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PART I
PRELIMINARY
3. Interpretation -
(1) In this Act, unless the contest otherwise requires – “court” means the Supreme Court; “crime within the jurisdiction of the ICC” means:
(b) an offence against the administration of justice over which the ICC has jurisdiction under article 70 of the Statute;
“ICC prisoner” means a person on whom a sentence of imprisonment has been imposed by the ICC and includes a person who is held in custody at the request of the ICC during a sitting of the ICC in Samoa;
PART III
GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
27. Application -
(1) This Part of this Act shall apply to all requests for assistance received under Parts, IV, V and VI.
(2) Parts IV,V, and VII shall apply to every request made by the ICC, whether the acts under investigation or subject to prosecution are alleged to have been committed before or after the date on which this Act comes into force.
(3) Part VI shall apply to the enforcement of every sentence, penalty or order of the ICC, whether the offence to which the sentence, penalty or order relates was committed before after the date on which this Act comes into force.
(4) Part VII shall apply to every investigation or sitting of the ICC whether the alleged offence or offence to which the investigation or sitting relates was committed before or after the date on which this Act comes into force.
28. Requests for assistance -
A request for assistance is a request made by the ICC to the Minister, in respect of an investigation or prosecution that the Prosecutor is conducting or proposing to conduct, in relation to a crime within the jurisdiction of the ICC, for:
(a) assistance in respect of any one or more of the following, namely –
(i) the provisional arrest, arrest, and surrender to the ICC of a person in relation to whom the ICC has issued an arrest warrant or given a judgment of conviction;
(ii) the identification and whereabouts of persons or the location of items;
(iii) the taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the ICC;
(iv) the questioning of any person being investigated or prosecuted;
(v) the service of documents, including judicial documents;
(vi) facilitating the voluntary appearance of persons (other than prisoners) as witnesses or experts before the ICC;
(vii) the temporary transfer of prisoners;
(viii) the examination of places or sites, including the exhumation and examination of gravesites;
(ix) the execution of searches and seizures;
(x) the provision of records and documents, including official records and documents;
(xi) the protection of victims and witnesses and the preservation of evidence;
(xii) the identification, tracing and restraining, or seizure of proceeds of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(b) any other type of assistance that is not prohibited by the law of Samoa with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC and the enforcement of orders of the ICC made after convictions for such crimes.
29. Making of requests -
(1) Subject to subsection (2), a request for assistance shall be made in writing, directly to the Minister.
(2) A request for provisional arrest under article 92 of the Statute or an urgent request for other forms of assistance under article 93 of the Statute may be made using any medium capable of delivering a written record.
(3) Where a request is made for supporting documents to be transmitted, this Act shall apply as if the documents so sent were the originals and a copy of such documents shall be receivable in evidence.
(4) If a request is made in accordance with subsection (2), it shall be followed by a written request under subsection (1).
30. Confidentiality of requests -
A request for assistance and any document or part of a document supporting the request shall be kept confidential by any person dealing with the request in whole or in part, except to the extent that disclosure is necessary for execution of the request.
31. Execution of requests -
A request for assistance shall be executed in the manner specified in the request, including following any procedure outlined therein and permitting the presence and participation of persons specified in the request in the execution process, unless execution in this manner is prohibited under the law of Samoa.
32. State or Diplomatic immunity -
(1) Any state or diplomatic immunity attaching to a person or premises by reason of a connection with a State Party to the ICC Statute does not prevent proceedings under this Act, in relation to that person.
(2) If the Minister is of the opinion that a request for provisional arrest, arrest and surrender or other assistance would require Samoa to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of another state which is not a party to the Statute, the Minister shall consult with the ICC and request a determination as to whether article 98(1) of the Statute applies.
(3) If the Minister is of the opinion that a request for provisional arrest or arrest and surrender would require Samoa to act inconsistently with its obligations under an international agreement with a state which is not a party to the Statute pursuant to which the consent of the sending state is required to surrender a person of that State to the ICC, the Minister shall consult with the ICC and request a determination as to whether article 98(2) of the Statute applies.
33. Response to requests -
(1) The Minister shall notify the ICC without undue delay, of the person’s response to a request for assistance and the outcome of any action that has been taken to execute the request.
(2) Before deciding to postpone or refuse a request the Minister shall consult with the ICC to ascertain whether the assistance sought could be provided subject to conditions or at a later date or in an alternative manner.
(3) If the Minister decides, in accordance with the Statute and this Act, to refuse or postpone the assistance requested, in whole or in part, the notification to the ICC shall set out the reasons for the decision.
(4) If the request for assistance cannot be executed for any other reason, the Minister shall set out in the notification to the ICC, the reasons for the inability to execute the request.
34. Consultations -
(1) Where the Minister receives a request under this Part in relation to which the Minister identifies problems which may impede or prevent the execution of the request, the Minister shall consult with the Court without delay in order to resolve the matter.
(2) Problems identified under subsection (1) may include:
(a) insufficient information to execute the request;
(b) in the case of a request for surrender, the person sought cannot be located or that the investigation conducted has determined that the person in Samoa is clearly not the person named in the warrant; or
(c) the fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.
PART VI
ENFORCEMENT OF SENTENCES AND ORDERS OF THE ICC IN SAMOA
83. Application of this Part -
This Part of this Act applies to the enforcement of sentences imposed by the ICC and of orders for the payment of fines, restraining orders, forfeiture orders and orders for reparation, made by the ICC.
84. Samoa may act as State of enforcement -
(1) The Minister may notify the ICC that Samoa is willing to allow persons who are ICC prisoners as a result of being sentenced to imprisonment by the ICC to serve those sentences in Samoa, subject to any conditions specified in the notification.
(2) The Minister shall, before issuing a notification under subsection (1), consult with any other relevant Minister.
85. Request for sentence to be served in Samoa -
(1) Where -
(a) the Minister has issued a notification under section 84 and has not withdrawn that notification and the ICC imposes a sentence of imprisonment under the Statute on a person convicted of a crime within the jurisdiction of the ICC; and
(b) the ICC designates Samoa under article 103 of the Statute, as the State in which the sentence is to be served, the Minister shall consider whether to accept the designation.
(2) The Minister may accept the designation of Samoa as the State in which the sentence is to be served if the Minister is satisfied that ICC has agreed to the conditions specified in the notification made under section 84, and in the case of a prisoner who is not a citizen of Samoa the relevant Minister has consented to the sentence being served in Samoa.
86. Prisoner to be held in custody -
(1) Where the Minister accepts the designation of Samoa as the State in which a sentence of imprisonment imposed by the ICC is to be served, the ICC prisoner may be transported to Samoa in the custody of a person authorised for the purpose by the ICC.
(2) On arrival in Samoa or, if the person is already in Samoa when the sentence is imposed, on the imposition of the sentence, the Minister shall issue an order of detention in respect of the ICC prisoner and shall cause a copy of the order to be sent to the Commissioner of Prisons.
(3) The order of detention issued under subsection (2) shall be sufficient authority for the detention of the ICC prisoner until the prisoner completes, or is released from, the sentence or is transferred to another country.
(4) Subject to subsection (7), the ICC prisoner shall be detained in accordance with the laws of Samoa as if the prisoner had been sentenced to imprisonment under the law of Samoa.
(5) Notwithstanding anything in subsection (4) or in any other law -
(a) the ICC prisoner shall have the right to communicate on a confidential basis with the ICC, without impediment from any person;
(b) a Judge of the ICC or a member of the staff of the ICC may visit the ICC prisoner for the purpose of hearing any representations by the prisoner without the presence of any other person, except any representative of the prisoner.
(6) The enforcement of a sentence of imprisonment, including any decision to release or transfer the ICC prisoner shall be in accordance with Part 10 of the Statute and the Rules.
(7) The laws of Samoa relating to parole, remission, reduction or variation of sentence and pardon shall not apply to a sentence imposed by the ICC.
87. Transfer of prisoner to ICC for review of sentence -
(1) Where the ICC, under article 110 of the Statute, decides to review the sentence of an ICC prisoner who is serving that sentence in Samoa, the Minister shall direct that the prisoner be transferred to the ICC, at the expense of the ICC, for the purposes of enabling the ICC to review the prisoner’s sentence.
(2) The ICC prisoner shall be transferred to and from the ICC in the custody of a person authorised for the purpose by the ICC, at the expense of the ICC.
88. Transfer of prisoner to another State to complete sentence-
(1) An ICC prisoner serving a sentence in Samoa may, at any time apply to the ICC to be transferred from Samoa to complete service of sentence in another state.
(2) Where an ICC prisoner of any nationality is to be transferred from Samoa to another State to complete that sentence, the prisoner may be transported from Samoa to that
State in the custody of a person authorised for the purpose by the ICC at the expense of ICC.
89. Procedure on completion of sentence -
Upon -
(a) the completion of sentence in Samoa by an ICC prisoner who is not a citizen of Samoa;
(b) the release, on the direction of the ICC, of an ICC prisoner who is not a citizen of Samoa, the Minister may issue a removal order for that ICC prisoner under section 90.
90. Removal order -
(1) A removal order made by the Minister under this section -
(a) may either -
(i) require the person who is the subject of the order to be released into or taken into the custody of a police officer; or
(ii) if the person is not in custody, authorise any police officer to take the person into custody; and
(b) shall specify that the person is to be taken by a police officer and placed on board any aircraft or vessel for the purpose of effecting the person’s removal from Samoa to another country; and
(c) may authorise the detention in custody of the person while awaiting removal from Samoa.
(2) A removal order made under this section shall continue in force until it is executed or cancelled.
91. Delay in removal -
(1) If a person in respect of whom a removal order has been made is not conveyed out of Samoa within 48 hours after the order has issued, the person shall be brought before a Judge to determine, in accordance with subsection (2), whether the person should be detained in custody or released pending removal from Samoa.
(2) If a person is brought before a Judge under subsection (1), the Judge may, if the Judge is satisfied that the person is the person named in the order -
(a) issue a warrant for the detention of the person in custody if the Judge is satisfied that, if not detained, the person is likely to abscond; or
(b) order the release of the person subject to such conditions, if any, that the Judge thinks fit to impose.
92. Special rules in certain cases -
(1) An ICC prisoner serving a sentence in Samoa shall not -
(a) be extradited to another country on completion of the person sentence; or
(b) be required to undergo trial for an offence under the law of Samoa that relates to an act or omission alleged to have been committed prior to the person’s arrival in Samoa to serve such sentence, without agreement of the ICC.
(2) Nothing in subsection (1) shall apply to an ICC prisoner who remains voluntarily in Samoa for more than 30 days after the date of completion of, or release from, the sentence imposed on the prisoner by the ICC or who voluntarily returns to the prisoner’s home country after having left Samoa.
93. Immigration permit not required -
A person to whom this Part of this Act applies shall not be required to hold a permit or other authorisation under the law of Samoa relating to citizenship and immigration control if, and for so long as, the person is in Samoa in accordance with this Part, whether or not the person is in custody.
94. Application to citizens of Samoa -
Nothing in this Part of this Act shall be deemed to authorise the making of a removal order under section 90 in respect of a citizen of Samoa.
95. Enforcement of fines -
(1) Where the ICC requests enforcement in accordance with article 109 of the Statute of an order for the payment of a fine made under article 77(2)(a) of the Statute, the Minister shall give authority for the request to proceed, if the Minister has reasonable grounds to believe that -
(a) neither the conviction in respect of which the order was imposed, nor the order for the payment of the fine is subject to further appeal; and
(b) the order can be enforced in the manner provided in this section, and shall refer the request to the Attorney General.
(2) The Attorney General shall, without delay, cause such order to be filed in the Supreme Court.
(3) An order filed in the Supreme Court under subsection (2) shall have the same force and effect as if it were an order for the payment of a fine imposed by that court and shall be enforced accordingly.
(4) The Attorney General shall make such report to the Minister on the outcome of any action taken by it to enforce the order as it considers to be appropriate in the circumstances.
(5) Nothing in this section shall be construed as limiting or affecting the provision of other types of assistance to the ICC in relation to a penalty imposed under article 77 of the Statute or as empowering the court to modify or vary the order of the ICC.
96. Enforcement of forfeiture orders -
(1) Where the ICC requests enforcement in accordance with article 109 of the Statute, of an order for forfeiture of property made under article 77(2)(b) of the Statute, the Minister shall give authority for the request to proceed if the Minister has reasonable grounds to believe that -
(a) neither the conviction in respect of which the order was imposed, nor the forfeiture order, is subject to further appeal; and
(b)the property identified by the ICC is located in Samoa or that the person concerned, directly or indirectly, holds property in Samoa that may be the subject of the forfeiture order, and shall refer the request to the Attorney General for enforcement in accordance with this section.
(2) Upon receipt of a referral under subsection (1), the Attorney General shall file the original or a certified copy of the forfeiture order of the ICC with the Supreme Court.
(3) Upon the filing of the order in the Supreme Court under subsection (2), the court may direct the Attorney General to do either or both of the following -
(a) give notice of the filing, in the manner and within the time the court considers appropriate to such persons, other than a person convicted of a crime in respect of which the order was made, as the court has reason to believe may have an interest in the property;
(b) publish notice of the filing in the manner and within the time the court considers appropriate.
(4) A forfeiture order filed in the Supreme Court under subsection (2) shall have, from the date it is filed, the same force and effect as if it were an order for the forfeiture of property issued by that court and shall be enforced accordingly.
(5) A forfeiture order filed under subsection (2) shall not be enforced until after the expiry of any period specified by the court in any notice given or published under subsection (3), or two months from the filing of the order, whichever is the longer period.
(6) Where a forfeiture order is filed in the Supreme Court under subsection (2), a person, other than a person convicted of a crime in respect of which the order was made, who claims an interest in the property, may apply to the court, with notice to the Attorney General.
(7) A person on whom notice of the hearing of the ICC held in connection with the making of the forfeiture order was served or who appeared at the hearing shall not make an application under subsection (6) without leave of the court.
(8) The Supreme Court shall grant leave under subsection (7) only where it determines that it would be contrary to the interests of justice not to do so.
(9) An application under subsection (6) shall be made before the expiry of any period specified in a notice made or published under subsection (3) or within two months of the filing of the order, whichever is the longer period, unless the court grants leave.
(10) On an application under subsection (6), the court may make an order for the enforcement of the forfeiture order subject to the interest of the applicant if satisfied that –
(a) the applicant has an interest in the property;
(b) hearing before the ICC or through no fault of the person, did not appear at the hearing;
(c) the applicant was not in any way involved in the commission of the crime in respect of which the order was made; and
(d) the applicant had no knowledge that the property constituted the proceeds of, or was associated with, the crime.
(11) Where the court makes an order under subsection (10), the Court may -
(a) declare the nature, extent and value of the applicant’s interest in the property; and
(b) either direct that the interest be transferred to the applicant or that payment be made to the applicant of an amount equivalent to the value of the interest.
97. Transfer of funds realized to ICC -
The Minister shall arrange for the transfer of funds realized through the enforcement of a fine under section 95 or a forfeiture order under section 96 to the ICC (subject to the deduction of reasonable costs related to the enforcement procedure).
98. Orders for forfeiture of Property on conviction by ICC -
(1) Where any person is convicted by the ICC of a crime within the jurisdiction of the ICC, the Supreme Court may, on an application made by the Attorney General, order that any property situated in Samoa -
(a) used for, or in connection with; or
(b) derived directly or indirectly from, the commission of that crime, be forfeited to the State, if satisfied that no order of forfeiture has been or will be made by the ICC under article 77(2)(b) of the Statute in respect of that property.
(2) Before making an order under subsection (1), the court shall give every person appearing to have an interest in the property in respect of which the order is proposed to be made, an opportunity of being heard, and subsections (3), (4), (5), (6), (7), (8), (9), (10) and (11) of section 96 shall, mutatis mutandis, apply to an order made under this section.
(3) Property forfeited to the State under subsection (1) shall vest in the State -
(a) if no appeal has been made against the order, at the end of the period within which an appeal may be made against the order; and
(b) if an appeal has been made against the order, on the final determination of the appeal.
99. Enforcement of orders for victim reparation -
(1) Where the ICC requests enforcement in accordance with article 109 of the Statute of an order requiring reparation made under article 75 of the Statute, the Minister shall give authority for the request to proceed, if the Minister has reasonable grounds to believe that -
(a) neither the conviction in respect of which the order was imposed nor the order requiring reparation is subject to further appeal; and
(b) the order can be enforced in the manner provided in this section, and shall refer the request to the Attorney General.
(2) The Attorney General shall, without delay file such order in the Supreme Court.
(3) Every order filed in the Supreme Court under subsection (2) shall -
(a) if the order requires a monetary payment, have force and effect as if it were an order for the payment of compensation imposed by that court; or
(b) if the order requires the restitution of assets, property or other tangible items, have force and effect as if it were an order for the restitution of property made by that court; or
(c) if the order requires the granting of any other relief, have force and effect as if it were an order for the granting of such relief made by that court and every such order shall be enforced accordingly.
(4) The Attorney General shall, without delay, make such report to the Minister on the outcome of any action taken by it to enforce the order as it considers to be appropriate in the circumstances.
(5) Nothing in this section shall be construed as limiting or affecting the provision of other types of assistance to the ICC in relation to an order made under article 75 of the Statute or as empowering the court to modify the order of the ICC.
(6) The Minister shall consult with the ICC as to whether the funds realized through the enforcement of an order under this section should be transferred directly to specified victims or through the Victims Fund of the ICC.
(7) The Minister shall make arrangements for the transfer of the funds realized through the enforcement of an order under this section as determined through the consultations under subsection (6).
100. Assistance in enforcement of restraining order -
(1) Where the ICC requests assistance in the enforcement of a restraining order issued by the ICC in respect of property in Samoa, the Minister shall give authority for the request to proceed if the Minister has reasonable grounds to believe that -
(a) the restraining order is not subject to further appeal; and
(b) the property is located in Samoa, and shall refer the request to the Attorney General.
(2) The Attorney General in Samoa shall file such order in the appropriate court.
(3) Every order filed in the Supreme Court under subsection (2) shall have force and effect as if it were a restraining order made by that court and shall be enforced accordingly.
(4) Nothing in this section shall be construed as limiting or affecting the provision of other types of assistance to the ICC in relation to the enforcement of a restraining order made by it or as empowering the court to modify the order of the ICC.
Article 103
Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.
(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.
(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.
2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.
(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty standards governing the treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.
Article 104
Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.
2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.
Article 105
Enforcement of the sentence
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.
2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.
Article 106
Supervision of enforcement of sentences and conditions of imprisonment
1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.
2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.
3. Communications between a sentenced person and the Court shall be unimpeded and confidential.
Article 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.