PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Eligibility for surrender
43.
Determination of eligibility for surrender—
(1)If a person is brought before a District Court under this Part, the District Court must determine whether the person is eligible for surrender in relation to the international crime or crimes for which surrender is sought.
(2)Subsection (1) applies subject to sections 38 and 45.
(3)The person is eligible for surrender if—
(a)a warrant for the arrest of the person issued by the ICC or a judgment of conviction for an international crime given by the ICC has been produced to the District Court; and
(b)the District Court is satisfied that the person is the person to whom the warrant or judgment relates; and
(c)the District Court is satisfied that the person was arrested in accordance with the proper process as provided in article 59(2)(b) of the Statute; and
(d)the District Court is satisfied that the person's rights were respected as provided in article 59(2)(c) of the Statute.
(4)Neither subsection (3)(c) nor subsection (3)(d) applies unless the person puts the matter at issue.
(5)Despite subsection (3), the person is not eligible for surrender if the person satisfies the District Court that a mandatory restriction on the surrender of the person specified in section 55(1) applies.
(6)Despite subsection (3), in the proceedings under this section,—
(a)the person to whom the proceedings relate is not entitled to adduce, and the District Court is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which the surrender is sought; and
(b)in the case of a person accused of an offence, nothing in this section requires evidence to be produced or given at the hearing to establish, according to the law of New Zealand, that the trial of the person would be justified if the conduct constituting the offence had occurred within the jurisdiction of New Zealand.
Cf 1999 No 55 s 45; Statute, article 59(2)
44.
Adjournment of hearing—
(1)The District Court may adjourn the hearing for such period as it considers reasonable to allow a deficiency or deficiencies to be remedied if—
(a)a document or documents containing a deficiency or deficiencies of relevance to the proceedings are produced; and
(b)the District Court considers the deficiency or deficiencies to be of a minor nature.
(2)Subsection (1) does not limit the circumstances in which the District Court may adjourn a hearing.
45.
Surrender by consent—
(1)A person may at any time notify the District Court that he or she consents to being surrendered to the ICC for the international crime or crimes for which surrender is sought.
(2)The District Court may accept the notification of consent under subsection (1) if—
(a)the person is before the District Court when notification of the consent to surrender is given; and
(b)the person has been legally represented in the proceedings; and
(c)the District Court is satisfied that the person has freely consented to the surrender in full knowledge of its consequences.
(3)Nothing in this section prevents a person, in respect of whom a determination of eligibility for surrender is made by the District Court under section 43, from subsequently notifying the Minister that the person consents to surrender.
(4)To avoid doubt,—
(a)a person arrested under a provisional warrant may consent to surrender before a request for surrender is received, in which case the Minister may make a surrender order as if a request for surrender had been received; and
(b)if paragraph (a) applies, section 38(1)(a) does not apply.
Cf 1999 No 55 s 28; Statute, article 92(3)
46.
Procedure following determination on eligibility or consent to surrender—
(1)This section applies if—
(a)the District Court has determined in accordance with section 43 that a person is eligible for surrender; or
(b)a person has consented to surrender to the ICC in accordance with section 45.
(2)If this section applies, the District Court must—
(a)issue a warrant for the detention of the person in a prison or other place authorised in accordance with section 42 of this Act or section [171(2)] of the Summary Proceedings Act 1957 pending the surrender of the person to the ICC or the person's discharge according to law; and
(b)send to the Minister a copy of the warrant of detention and such report on the case as the court thinks fit; and
(c)inform a person to whom subsection (1)(a) applies that,—
(i)subject to section 70, the person will not be surrendered until the expiration of 15 days after the date of the issue of the warrant; and
(ii)during that time the person has the right to make an application for a writ of habeas corpus; and
(iii)the person has the right to lodge an appeal under section 67; and
(d)inform a person to whom subsection (1) applies that the Minister must determine whether to issue a surrender order before the person can be surrendered to the ICC; and
(e)inform the person that if a surrender order is made and the person is not removed within 2 months, the person may apply to be discharged under section 74.
(3)If the District Court issues a warrant under subsection (2), the District Court may grant bail to the person in accordance with section 39.
(4)If the District Court is not satisfied that the person is eligible for surrender, it must discharge the person, unless under section 69 it orders that the person continue to be detained or issues a warrant for the arrest and detention of the person, pending the determination of an appeal under section 67.
Cf 1999 No 55 s 46
Surrender and temporary surrender
47.
Minister must determine whether person to be surrendered—
(1)If the District Court issues a warrant for the detention of a person under section 46, the Minister must determine whether to order that the person be surrendered.
(2)The Minister must make a surrender order in respect of the person unless—
(a)the Minister is satisfied that surrender of the person must be refused because a mandatory restriction on surrender specified in section 55(1) applies; or
(b)the Minister is satisfied that 1 of the discretionary restrictions on surrender specified in section 55(2) applies and that it is appropriate in the circumstances that surrender be refused; or
(c)the Minister postpones the execution of a request for surrender in accordance with section 56; or
(d)the Minister makes a temporary surrender order under section 49.
(3)The Minister must not make a surrender order in respect of a person until the later of the following times:
(a)until the expiration of 15 days after the date of the issue of the warrant of detention of that person under section 46(2)(a); or
(b)if an appeal, or an application for review or habeas corpus in respect of a determination under this Act, or any appeal from such an appeal or application, is pending, until after the date that the proceedings are finally determined and the result is that the person is eligible to be surrendered.
(4)Nothing in subsection (3) applies to—
(a)a person who has consented to surrender under section 45, whether before the District Court or subsequently by notice to the Minister; or
(b)a person to whom section 43 applies but who has, in accordance with section 70, notified the Minister that he or she has waived—
(i)the right to make an application for a writ of habeas corpus within 15 days after the date of the issue of the warrant; and
(ii)the right, in relation to every international crime for which the District Court has determined that the person is eligible to be surrendered, to lodge an appeal under section 67; or
(c)a person whom the District Court determines is eligible for surrender for 2 or more international crimes and who, under section 70, has waived—
(i)the right to make an application for habeas corpus within 15 days after the date of the issue of the warrant; and
(ii)the right, in relation to only 1 or some of those international crimes, to lodge an appeal under section 67,—
if the ICC withdraws its request for the surrender of the person for the international crime or crimes to which the waiver does not relate.
(5)If the Minister makes a surrender order in respect of a person described in section 4(2), the Minister may arrange for any approvals, authorities, and permissions that may be needed to be obtained before surrender, including the variation, cancellation, or suspension of the sentence, or of any conditions of the sentence.
(6)Subject to section 48, once the Minister has made a surrender order, the Minister must use his or her best endeavours to ensure that the person is delivered up to the ICC without delay in accordance with this Act and any applicable Rules.
Cf 1999 No 55 s 50; Statute, article 59(1) and (7)
48.
Surrender order may take effect at later date—
(1)This section applies if the Minister has determined under section 47 that in all other respects it is appropriate to make a surrender order, but the person is liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against the law of New Zealand.
(2)If this section applies, the Minister may, after consultation with the ICC, instead of making a surrender order that has immediate effect, or a temporary surrender order under section 49, make an order for the surrender of the person that is to come into effect when the person ceases to be liable to be detained.
Cf 1999 No 55 s 32; Statute, article 89(4)
49.
Temporary surrender to ICC—
(1)This section applies if—
(a)the request by the ICC for surrender relates to an international crime of which the person is accused; and
(b)the Minister has determined under section 47 that in all other respects it is appropriate to make a surrender order but the person sought is either—
(i)the subject of proceedings for a different offence against New Zealand law that has not been finally disposed of; or
(ii)liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against the law of New Zealand; and
(c)after consultation by the Minister with the ICC, the ICC requests that the person be surrendered temporarily.
(2)If this section applies, the Minister may make a temporary surrender order in respect of the person.
(3)Before making a temporary surrender order, the Minister may seek undertakings from the ICC relating to 1 or more of the following matters:
(a)the return of the person to New Zealand:
(b)the custody of the person while travelling to and from and while in the ICC's jurisdiction:
(c)such other matters, if any, that the Minister thinks appropriate.
Cf 1999 No 55 s 33(1) and (2); Statute, article 89(4)
Surrender
Surrender - procedures
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