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.

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.

43. Person arrested on a provisional warrant-(1) Where a person has been provisionally arrested under section 42, the Judge shall not proceed under section 45 until –
(a) the Judge has received a notice from the Minister that the request for surrender and supporting documents required under article 92 of the Statute have been received by the Minister; and
(b) the relevant documents have been transmitted to the Judge by the Minister under section 42(5).
(2) Pending the receipt of the notice and documents under subsection (1), the Judge may adjourn the proceedings from time to time.
(3) If the Judge has not received the notice specified in subsection (1)(a) within 60 days of the date of the provisional arrest of the person, the Judge shall release the person from custody or on bail unless satisfied that the period for submission of the notice should be extended in the interests of justice.
(4) Notwithstanding subsection (4), a person who is provisionally arrested may consent to surrender before the expiration of 60 days, in which case, the Minister shall proceed to surrender the person to the Court as soon as possible.
(5) The release of a person under subsection (3) shall be without prejudice to any subsequent proceedings that may be brought for the arrest and surrender of the person to the ICC whether for the same facts and offence or not.

44. Application for bail-(1) A person brought before a Judge under section 42 may make an application for bail.
(2) Where an application for bail is made under subsection (1), the Judge shall adjourn the hearing of the application and notify the Minister.
(3) The Minister shall, on receipt of a notification under subsection (2), consult immediately with the ICC to obtain any recommendations from the Pre-Trial Chamber under article 59(5) of the Statute, and shall convey those recommendations to the Judge.
(4) The Judge shall give full consideration to any recommendations conveyed to the Judge under subsection (3) before making a decision on the application for bail.
(5) Where no recommendations are received from the ICC within seven days of the Minister being notified of the application for bail, the Judge may proceed to hear the application.
(6) The Judge shall not release a person brought before the Judge under section 42 on bail, unless the Judge is satisfied that, having regard to the crimes alleged to have been committed by that person, there are urgent and exceptional circumstances that justify the persons release on bail and that there are sufficient safeguards to ensure that Samoa will be able to fulfill its obligations under the Statute to surrender such person to the ICC.

45. Surrender hearing-(1) The Judge before whom a person arrested under section 36 or 42 is brought shall satisfy themselves that –
(a) there is a warrant of arrest issued by the ICC or a judgment of conviction by the ICC, in respect of that person; and
(b) the warrant or judgment relates to the person before the Judge.
(2) Upon the Judge being satisfied of the matters referred to in paragraphs (a) and (b) of subsection(1) with respect to the arrested person, the Judge shall, subject to section 43, issue a delivery order in respect of that person in accordance with article 59(7) of the Statute.
(3) Where the Judge issues a delivery order under subsection (2), the Judge shall –
(a) transmit the delivery order to the Commissioner of Police for execution;
(b) commit the person to custody pending the execution of the delivery order by the Commissioner of Police;
(c) send a copy of the delivery order to the Minister; and
(d) inform the person in the ordinary language of the person’s right to make an application to the Supreme Court for a mandate in the nature of a writ of habeas corpus.
(4) If the person who is the subject of a delivery order –
(a) is in custody, the Judge shall order the continued detention of the person under the delivery order and notify the Commissioner of Prisons and the Chief Gaoler of the prison, of the delivery order; or
(b) is not in custody, the Judge shall, subject to any order with regard to bail, commit the person to custody and shall notify the Commissioner of Prisons and the Chief Gaoler of the prison.
(5) Subject to subsection (6), the Commissioner of Police shall make arrangements with the ICC for the execution of the delivery order as soon as possible, and shall notify the Minister when the person has been surrendered to the ICC or the state of enforcement, in execution of the delivery order.
(6) Subject to section 47, the Commissioner of Police shall not make arrangements with the ICC for the execution of the delivery order –
(a) until after the expiration of the period prescribed by law for making an application for habeas corpus by the person to whom the order relates; or
(b) if an application for habeas corpus is made by such person within such period, until after the final determination of the application.
(7) A delivery order issued under this section is sufficient authority for holding the person specified in the order in custody until the person’s delivery to the ICC.
(8) In deciding whether to make a delivery order under this section –
(a) the Judge shall not require evidence to establish that the trial of the person for the crime that the person he is alleged to have committed is justified before the ICC or would be justified under the law of Samoa if the act constituting such crime had been committed in Samoa; and
(b) the Judge shall not receive evidence with respect to, nor adjudicate on, any claim by the person that the person has been previously tried or convicted for the conduct for which the ICC seeks surrender of the person.
(9) If the person makes a claim, under subsection (8) (b), the Judge shall advise the Minister of this claim and the Minister shall transmit that information to the ICC.

46. Judge not to inquire into validity of warrant – In proceedings under this Part of this Act the Judge shall not inquire into, receive any evidence regarding, or make any decisions as to, the validity of any warrant or order issued or made by the ICC.

47. Surrender by consent-(1) A person may at any time notify a Judge that the person consents to being surrendered to the ICC for the crime or crimes for which the ICC seeks the surrender of the person.
(2) The Judge may accept the notification of consent under subsection (1) if –
(a) the person is before the Judge when notification of the consent to surrender is given; and
(b) the Judge is satisfied that the person has freely consented to the surrender in full knowledge of its consequences
(3) Nothing in this section shall be construed as preventing a person, in respect of whom the Judge has made a delivery order, from subsequently notifying the Minister that the person consents to surrender.
(4) For the avoidance of doubt a person arrested under a provisional warrant may consent to surrender before a request for surrender is received, in which case the Judge may make an order under subsection (5).
(5) Where the consent to surrender has been given, the Judge shall immediately make a delivery order in the same terms as section 45(2) and such of the provisions of sections 45 and 46 as are applicable shall thereupon apply.

48. Effect of delivery order-(1) A delivery order is sufficient authority for any person to receive the person to whom the order relates, keep the person in custody and convey the person to the place where the person is to be delivered up into the custody of the ICC or of the state of enforcement, in accordance with arrangements made by the Commissioner of Police.
(2) A person in respect of whom a delivery order is in force shall be deemed to be in legal custody pending delivery up under the order.
(3) If a person in respect of whom a delivery order is in force escapes or is unlawfully at large, the person may be arrested without warrant and taken to the place where the person is required to be or to be taken.

49. Procedure where Judge refuses order-(1) Where the Judge refuses to make a delivery order under section 45, the Judge shall make an order remanding the person arrested in custody for fourteen days, and shall notify the Minister of the person’s decision and of the grounds for it.
(2) The Minister may appeal to the Court of Appeal, as the case may be against the decision by the Judge refusing to make a delivery order.
(3) Where the Judge is informed that an appeal is to be taken against the decision, the order remanding the person arrested shall continue to have effect until the appeal is determined and the person is either discharged or the delivery order is executed.
(4) Where the Court of Appeal allows the appeal, it may make a delivery order or remit the case to the Judge to make a delivery order in accordance with the decision of the Supreme Court.
(5) Where the Court of Appeal dismisses the appeal, the person shall be discharged in accordance with the decision of the Supreme Court.

50. Discharge of person not delivered up-(1) If the person in respect of whom a delivery order has been made is not delivered up under the order within 60 days after the expiration of the period prescribed by law for making an application for habeas corpus or, if such an application is made within 60 days, after the final determination of the application, that person or someone duly authorised by the person may make an application to the Judge who made the delivery order, for the person’s discharge.
(2) On an application made under this section, the Judge shall order the persons discharge unless reasonable cause is shown for the delay.
(3) The discharge of a person under subsection (2) shall be without prejudice to any subsequent proceedings that may be brought for the arrest and surrender of the person to the ICC whether for the same facts and offence or not.

51. Discharge of person no longer required to be surrendered-(1) Where the ICC informs the Minister that the person arrested upon the request of the ICC is no longer required to be surrendered, the Minister shall notify the Judge of that fact and the Judge shall on receipt of the notification make an order for the discharge of the person.
(2) The discharge of a person under subsection (1) shall be without prejudice to any subsequent proceedings that may be brought for the arrest and surrender of the person to the ICC whether for the same facts and offence or not.

52. Request for temporary surrender-(1) Where a request for arrest and surrender by the ICC relates to a crime within the jurisdiction of the ICC but the person is subject to proceedings for a different offence in Samoa which have not been finally disposed of or is liable to serve a sentence of imprisonment imposed by a court in Samoa for a different offence, the Minister may authorise the temporary transfer of that person to the ICC.
(2) The Minister may, before making an authorisation under subsection (1), seek an undertaking from the ICC that the person shall be returned on completion of proceedings before the ICC or service of sentence imposed by the ICC, as the case may be.
(3) Subsections (2), (3), (4) and (5) of section 67 shall apply to an authorisation under subsection (1) with any necessary modifications.

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.