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 V
REQUESTS FOR OTHER TYPES OF ASSISTANCE


55. Application of this Part -

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

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.