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'Arrest for ICC proceedings - national procedures' in document 'Liechtenstein: Cooperation with the ICC '

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More information about the document 'Liechtenstein: Cooperation with the ICC '
The relevant provisions of implementing legislation: [1] [2] [3]
The Relevant Provisions of the Rome Statute

RELEVANT SECTIONS OF THE IMPLEMENTING LEGISLATION

II. Specific provisions

C. Search

Article 23

(1) Should the International Criminal Court or an International Tribunal request a search for arrest or should the Liechtenstein authorities learn otherwise of an order for arrest from the Court or Tribunal, the princely court shall seek the arrest of the person for the purpose of surrender to the International Criminal Court or International Tribunal if the request or order for arrest contains the necessary details about the person sought and the alleged offence. Referral to the court competent pursuant to Article 27(1) of the law on judicial assistance is not required if the person sought is not a Liechtenstein national or if there is no reason to believe that the person is in Liechtenstein.

(2) Should a person sought by the International Criminal Court or International Tribunal be searched for or arrested in Liechtenstein, the Ministry of Justice shall inform the Court or Tribunal thereof through the International Criminal Police Organisation (INTERPOL).

D. Custody pending surrender, surrender and transit

Article 24
Offer of surrender

(1) Provided there are sufficient grounds to suspect a person thought to be in Liechtenstein of a crime within the jurisdiction of the International Criminal Court or an International Tribunal, the public prosecutor, after the person has been questioned by the judge of the princely court, shall apply to the latter for a report outlining the facts of the case to be submitted to the Ministry of Justice.

(2) The Ministry of Justice shall enquire whether the International Criminal Court or International Tribunal requires the proceedings to be transferred and the person to be surrendered. If the accused person is in custody, an appropriate deadline will be set for receipt of the request for surrender. Should the latter not arrive in time, the princely court should be informed promptly thereof.

(3) The above is without prejudice to the provisions concerning the offer of surrender to the State in which the crime was committed pursuant to paragraph 28(a) of the law on judicial assistance.

Article 25
Provisional custody pending surrender

(1) In the event of a request from the International Criminal Court or an International Tribunal for provisional arrest, on application by the public prosecutor, the judge of the princely court shall order the arrest of the person sought and order provisional custody pending surrender if, on the basis of the facts of the case as reported by the International Criminal Court or International Tribunal, there are sufficient grounds to believe that the person to be found in Liechtenstein committed a crime within the jurisdiction of the International Criminal Court or International Tribunal which would warrant pre-trial custody (paragraph 131 of the Code of Criminal Procedure) had the crime been committed in Liechtenstein.

(2) Provisional custody pending surrender may not be ordered or continued when the purposes of custody can be achieved through concurrent imprisonment, pre-trial custody or custody pending extradition. In such a case the Judge of the princely court shall order the amendments to the custodial order which, for the purposes of provisional custody pending surrender, are essential to the International Criminal Court or International Tribunal. In other respects, provisional custody pending surrender shall be subject to the provisions of the Code of Criminal Procedure governing pre-trial custody.

(3) Provisional custody pending surrender may be suspended if the request for surrender and the supporting material are not transmitted within 60 days of the arrest. Release does not preclude renewed arrest and surrender should the request for surrender and the supporting material be transmitted at a later time.

(4) The princely court shall promptly transmit to the Ministry of Justice copies of the orders for the imposition, extension or suspension of provisional custody pending surrender for the purpose of informing the International Criminal Court or International Tribunal through the International Criminal Police Organisation (INTERPOL).

Article 26
Simplified surrender to the International Criminal Court

(1) Should a person being held in provisional custody pending surrender on the basis of a request from the International Criminal Court pursuant to Article 25(1) above agree to surrender to the International Criminal Court before the end of the time period in Article 25(3), the princely court shall order the person’s surrender, without prejudice to a challenge of admissibility pursuant to Article 5(2) above. In such a case the person shall be surrendered to the International Criminal Court as soon as possible.

(2) The judge of the princely court shall inform the person that his or her consent cannot be revoked. The judge’s instruction shall be noted in the record.

(3) In the event of simplified surrender there is no need for the International Criminal Court to send a request for surrender and supporting material.

Custody pending surrender and orders for surrender
Article 27
(a) at the request of the International Criminal Court

(1) In the event of a request for the arrest and surrender of an accused person from the International Criminal Court, on application by the public prosecutor, the judge of the princely court shall initiate the surrender procedure and order the arrest of the accused person, his or her custody pending surrender and, in accordance with the following paragraphs, his or her surrender to the International Criminal Court. The judge of the princely court shall not have competence to consider the allegations giving rise to the arrest warrant or the grounds therefor.

(2) Should there be significant doubts as to the identity of the person arrested, the judge of the princely court shall order appropriate investigations or ask the International Criminal Court to submit additional information. In any event, the judge of the princely court shall inform the accused person of the grounds of the warrant of arrest issued against him or her by the International Criminal Court and about his or her rights to challenge the surrender on account of a violation of the principle of “ne bis in idem” in article 20 of the Rome Statute or of a lack of jurisdiction on the part of the International Criminal Court pursuant to articles 17 to 19 of the Rome Statute. In addition, the person shall be informed of his or her right, pending a surrender order, to apply for interim release. The accused person shall be provided with copies (photocopies) of the arrest warrant or of the relevant allegations and provisions of the Rome Statute together with the translations of them provided by the International Criminal Court.

(3) Should the accused person wish to challenge the surrender on account of a violation of article 20 of the Rome Statute or a lack of jurisdiction on the part of the International Criminal Court, the International Criminal Court shall be informed thereof and be provided with the requisite documents. Concurrently the Court shall be notified of whether the challenge has a suspensive effect.

(4) The decision on surrender shall be deferred only in the event of a challenge of admissibility pursuant to Article 5(2) above until the decision by the International Criminal Court. In the event of a challenge of jurisdiction pursuant to articles 17 to 19 of the Rome Statute by a third country, the procedure in Article 30 below shall apply.

(5) Until surrender is ordered the accused person has the right to apply for interim release. When deciding on such an application it shall be ascertained whether there are urgent and exceptional circumstances which justify interim release and whether the purpose of detention may be achieved by more lenient means (paragraph 131(5) of the Code of Criminal Procedure) regardless of the gravity of the alleged crimes. Such an application shall have no suspensive effect.

(6) An application pursuant to paragraph 5 shall be notified to the International Criminal Court, indicating that it has the right to submit a recommendation within seven days. The recommendation shall be taken into consideration in the decision on the application for release.

(7) Should the International Criminal Court in its recommendation or the public prosecutor plead against the release of the accused person, the President of the Court of Appeal shall promptly decide on the application in a custody hearing.

(8) A decision dismissing the application for interim release by the accused person may be appealed against by the latter within three days before the Court of Appeal. Such an appeal shall have no suspensive effect.

(9) Orders into custody pending surrender and orders for surrender may be appealed against solely pursuant to Article 15 of the Law on the Constitutional Court. The order initiating the surrender process is not open to appeal.

II. Specific provisions

D. Custody pending surrender, surrender and transit

Article 29
Transfer to the International Criminal Court or International Tribunal

(1) Once the order for surrender to the International Criminal Court or International Tribunal is enforceable, the judge of the princely court shall instruct the national police to promptly transfer the person to be surrendered to the International Criminal Court or International Tribunal. Unless there are serious security concerns or the Court or Tribunal seeks another form of delivery, the person to be surrendered shall be conveyed by air under the escort of Liechtenstein officials.

(2) The time of surrender shall be agreed with the International Criminal Court. Should circumstances prevent the transfer of the person to be surrendered, a new time will be agreed for the surrender.

(3) The time of surrender to the International Tribunal shall be notified to it and to the Netherlands authorities in due time by the national police, and include a reference to the time-limit on custody pursuant to Article 28(4) above.

(4) The judge of the princely court shall submit a copy of the order for surrender to the Ministry of Justice for onward transmission to the International Criminal Court or International Tribunal and also inform it of the time of the transfer to the latter.

Article 30
Provisional transfer to the International Criminal Court and repeal of the order for surrender

(1) In the event of criminal proceedings against the accused person in Liechtenstein or if the latter is serving a sentence in Liechtenstein for matters other than those for which surrender to the International Criminal Court was ordered, the person may be transferred provisionally to the International Criminal Court under conditions to be agreed on with it.

(2) The judge of the princely court shall promptly suspend custody pending surrender and repeal the order for surrender if:
(1) the International Criminal Court so requests or otherwise revokes its request for surrender;
(2) it is ascertained that in all likelihood the person arrested is not the person sought; or
(3) the International Criminal Court determines its lack of jurisdiction or the inadmissibility of the proceedings before it.

Article 31
Competing requests from the International Criminal Court and a State

(1) Should the Principality of Liechtenstein receive a request for surrender from the International Criminal Court and a request for extradition from another State in respect of the same person, the Ministry of Justice shall decide which request is given priority pursuant to article 90 of the Rome Statute.

(2) Should the Ministry of Justice give priority to a request for extradition from another State over a request for surrender from the International Criminal Court and the request for extradition is subsequently rejected or withdrawn, the International Criminal Court shall be notified of this without delay.

Article 32
Speciality of surrender to the International Criminal Court

(1) A person surrendered to the International Criminal Court pursuant to this law may not be prosecuted, taken into custody or sentenced for any act committed prior to transfer other than that for which he or she is being surrendered.

(2) At the request of the International Criminal Court the person may be released from the restrictions in paragraph 1. Prior to a decision in respect of such a request, the International Criminal Court may be requested to transmit a record regarding the statements of the person surrendered and additional information.

(3) The decision on such a request shall be taken by the Ministry of Justice. Release from the said restrictions shall be granted if the offence in respect of which the request is made falls within the jurisdiction of the International Criminal Court and there are no grounds for challenging the admissibility of proceedings before the International Criminal Court pursuant to Article 5(2) above.

Article 33
Transit and transport

(1) At the request of the International Criminal Court, persons may be transported through Liechtenstein and held in custody to secure such transit.

(2) There is no need to apply for authorisation where the person is conveyed by air and no landing is scheduled on Liechtenstein territory.

(3) In the event of an unscheduled landing, the person in transit shall be arrested and the International Criminal Court shall be requested to transmit a request for transit together with the documents referred to in article 89(3)(b) of the Rome Statute.

(4) The person in transit shall be released if the request for transit has not been received within 96 hours. Such release shall not preclude a renewed arrest on the basis of a request pursuant to Article 25(1) or 27(1) above.

(5) The decision on transit shall be taken by the Ministry of Justice. Such transit shall be approved unless it would impede or delay surrender. A domestic conviction for a criminal offence not within the jurisdiction of the International Criminal Court shall not prevent transit. The authorisation of transit is not open to appeal.

(6) Paragraphs 1, 2, 3 and 5 shall apply at the request of the International Criminal Court or of a State that has agreed to enforce a sentence passed by the Court for the transit of persons through the territory of the Principality of Liechtenstein on the understanding that the International Criminal Court will be requested to transmit a request for transit together with a copy of the enforceable judgement in the event of an unscheduled landing.

(7) Requests for transit from an International Tribunal or a State which has agreed to enforce a sentence passed by the Tribunal, shall be subject mutatis mutandis to paragraph 1 and to the first and fourth sentences of paragraph 5 above.

RELEVANT ROME STATUTE PROVISIONS

Article 59
Arrest proceedings in the custodial State
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.