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 IV
ARREST AND SURRENDER OF PERSON TO ICC


35. Application of this Part -

This Part of this Act applies to requests for assistance from the ICC, for the arrest and surrender, or the provisional arrest, of a person.

PART IV
ARREST AND SURRENDER OF PERSON TO ICC


42. Provisional arrest -

(1) Where the Minister receives a request from the ICC for provisional arrest of a person under article 92 of the Statute, the Minister shall, if satisfied that the request is supported by the information required by paragraph (2) of article 92 of the Statute, transmit the request and any supporting documents to the Commissioner of Police with a direction for the arrest of the person.

(2) The Minister shall transmit a copy of the direction to the Attorney General.

(3) Where the Commissioner of Police receives a direction from the Minister under subsection (1), the Commissioner shall instruct the police to carry out the direction.

(4) The Commissioner of Police shall, after carrying out the direction, notify the Minister and the Attorney General that the direction has been carried out.

(5) Where a person has been provisionally arrested under this section, and the Minister receives the formal request for arrest and surrender as provided for in article 91 of the Statute, the Minister shall immediately send a notice to the Judge and proceed with the transmission of the request in accordance with section 36.

(6) The Judge shall send any declaration made under subsection (4) to the Minister, and the Minister shall transmit it to the ICC.

Article 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear
5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the
arrest and surrender of the person under Part 9.

Article 59
Arrest proceedings in the custodial State
1. A State Party which has received a request for provisional arrest or for arrest and surrender
shall immediately take steps to arrest the person in question in accordance with its laws and the
provisions of Part 9.
2. A person arrested shall be brought promptly before the competent judicial authority in the
custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person’s rights have been respected.
3. The person arrested shall have the right to apply to the competent authority in the custodial
State for interim release pending surrender.
4. In reaching a decision on any such application, the competent authority in the custodial
State shall consider whether, given the gravity of the alleged crimes, there are urgent and
exceptional circumstances to justify interim release and whether necessary safeguards exist to
ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be
open to the competent authority of the custodial State to consider whether the warrant of arrest
was properly issued in accordance with article 58, paragraph 1 (a) and (b).
5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make
recommendations to the competent authority in the custodial State. The competent authority in
the custodial State shall give full consideration to such recommendations, including any
recommendations on measures to prevent the escape of the person, before rendering its decision.
6. If the person is granted interim release, the Pre-Trial Chamber may request periodic
reports on the status of the interim release.
7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the
Court as soon as possible.


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.