge must not issue a warrant under this section unless the application contains, or the applicant otherwise supplies to the Judge, such information as the Judge requires concerning the grounds on which the warrant is sought.
(4)A Judge may issue a warrant under this section subject to such conditions as the Judge thinks fit.
Cf 1995 No 27 s 48
103.
Form and content of search warrant—
A warrant issued under section 102 must—
(a)be in the prescribed form; and
(b)be directed to a member of the police by name, or to any class of members of the police specified in the warrant, or generally to every member of the police; and
(c)specify any conditions that the District Court Judge has imposed under section 102(4).
Cf 1999 No 55 s 84
104.
Powers conferred by warrant—
(1)Subject to any conditions specified in the warrant under section 103, a warrant issued under section 102 authorises the member of the police executing the warrant—
(a)to enter and search the place or thing specified in the warrant at any time by day or night during the currency of the warrant; and
(b)to use such assistants as may be reasonable in the circumstances for the purpose of the entry and search; and
(c)to use such force as is reasonable in the circumstances for the purposes of effecting entry, and for breaking open any thing in or on the place searched; and
(d)to search for and seize any thing referred to in section 102(1).
(2)A person called on to assist any member of the police executing a warrant issued under section 102 has the powers described in paragraphs (c) and (d) of subsection (1).
Cf 1999 No 55 s 85
105.
Power to stop vehicles—
If it is necessary for a member of the police to stop a vehicle for the purpose of exercising a search power conferred by a warrant issued under section 102 of this Act, sections 314B to 314D of the Crimes Act 1961 apply with any necessary modifications as if references in those sections to a statutory search power were references to section 104(1) of this Act.
Cf 1999 No 55 s 86
106.
Person executing warrant to produce evidence of authority—
Every member of the police executing any warrant issued under section 102—
(a)must have that warrant with him or her; and
(b)must produce it on initial entry and, if requested, at any subsequent time; and
(c)must, if requested at the time of the execution of the warrant or at any subsequent time, provide a copy of the warrant within 7 days after the request is made.
Cf 1999 No 55 s 87
107.
Notice of execution of warrant—
(1)Every member of the police who executes a warrant issued under section 102 must, not later than 7 days after the seizure of any thing under that warrant, give to the owner or occupier of the place or thing searched, and to every other person whom the member of the police has reason to believe may have an interest in the thing seized, a written notice specifying—
(a)the date and time of the execution of the warrant; and
(b)the identity of the person who executed the warrant; and
(c)the thing seized under the warrant.
(2)If the warrant is executed, a report on the execution of the warrant, together with a copy of any notice given under subsection (1) must be sent to the Attorney-General, without delay.
(3)If the warrant is not able to be executed, a report explaining the reasons for this must be sent to the Attorney-General, without delay.
Cf 1999 No 55 s 88
108.
Disposal of things seized—
(1)If a member of the police seizes a thing under a warrant issued under section 102, it must be delivered into the custody and control of—
(a)the Commissioner of Police; or
(b)a commissioned officer of police designated by the Commissioner to receive things seized under this Act.
(2)The Commissioner of Police or designated officer must—
(a)inform the Attorney-General, without delay, that the thing has been so delivered; and
(b)retain the thing for a period not exceeding 3 months from the day on which the thing was seized, pending the Attorney-General's direction under subsection (3) about how to deal with the thing; and
(c)comply with any direction that the Attorney-General gives.
(3)The Attorney-General may, by written notice, give the Commissioner of Police or designated officer a direction—
(a)requiring the Commissioner of Police or designated officer to send the thing to the ICC; or
(b)requiring the Commissioner of Police or designated officer to deal with the thing in some other way.
(4)The Attorney-General must direct the Commissioner of Police or designated officer to return the thing seized to the person from whose possession it was seized as soon as practicable, if—
(a)the ICC advises that the thing is not required for the Prosecutor's investigation or its proceeding; or
(b)no other direction is given by the Attorney-General before the expiry of 3 months from the day on which the thing was seized.
(5)Despite subsection (4), the Attorney-General may refuse to return the thing to the person from whom it was seized if—
(a)the thing is the subject of a dispute as to who is entitled to it; or
(b)the thing is required for the investigation of an offence within the jurisdiction of New Zealand; or
(c)possession of the thing by the person would be unlawful in New Zealand.
Cf 1995 No 27 s 55; 1999 No 55 s 89(3)
Provision of records and documents
109.
Facilitating provision of records and documents—
(1)This section applies if the ICC makes a request under article 93(1)(i) of the Statute for the provision of records and documents, including official records and documents.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—
(a)the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b)the document or record sought is or may be in New Zealand.
(3)If the Attorney-General gives authority for the request to proceed,—
(a)the Attorney-General must forward the request to the appropriate New Zealand agency; and
(b)that agency must, without delay,—
(i)use its best endeavours to locate and make available the document or record sought; and
(ii)make such report on its endeavours as it considers to be appropriate in the circumstances; and
(iii)deliver the document or record, if located, to the Attorney-General.
(4)This section does not give any person power to require the production of a document or record.
Cf 1992 No 86 s 32(2); Statute, article 93(1)(i)
Protecting victims and witnesses and preserving evidence
110.
Protecting victims and witnesses and preserving evidence—
(1)This section applies if the ICC requests—
(a)assistance under article 93(1)(j) of the Statute in protecting victims and witnesses or preserving evidence:
(b)assistance under article 19(8), or paragraphs (2) or (3) of article 56, in preserving evidence.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—
(a)the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b)the assistance sought is not prohibited by New Zealand law.
(3)If the Attorney-General gives authority for the request to proceed,—
(a)the Attorney-General must—
(i)take such steps as the Attorney-General thinks appropriate in the particular case; and
(ii)forward the request to the appropriate New Zealand agency; and
(b)that agency must, without delay,—
(i)use its best endeavours to give effect to the request; and
(ii)make such report on its endeavours as it considers to be appropriate in the circumstances; and
(iii)deliver the report to the Attorney-General.
Cf Statute, articles 19(8), 56(2) and (3), 68, 93(1)(j)
Identifying, freezing, or seizing property associated with international crimes
111.
Request relating to property associated with crime—
(1)This section applies if the ICC requests assistance under article 93(1)(k) of the Statute in identifying, tracing and freezing, or seizing tainted property for the purpose of eventual forfeiture.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—
(a)the request relates to an international crime that is being investigated by the Prosecutor, or which is the subject of proceedings before the ICC; and
(b)tainted property is or may be located in New Zealand.
Cf Statute, articles 57(3)(e), 93(1)(k)
112.
Attorney-General may authorise measures—
(1)If the Attorney-General gives authority for the request for assistance in identifying, tracing and freezing, or seizing tainted property to proceed, the Attorney-General may authorise the appropriate New Zealand authority to apply for 1 or more of the following orders or warrants:
(a)a search warrant in respect of tainted property under section 38A of the Proceeds of Crime Act 1991:
(b)a restraining order under section 66A of the Proceeds of Crime Act 1991:
(c)a production order under section 76A of the Proceeds of Crime Act 1991:
(d)a monitoring order under section 81A of the Proceeds of Crime Act 1991.
(2)If the ICC's request relates to the freezing of tainted property, and the ICC has made an order in the nature of a restraining order, the Attorney-General may authorise the appropriate authority to register that order, and section 130 applies accordingly, with the necessary modifications.
Cf 1992 No 86 ss 59-62
Other types of assistance
113.
Request for other types of assistance—
(1)This section applies if the ICC requests any other type of assistance under article 93(1)(l) of the Statute for the purposes of facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—
(a)the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b)the assistance sought is not prohibited by New Zealand law.
(3)If the Attorney-General gives authority for the request to proceed,—
(a)the Attorney-General must—
(i)take such steps as the Attorney-General thinks appropriate in the particular case; and
(ii)forward the request to the appropriate New Zealand agency; and
(b)that agency must, without delay,—
(i)use its best endeavours to give effect to the request; and
(ii)make such report on its endeavours as it considers to be appropriate in the circumstances; and
(iii)deliver the report to the Attorney-General.
(4)If the Attorney-General considers that the assistance sought cannot lawfully be provided, the Attorney-General must, before refusing the request, and in accordance with article 93(5) of the Statute,—
(a)consult with the ICC:
(b)consider whether the assistance can be provided subject to conditions or whether it can be provided at a later date or in an alternative manner.
Cf 1995 No 27 s 56; Statute, article 93(1)(l), (2), and (5)
Restrictions on provision of assistance
114.
Refusal of assistance—
(1)The Attorney-General must refuse a request by the ICC for assistance to which this Part applies if—
(a)the ICC does not accept the conditions or other modifications suggested in order to implement the request as contemplated by article 93(5) of the Statute and section 113(4); or
(b)the ICC determines under article 18 or article 19 of the Statute that the case to which the request relates is inadmissible and section 118(4) applies; or
(c)section 120(4) applies.
(2)The Attorney-General may refuse a request by the ICC to which this Part applies if—
(a)Part 8 (which relates to the protection of national security or third party information) applies; or
(b)there are competing requests from the ICC and a State that is not a party to the Statute relating to the same conduct and section 63(4) (as applied by section 119) applies; or
(c)there are competing requests from the ICC and a State that is not a party to the Statute relating to different conduct and section 64(3) (as applied by section 119) applies.
(3)To avoid doubt,—
(a)the only grounds on which assistance to the ICC may be refused are those specified in this section and, if applicable, section 23(2) (which relates to offences involving the administration of justice); and
(b)the restrictions on assistance specified in the Mutual Assistance in Criminal Matters Act 1992 do not apply in relation to a request by the ICC for assistance to which this Part applies.
115.
Postponement of execution of assistance—
(1)The Attorney-General may postpone the execution of a request for assistance under this Part if, and only if,—
(a)the execution of the request would interfere with an ongoing investigation or prosecution for a different offence and section 117 applies; or
(b)a ruling on admissibility is pending before the ICC and section 118 applies; or
(c)there are competing requests from the ICC and from another State to which New Zealand is under an international obligation and section 119(2)(a) applies; or
(d)the request is for assistance under article 93(1)(l) of the Statute and is one to which section 113(4) applies; or
(e)a request of the kind referred to in section 120(2)(c) is made to the ICC.
(2)Even if a case is one to which subsection (1) applies, the Attorney-General may decide not to postpone the execution of the request, and in that event the request must be dealt with in accordance with this Part.
(3)If the Attorney-General postpones the execution of a request for assistance under this Part, the postponement may be for a reasonable time and may, if the Attorney-General considers it desirable, be extended from time to time.
Cf Statute, articles 93(9), 94, 95
116.
Procedure if execution of assistance precluded under New Zealand law—
If the execution of a particular measure of assistance specified in a request to which this Part applies is prohibited in New Zealand, despite any other provision in this Part, the Attorney-General must—
(a)consider whether the assistance can be provided in another manner or subject to conditions; and
(b)promptly consult with the ICC in order to resolve the matter.
Cf Statute, article 93(3)
117.
Postponement where ongoing investigation or prosecution—
(1)If the immediate execution of a request by the ICC for assistance to which this Part applies would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the Attorney-General may postpone the execution of the request for a period of time agreed between the Attorney-General and the ICC.
(2)Despite section 115(3), the period of postponement may be no longer than is reasonably necessary to complete the investigation or prosecution.
(3)Before making a decision to postpone the execution of a request, the Attorney-General must consider whether the assistance could be provided immediately subject to certain conditions.
(4)If the Attorney-General decides to postpone the execution of a request and the ICC seeks assistance in the preservation of evidence under article 93(1)(j) of the Statute, the Attorney-General must deal with that request in accordance with this Part.
Cf Statute, article 94
118.
Postponement where admissibility challenge—
(1)This section applies if the ICC is considering an admissibility challenge under article 18 or article 19 of the Statute in respect of a case that a request to which this Part applies relates.
(2)If the ICC has not made an order under article 18 or article 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may postpone the execution of the request until the ICC's determination on admissibility is issued.
(3)If the ICC has made an order under article 18 or article 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may not postpone the execution of a request under this section but must deal with it under this Part.
(4)If the ICC determines that the case to which the request relates is inadmissible, the request must be refused.
(5)If the ICC determines that the case to which the request relates is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
Cf Statute, article 95
119.
Competing requests—
(1)If the Attorney-General receives competing requests for assistance from the ICC and from another State to which New Zealand is under an obligation to respond, the Attorney-General must endeavour, after consultation with the ICC and the other State, to satisfy both requests.
(2)For the purposes of subsection (1), the Attorney-General may do either or both of the following:
(a)postpone the execution of either of the competing requests:
(b)attach conditions to the provision of assistance under either or both of the requests.
(3)If it is not possible to resolve the issue by consultation, the method of dealing with the competing requests must be resolved in accordance with article 90 of the Statute, and sections 61 to 65 apply with any necessary modifications.
Cf Statute, articles 90, 93(9)(a)
120.
Requests involving conflict with other international obligations—
(1)If a request by the ICC for assistance to which this Part applies concerns persons who, or information or property that, are subject to the control of another State or an international organisation under an international agreement, the Attorney-General must inform the ICC to enable it to direct its request to the other State or international organisation.
(2)Subsections (3) to (5) apply if—
(a)the ICC makes a request for assistance; and
(b)the ICC has not previously made a final determination on whether or not article 98(1) of the Statute applies to that request; and
(c)a request is made to the ICC to determine whether or not article 98(1) applies to the request for surrender.
(3)If this subsection applies, the Minister may postpone the request for assistance until the ICC advises whether or not it wishes to proceed with the request for assistance.
(4)If the ICC advises that it does not intend to proceed with the request, the request for assistance must be refused.
(5)If the ICC advises that it intends to proceed with the request for assistance, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
Cf Statute, article 98(1)
Miscellaneous
121.
Effect of authority to proceed—
At any time before a formal response is sent to the ICC, the Attorney-General may decide that a request by the ICC for assistance to which this Part applies will be refused or the execution of the request postponed, on a ground specified in section 114 or section 115, even if the Attorney-General has previously given authority for the request to proceed.
122.
Request may relate to assistance sought by defence—
To avoid doubt, if the ICC makes a request under Part 9 of the Statute to assist a defendant in the preparation of his or her defence, that request must be dealt with in the same manner as a request for assistance of a similar type, to assist the Prosecutor.
Cf Statute, article 57(3)(b)
123.
Execution of request by Prosecutor—
(1)The Prosecutor may execute a request that does not involve any compulsory measures on New Zealand territory in the circumstances specified in article 99(4) of the Statute.
(2)If the Attorney-General identifies difficulties with the execution of a request to which article 99(4)(b) of the Statute relates, the Attorney-General must, without delay, consult with the ICC in order to resolve the matter.
(3)The provisions of this Act and the Statute, allowing a person heard or examined by the ICC under article 72 of the Statute to invoke restrictions designed to prevent disclosure of confidential information connected with national security, apply to the execution of requests for assistance under article 99 of the Statute.
Cf Statute, article 99(4) and (5)
PART 7 - PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC
Enforcement of sentences in New Zealand
145.
Transfer of prisoner to ICC for other purposes—
(1)This section applies if the ICC—
(a)directs that an ICC prisoner appear before it to give evidence in another case; or
(b)requests that an ICC prisoner appear before it for any other reason.
(2)The Minister,—
(a)if subsection (1)(a) applies, must direct that the ICC prisoner be transferred to the ICC:
(b)if subsection (1)(b) applies, may direct that the ICC prisoner be transferred to the ICC if the Minister is satisfied that the interests of justice require the prisoner's attendance at the ICC.
(3)If the Minister gives a direction under subsection (2), section 144(3) and (4) apply, with any necessary modifications.
(4)This section does not apply if the request by the ICC is a request to which section 95(1) applies.
Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for
assistance under this paragraph from a State which is not a Party to this Statute.
Article 96
Contents of request for other forms of assistance under article 93
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.