Extradition (Commonwealth and Foreign Territories)

CHAPTER 12:04

EXTRADITION (COMMONWEALTH AND FOREIGN TERRITORIES) ACT

1. Short title and application.
(1) This Act may be cited as the Extradition (Commonwealth and Foreign Territories) Act.
(2) This Act applies to extraditable offences committed before as well as after the commencement of this Act.


PART I
INTERPRETATION

2. Interpretation.
In this Act—
“application for habeas corpus” means an application for a writ of habeas corpus ad subjiciendum;
“authority to proceed” has the meaning assigned to it by section 9(1);
“conviction” does not include or refer to a conviction which under the law of some other territory is a conviction for contumacy, but the term “person accused” includes a person convicted of contumacy;
“dealt with” means tried or returned or surrendered to any territory or detained with a view to trial or with a view to such return or surrender;
“declared Commonwealth territory” has the meaning assigned to it by section 3(1);
“declared foreign territory” has the meaning assigned to it by section 4(1);
“extraditable offence” has the meaning assigned to it by section 6;
“foreign territory” means any State outside Trinidad and Tobago other than a Commonwealth territory, and includes every constituent part, colony or dependency of such State;
“fugitive offender” or “offender” means any person being or suspected of being in Trinidad and Tobago, who is accused or who is alleged to be unlawfully at large after conviction of an extraditable offence committed within the jurisdiction of, or part of, a declared Commonwealth territory or a declared foreign territory, as the case may be;
“Governor”, in relation to any territory, means the person or
persons administering the government of that territory;
“imprisonment” includes detention of any description;
“provisional warrant” has the meaning assigned to it by section 10(1);
“race” includes tribe;
“treaty” means any convention, treaty, agreement or arrangement for the time being in force between Trinidad and Tobago and any foreign territory for the return or surrender of offenders;
“warrant”, in the case of any foreign territory, includes any judicial document authorising the arrest of a person accused or convicted of crime.


PART II
TERRITORIES TO WHICH ACT APPLIES

COMMONWEALTH TERRITORIES
3. Declared Commonwealth territories.
(1) The Attorney General may, by Order subject to negative resolution of Parliament, declare a Commonwealth territory other than Trinidad and Tobago to be a Commonwealth territory (hereafter referred to as a declared Commonwealth territory) in relation to which this Act applies, and where any such Order so declares, this Act applies in relation to that territory; and any such Order may provide that this Act applies in relation to that territory subject to such exceptions, adaptations, modifications or other provisions as may be specified in the Order and, where any such Order so provides, this Act applies in relation to that territory subject to such exceptions, adaptations, modifications or other provisions.

(2) For the purposes of any Order made under subsection (1), any territory for the external relations of which a Commonwealth country is responsible may be treated as part of that country or, if the Government of that country so requests, as a separate country.

FOREIGN TERRITORIES
4. Declared foreign territories.
(1) Where a treaty has been concluded, whether before or after the commencement of this Act, between Trinidad and Tobago and any foreign territory in relation to the return of fugitive offenders, the Attorney General may, by Order subject to negative resolution of Parliament, declare that territory to be a foreign territory (hereafter referred to as a declared foreign territory) in relation to which this Act applies, and where any such Order so declares, this Act applies in relation to that territory; and any such Order may provide that this Act applies in relation to that territory subject to such exceptions, adaptations, modifications or other provisions as may be specified in the Order and, where any such Order so provides, this Act applies in relation to that territory subject to such exceptions, adaptations, modifications or other provisions.

(2) An Order shall not be made under subsection (1) unless the treaty—
(a) is in conformity with the provisions of this Act, and in particular with the restrictions on the return of fugitive offenders contained in this Act; and
(b) provides for the determination of the treaty by either party to it after the expiration of a notice not exceeding one year.
(3) Any Order made under subsection (1) shall recite or embody the terms of the treaty and shall not remain in force for any longer period than the treaty; and the Order shall be conclusive evidence that the treaty complies with the requisitions of this Act and that this Act applies in relation to the foreign territory mentioned in the Order, and the validity of the Order shall not be questioned in any legal proceedings whatever.


PART III
EXTRADITION FROM TRINIDAD AND TOBAGO

5. Persons liable to be returned.
(1) A person found in Trinidad and Tobago—
(a) who is accused of an extraditable offence; or
(b) who is alleged to be unlawfully at large after conviction of an extraditable offence,
in a declared Commonwealth territory, or in a declared foreign territory, may, subject to and in accordance with the provisions of this Act, be arrested and returned to the declared Commonwealth territory or the declared foreign territory, as the case may be.

(2) For greater certainty, a person may be returned under this Act whether or not the conduct on which the declared Commonwealth or foreign territory bases its request occurred in territory over which it has jurisdiction.


6. Extraditable offences.
(1) For the purpose of this Act, an offence in respect of which a person is accused or has been convicted in a declared Commonwealth territory, or a declared foreign territory, is an extraditable offence if—
(a) it is an offence against the law of that territory which is punishable under the law with death or imprisonment for a term of not less than twelve months;
(b) the conduct of the person would constitute an offence against the law of Trinidad and Tobago if it took place in Trinidad and Tobago, or in the case of an extra-territorial offence, if it took place in corresponding circumstances outside Trinidad and Tobago, and would be punishable under the law of Trinidad and Tobago with death or imprisonment for a term of not less than twelve months; and
(c) in the case of a declared foreign territory, extradition for that offence is provided for by a treaty between Trinidad and Tobago and that territory.

(2) For the purpose of this section, in determining whether an offence against the law of a declared Commonwealth territory, or a declared foreign territory, is an offence against the law of Trinidad and Tobago, any special intent, state of mind or special circumstances of aggravation which may be necessary to constitute that offence under the law of Trinidad and Tobago shall be disregarded.

(3) For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterised by the declared Commonwealth territory, or the declared foreign territory, in the same way as it is in Trinidad and Tobago.

(4) An offence constituted by conduct, whether in Trinidad and Tobago or not, that is of a kind over which Contracting States to an international Convention to which Trinidad and Tobago is a party are required by that Convention to establish jurisdiction, and which jurisdiction Trinidad and Tobago has so established, is an extraditable offence for the purpose of this Act.

7. Further proceedings.
For greater certainty, the discharge of a person under this Act does not preclude further proceedings, whether or not they are based on the same conduct, with a view to the return of the person under this Act unless the High Court is of the opinion that those further proceedings would be an abuse of process.

8. General restrictions on return.
(1) A person shall not be returned under this Act, other than under section 11, to a declared Commonwealth territory or a declared foreign territory, or committed to or kept in custody for the purposes of the return, if it appears to the Attorney General, to the Magistrate on proceedings under section 12, to the High Court on an application for habeas corpus or under section 14 for review of an order, or to the Court of Appeal on the hearing of an appeal under section 15—
(a) that the offence in respect of which that person is accused or was convicted is an offence of a political character;
(b) that the request for his return (though purporting to be made on account of an extraditable offence) is in fact made for the purpose of prosecuting or, punishing him on account of his race, religion, gender, sexual preference, nationality or political opinions; or
(c) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, gender, sexual preference, nationality or political opinions.

(2) A person accused of an offence shall not be returned under this Act, other than under section 11, to a declared Commonwealth or foreign territory, or committed to or kept in custody for the purposes of the return, if it appears as aforesaid that if charged with that offence in Trinidad and Tobago he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction.

(3) A person shall not be returned under this Act to a declared Commonwealth or foreign territory, or committed to or kept in custody for the purposes of the return, unless provision is made by the law of that territory, or by an arrangement made with that territory, that he will not, until he has left or has been free to leave that territory, be dealt with in that territory for or in respect of any offence committed before his return under this Act other than—
(a) the offence in respect of which he is returned;
(b) any lesser offence proved by the facts proved before the Magistrate on proceedings under section 12; or
(c) any other offence being an extraditable offence in respect of which the Attorney General may consent to his being so dealt with.

(4) The Attorney General shall not give his consent under subsection (3)(c) if he has reasonable grounds for believing that the offence to which the request for consent relates could have been charged prior to return if due diligence had been exercised.

(5) Any such arrangement as is mentioned in subsection (3) may be an arrangement made for the particular case or an arrangement of a more general nature; and for the purposes of that subsection a certificate issued by or under the authority of the Attorney General confirming the existence of an arrangement with any territory and stating its terms is conclusive evidence of the matters contained in the certificate.

(6) A person’s return, under this Act, to a declared Commonwealth or foreign territory shall not be debarred by reason only of the fact that the person will be sent from that territory to another territory for or in respect of any offence committed before his return under this Act.

(7) The reference in this section to an offence of a political character does not include—
(a) an offence against the life or person of a Head of State, Head of Government, or Minister of Government, or of his spouse, or of any dependant relative of his;
(b) an act declared, under any multilateral international convention having the force of law in Trinidad and Tobago, to constitute an offence for which a person may be returned under this Act to a declared Commonwealth or foreign territory, notwithstanding the political character or motivation of such act.

(8) For the purposes of this Act, an offence against a declared Commonwealth or foreign territory may be regarded as being an offence of a political character notwithstanding that there are not competing political parties in that territory.

8A. Restriction on return: hostage-taking.
(1) A person accused of an offence under the Taking of Hostages Act shall not be returned under this Act to a declared Commonwealth territory or a declared foreign territory, which is party to the Convention, or committed to or kept in custody for the purposes of the return, if it appears to the Attorney General, to the Magistrate on proceedings under section 12, or to the High Court on an application for habeas corpus or under section 14 for review of an order, or to the Court of Appeal on the hearing of an appeal under section 15—
(a) that that person might, if returned, be prejudiced at his trial by reason of the impossibility of effecting communications between him and the appropriate authorities of the State entitled to exercise rights of protection in relation to him; and
(b) that the facts constituting the offence of which he has been acquitted or convicted also constitute an offence under section 3 of the Taking of Hostages Act.

(2) Where the Minister certifies that a territory is a party to the Convention the certificate shall, in any proceedings under this Act, be conclusive evidence of that fact.

(3) In this section “the Convention” means the Convention referred to in section 2 of the Taking of Hostages Act.


9.Request for return.
(1) Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with thereunder except in pursuance of an order of the Attorney General (hereafter referred to as an authority to proceed), issued in pursuance of a request made to the Attorney General by or on behalf of the Government of the declared Commonwealth territory, or the declared foreign territory, in which the person to be returned is accused or was convicted.

(2) There shall be furnished with any request made for the purposes of this section on behalf of any territory a record of the case which shall include—
(a) in the case of a person accused of an extraditable offence, a warrant for his arrest issued in that territory and a document summarising the evidence available to that territory for use in the prosecution of the person;
(b) in the case of a person unlawfully at large after conviction of an extraditable offence, a certificate of the conviction and sentence in that territory, and a statement of the amount, if any, of that sentence which has been served;
together in each case with—
(c) particulars of the person whose return is requested;
(d) particulars of the facts upon which and the law under which he is accused or was convicted;
(e) evidence that provision is made by the law of that territory for the specialty rule provided for by section 8(3), where the specialty rule is not made by an arrangement with that territory; and
(f) evidence sufficient to justify the issue of a warrant for his arrest under section 10.

(3) On receipt of a request made for the purposes of this section on behalf of any territory, the Attorney General may, in the form set out in Form 1 in the Second Schedule, issue an authority to proceed signifying to a Magistrate that a request has been made and requiring him to proceed with the case in accordance with the provisions of this Act.

(4) The Attorney General may receive supplementary evidence to the record of the case and re-issue an authority to proceed to replace one issued under subsection (3) or this subsection at any time before proceedings under section 12 begin, and all previous documents issued and orders made by the Magistrate apply in respect of a re-issued authority to proceed, unless the Magistrate, on application of the person or the Attorney General, orders otherwise.

(5) Where the Attorney General re-issues an authority to proceed under subsection (4) and the person applies for another date to be set for the beginning of proceedings under section 12, in order to give the person an opportunity to examine the re-issued authority to proceed, the Magistrate may set another date for the hearing.

(6) The Attorney General may amend the authority to proceed after the hearing has begun in accordance with the evidence that is produced during the hearing.

(7) The Attorney General may not issue an authority to proceed or may withdraw one already issued if it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act.

(8) Where the Attorney General withdraws an authority to proceed after proceedings under section 12 have begun, the Magistrate shall discharge the person and set aside any order made with respect to the remand of the person in custody or on bail.


10. Arrest for purposes of committal.
(1) A warrant for the arrest of a person accused of an extraditable offence, or alleged to be unlawfully at large after conviction of an extraditable offence, may be issued by a Magistrate—
(a) in the form set out in Form 2 in the Second Schedule, on the receipt of an authority to proceed; or
(b) in the form set out in Form 3 in the Second Schedule, without an authority to proceed, upon information that the said person is or is believed to be in or on his way to Trinidad and Tobago,
and any warrant issued by virtue of paragraph (b) is in this Act referred to as a provisional warrant.

(2) A warrant of arrest under this section may be issued upon such evidence as would, in the opinion of the Magistrate, justify the issue of a warrant for the arrest of a person accused of committing a corresponding offence or, as the case may be, of a person alleged to be unlawfully at large after conviction of an offence, if the offence had been committed or the offender convicted in Trinidad and Tobago; and for the purposes of the issue of a provisional warrant, there may be received in evidence any document which purports to bear the seal of the International Criminal Police Organisation (generally referred to as Interpol) and was issued to the Commissioner of Police for the purpose of requesting the assistance of the Commissioner in the ascertainment of the location of a person accused of an extraditable offence, or alleged to be unlawfully at large after conviction of an extraditable offence, in a declared Commonwealth or foreign territory.

(3) Where a provisional warrant is issued, the Magistrate by whom it is issued shall forthwith give notice to the Attorney General, and transmit to him the information and evidence, or certified copies of the information and evidence, upon which it was issued; and the Attorney General shall, if he decides not to issue an authority to proceed in respect of the person to whom the warrant relates, or may in any other case, by order cancel the warrant and, if that person has been arrested thereunder, discharge him from custody.

(4) A warrant of arrest issued under this section may be executed in any part of Trinidad and Tobago and may be so executed by any person to whom it is directed or by any constable.

(5) Where a warrant is issued under this section for the arrest of a person accused of an offence of stealing or receiving stolen property or any other offence in respect of property, a Magistrate in any part of Trinidad and Tobago shall have the like power to issue a warrant to search for the property as if the offence had been committed within the jurisdiction of the Magistrate.

11. Consent order for return.
(1) Where the return of any person is requested under this Part by a declared Commonwealth territory or a declared foreign territory and such person is arrested in pursuance of a warrant under section 10, such person may request the Attorney General to order his return without any proceedings before a Magistrate under section 12.

(2) Where the Attorney General consents to the request made by such person under subsection (1) and is satisfied that such person understands the consequences of the request, the Attorney General shall, without any proceedings before a Magistrate under section 12, in the form set out in Form 4 in the Second Schedule, order such person to be committed to custody, there to be kept for the purposes of the return unless admitted to bail; and at any time thereafter the Attorney General shall, with the consent of such person, by warrant in the form set out in Form 5 in the Second Schedule, order him to be returned to the territory by which the request for his return was made.

(3) Where a person whose return has been ordered under subsection (2) withdraws his consent to the order before his departure from Trinidad and Tobago, he shall be brought as soon as practicable before a Magistrate for the purposes of proceedings under section 12, and thereupon shall be dealt with as if the Attorney General had not made the order.

(4) The provisions of sections 8(3), (4), (5) and (6) apply to the return of any person under this section unless the contrary is expressly requested by that person.

12. Proceedings for committal or discharge.
(1) A person arrested in pursuance of a warrant issued under section 10 and in respect of whom no order under section 11(2) has been made shall [unless previously discharged under section 10(3)], be brought as soon as practicable before a Magistrate.

(2) For the purposes of proceedings under this section a Magistrate shall have the like jurisdiction and powers, as nearly as may be, including power to adjourn the case and meanwhile to remand the person arrested under the warrant either in custody or on bail, as when the Magistrate is acting at a preliminary enquiry.

(3) Where any person is arrested and in custody by virtue of a provisional warrant but no authority to proceed has been received in respect of him, the Magistrate may fix a reasonable period (of which the Magistrate shall give notice to the Attorney General) after which the person will be discharged from custody unless the authority to proceed has been received.

(4) Where an authority to proceed has been issued in respect of the person arrested and the Magistrate is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority to proceed relates is an extraditable offence and is further satisfied—
(a) where the person is accused of the offence, that—
(i) there is evidence admissible under this Act of conduct that, had it occurred in Trinidad and Tobago, would justify committal for trial in Trinidad and Tobago for the offence set out in the authority to proceed; and
(ii) the person is the person sought by the declared Commonwealth or foreign territory; or
(b) where the person is alleged to be unlawfully at large after conviction of the offence, that—
(i) the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed;
(ii) the person is the person who was convicted; and
(iii) the person appears to be unlawfully at large, the Magistrate shall, unless his committal is prohibited by any other provision of this Act, commit him to custody by warrant in the form set out in Form 6 in the Second Schedule to await the warrant of the Attorney General for his return; but if the Magistrate is not so satisfied or if the committal of that person is so prohibited, the Magistrate shall discharge him from custody.

13. Application for habeas corpus.
(1) The Magistrate shall, on committing any person to custody under section 12, inform that person in ordinary language of his right to make an application to the High Court for habeas corpus and shall forthwith give notice of the committal to the Attorney General.

(2) A person committed to custody under section 12 shall not be returned under this Act—
(a) until the expiration of the period of fifteen days beginning with the day on which the order for his committal is made, unless he waives, in writing, the entire period or any part thereof;
(b) if an application for habeas corpus is made in his case, so long as proceedings on that application are pending.

(3) On any such application made under this section the High Court may, without prejudice to any other jurisdiction of the High Court, order the person committed to be discharged from custody if it appears to the High Court that by reason of—
(a) in the case of a declared Commonwealth territory, the trivial nature of the extraditable offence of which he is accused or was convicted; and
(b) in the case of a declared Commonwealth or foreign territory—
(i) the passage of time since he is alleged to have committed the extraditable offence or to have become unlawfully at large, as the case may be;
(ii) the accusation against him not having been made in good faith in the interests of justice; or
(iii) any other sufficient cause, it would, having regard to all the circumstances, be unjust or oppressive to return the person.

(4) On any such application the High Court may receive additional evidence relevant to the exercise of its jurisdiction under section 8 or under subsection (3).

(5) For the purposes of this section, proceedings on an application for habeas corpus shall be treated as pending until any appeal in those proceedings is disposed of; and an appeal shall be treated as disposed of at the expiration of the time within which the appeal may be brought or, where leave to appeal is required, within which the application for leave may be made, if the appeal is not brought or the application made within that time.

Article 87
Requests for cooperation: general provisions
1. (a) The Court shall have the authority to make requests to States Parties for
cooperation. The requests shall be transmitted through the diplomatic channel or any other
appropriate channel as may be designated by each State Party upon ratification, acceptance,
approval or accession.
Subsequent changes to the designation shall be made by each State Party in accordance
with the Rules of Procedure and Evidence.
(b) When appropriate, without prejudice to the provisions of subparagraph (a),
requests may also be transmitted through the International Criminal Police Organization or any
appropriate regional organization.
2. Requests for cooperation and any documents supporting the request shall either be in or be
accompanied by a translation into an official language of the requested State or one of the working
languages of the Court, in accordance with the choice made by that State upon ratification,
acceptance, approval or accession.
Subsequent changes to this choice shall be made in accordance with the Rules of
Procedure and Evidence.
3. The requested State shall keep confidential a request for cooperation and any documents
supporting the request, except to the extent that the disclosure is necessary for execution of the
request.
4. In relation to any request for assistance presented under this Part, the Court may take such
measures, including measures related to the protection of information, as may be necessary to
ensure the safety or physical or psychological well-being of any victims, potential witnesses and
their families. The Court may request that any information that is made available under this Part
shall be provided and handled in a manner that protects the safety and physical or psychological
well-being of any victims, potential witnesses and their families.
5. (a) The Court may invite any State not party to this Statute to provide assistance under
this Part on the basis of an ad hoc arrangement, an agreement with such State or any other
appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc
arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such
arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the
Security Council referred the matter to the Court, the Security Council.
6. The Court may ask any intergovernmental organization to provide information or
documents. The Court may also ask for other forms of cooperation and assistance which may be
agreed upon with such an organization and which are in accordance with its competence or
mandate.
7. Where a State Party fails to comply with a request to cooperate by the Court contrary to
the provisions of this Statute, thereby preventing the Court from exercising its functions and
powers under this Statute, the Court may make a finding to that effect and refer the matter to the
Assembly of States Parties or, where the Security Council referred the matter to the Court, to the
Security Council.

Article 88
Availability of procedures under national law
States Parties shall ensure that there are procedures available under their national law for
all of the forms of cooperation which are specified under this Part.

Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the
material supporting the request outlined in article 91, to any State on the territory of which that
person may be found and shall request the cooperation of that State in the arrest and surrender of
such a person. States Parties shall, in accordance with the provisions of this Part and the procedure
under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on the
basis of the principle of ne bis in idem as provided in article 20, the requested State shall
immediately consult with the Court to determine if there has been a relevant ruling on
admissibility. If the case is admissible, the requested State shall proceed with the execution of the
request. If an admissibility ruling is pending, the requested State may postpone the execution of
the request for surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law,
transportation through its territory of a person being surrendered to the Court by another State,
except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with
article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization;
and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of
transit;
(d) No authorization is required if the person is transported by air and no landing is
scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may
require a request for transit from the Court as provided for in subparagraph (b). The transit State
shall detain the person being transported until the request for transit is received and the transit is
effected, provided that detention for purposes of this subparagraph may not be extended beyond
96 hours from the unscheduled landing unless the request is received within that time.
4. If the person sought is being proceeded against or is serving a sentence in the requested
State for a crime different from that for which surrender to the Court is sought, the requested State,
after making its decision to grant the request, shall consult with the Court.

Article 90
Competing requests
1. A State Party which receives a request from the Court for the surrender of a person under
article 89 shall, if it also receives a request from any other State for the extradition of the same
person for the same conduct which forms the basis of the crime for which the Court seeks the
person’s surrender, notify the Court and the requesting State of that fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the
request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in
respect of which surrender is sought is admissible and that determination takes into account the
investigation or prosecution conducted by the requesting State in respect of its request for
extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the
requested State’s notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may,
at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal
with the request for extradition from the requesting State but shall not extradite the person until the
Court has determined that the case is inadmissible. The Court’s determination shall be made on an
expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not
under an international obligation to extradite the person to the requesting State, shall give priority
to the request for surrender from the Court, if the Court has determined that the case is admissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Curt, the
requested State may, at its discretion, proceed to deal with the request for extradition from the
requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing
international obligation to extradite the person to the requesting State not Party to this Statute, the
requested State shall determine whether to surrender the person to the Court or extradite the
person to the requesting State. In making its decision, the requested State shall consider all the
relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime
was committed in its territory and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting
State.
7. Where a State Party which receives a request from the Court for the surrender of a person
also receives a request from any State for the extradition of the same person for conduct other than
that which constitutes the crime for which the Court seeks the person’s surrender:
(a) The requested State shall, if it is not under an existing international obligation to
extradite the person to the requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing international obligation to
extradite the person to the requesting State, determine whether to surrender the person to the Court
or to extradite the person to the requesting State. In making its decision, the requested State shall
consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall
give special consideration to the relative nature and gravity of the conduct in question.
8. Where pursuant to a notification under this article, the Court has determined a case to be
inadmissible, and subsequently extradition to the requesting State is refused, the requested State
shall notify the Court of this decision.

Article 91
Contents of request for arrest and surrender
1. A request for arrest and surrender 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. In the case of a request for the arrest and surrender of a person for whom a warrant of
arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be
supported by:
(a) Information describing the person sought, sufficient to identify the person, and
information as to that person’s probable location;
(b) A copy of the warrant of arrest; and
(c) Such documents, statements or information as may be necessary to meet the
requirements for the surrender process in the requested State, except that those requirements
should not be more burdensome than those applicable to requests for extradition pursuant to
treaties or arrangements between the requested State and other States and should, if possible, be
less burdensome, taking into account the distinct nature of the Court.
3. In the case of a request for the arrest and surrender of a person already convicted, the
request shall contain or be supported by:
(a) A copy of any warrant of arrest for that person;
(b) A copy of the judgement of conviction;
(c) Information to demonstrate that the person sought is the one referred to in the
judgement of conviction; and
(d) If the person sought has been sentenced, a copy of the sentence imposed and, in
the case of a sentence for imprisonment, a statement of any time already served and the time
remaining to be served.
4. 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 (c). During the consultations, the State Party shall advise the Court of the
specific requirements of its national law.

Article 92
Provisional arrest
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending
presentation of the request for surrender and the documents supporting the request as specified in
article 91.
2. The request for provisional arrest shall be made by any medium capable of delivering a
written record and shall contain:
(a) Information describing the person sought, sufficient to identify the person, and
information as to that person’s probable location;
(b) A concise statement of the crimes for which the person’s arrest is sought and of the
facts which are alleged to constitute those crimes, including, where possible, the date and location
of the crime;
(c) A statement of the existence of a warrant of arrest or a judgement of conviction
against the person sought; and
(d) A statement that a request for surrender of the person sought will follow.
3. A person who is provisionally arrested may be released from custody if the requested State
has not received the request for surrender and the documents supporting the request as specified in
article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the
person may consent to surrender before the expiration of this period if permitted by the law of the
requested State. In such a case, the requested State shall proceed to surrender the person to the
Court as soon as possible.
4. The fact that the person sought has been released from custody pursuant to paragraph 3
shall not prejudice the subsequent arrest and surrender of that person if the request for surrender
and the documents supporting the request are delivered at a later date.