PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Restrictions on surrender
55.
Refusal of surrender—
(1)The Minister must refuse a request by the ICC for the surrender of a person if—
(a)there have been previous proceedings against the person and section 57(4) applies; or
(b)the ICC determines that the case is inadmissible and section 59(3) or section 60(2) applies; or
(c)section 66(3) applies.
(2)The Minister may refuse a request by the ICC for the surrender of a person if—
(a)there are competing requests from the ICC and a State that is not a party to the Statute relating to the same conduct and section 63(4) applies; or
(b)there are competing requests from the ICC and a State that is not a party to the Statute relating to different conduct and section 64(3) applies.
(3)To avoid doubt,—
(a)the only grounds on which surrender to the ICC may be refused are those specified in this section and, if applicable, section 23(2) (which relates to offences involving the administration of justice); and
(b)the restrictions on surrender specified in the Extradition Act 1999 do not apply in relation to a request for surrender from the ICC.
56.
Postponement of execution of request for surrender—
(1)The Minister may postpone the execution of a request for surrender under this Part at any time before the person sought is surrendered if, and only if,—
(a)a ruling on admissibility of the kind specified in section 57(1) or section 59(1) or section 60 is pending before the ICC; or
(b)the request would interfere with an investigation or prosecution for a different offence against New Zealand law, as provided in section 58; or
(c)a request of the kind referred to in section 66(1)(c) is made to the ICC.
(2)Even if a case is one to which subsection (1) applies, the Minister may decide not to postpone the execution of the request; and, in that event, the Minister may take such steps under this Part as may be appropriate in the circumstances, including making a surrender order with immediate effect under section 47 or with effect at a later date under section 48 or a temporary surrender order under section 49.
(3)If the Minister postpones the execution of the request, the postponement may be for a reasonable time and may, if the Minister considers it desirable, be extended from time to time.
(4)A decision by the Minister to postpone the execution of a request—
(a)does not limit or affect—
(i)the District Court's ability to accept notification of consent to the surrender:
(ii)the ability to continue to detain a person under any warrant issued under this Part:
(b)does not affect the validity of any act that has been done or any warrant or order made under this Part before the decision was made.
(5)If no decision on the execution of the request for surrender is made within 6 months after the date of the Minister's decision to postpone the execution of the request, the person may apply to a Judge of the High Court to be discharged.
(6)If an application to be discharged is made under subsection (5), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Minister, unless sufficient cause is shown against the discharge,—
(a)discharge any order made under this Act:
(b)order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.
57.
Previous proceedings against person sought—
(1)This section applies if the person whose surrender is sought alleges that—
(a)the case is one to which article 20(1) of the Statute applies (because it relates to conduct that formed the basis of crimes for which the person has been convicted or acquitted by the ICC); or
(b)the person has been tried by another court for conduct also proscribed under article 6, 7, or 8 of the Statute and the case is not one to which paragraphs (a) and (b) of article 20(3) of the Statute applies.
(2)If this section applies, the Minister must immediately consult with the ICC to determine if there has been a relevant ruling on admissibility under the Statute.
(3)If the ICC has ruled that the case is admissible, surrender cannot be refused on the ground there have been previous proceedings.
(4)If the ICC has ruled that the case is inadmissible under article 20 of the Statute, surrender must be refused on the ground that there have been previous proceedings.
(5)If an admissibility ruling is pending, the Minister may postpone the execution of a request until the ICC has made a determination on admissibility.
Cf Statute, articles 20(1) and (3), 89(2)
58.
Ongoing New Zealand investigation or proceedings involving different conduct—
(1)This section applies if the ICC makes a request for surrender that would interfere with an investigation or proceedings in New Zealand involving different conduct.
(2)If this section applies, the Minister may, after consultation with the ICC,—
(a)proceed with the execution of the request in accordance with section 56(2), despite the New Zealand investigation or proceedings; or
(b)postpone the execution of the request until the New Zealand investigation or proceedings have been finally disposed of.
(3)Nothing in this section limits or affects section 48 which allows the Minister to make a surrender order that comes into force at a later date if a person is serving a sentence for a different offence against New Zealand law.
Cf Statute, article 94
59.
Person being prosecuted in New Zealand for same conduct—
(1)This section applies if—
(a)the ICC makes a request for surrender; and
(b)the request relates to conduct that would constitute an offence under New Zealand law; and
(c)either—
(i)the conduct is being investigated or prosecuted in New Zealand; or
(ii)the conduct had been investigated in New Zealand and a decision was made not to prosecute the person sought, that decision not being due to the unwillingness or genuine inability to prosecute; and
(d)a challenge to the admissibility of the case is being or has been made to the ICC under article 19(2)(b) of the Statute.
(2)If this section applies, the Minister may postpone the execution of the request for surrender until the ICC has made its determination on admissibility.
(3)If the ICC determines that the case is inadmissible, surrender must be refused.
(4)If the ICC determines that the case is admissible and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
Cf Statute, articles 17(1), 19(2)(b), 95
60.
Other challenges to admissibility—
(1)If the ICC is considering an admissibility challenge under article 18 or article 19 of the Statute, other than a challenge of the kind referred to in section 57 or section 59, the Minister may postpone the execution of a request under this Part pending a determination by the ICC.
(2)If the ICC determines that the case is inadmissible, surrender must be refused.
(3)If the ICC determines that the case is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
Cf Statute, article 95
61.
Request from ICC and other State relating to same conduct—
If a request for surrender of a person is received from the ICC and 1 or more States also request the extradition of the person for the same conduct that forms the basis of the crime for which the ICC seeks the person's surrender, the Minister—
(a)must notify the ICC and the requesting State of that fact:
(b)must determine, in accordance with section 62 or section 63, but despite section 99 of the Extradition Act 1999, whether the person is to be surrendered to the ICC or to the requesting State.
Cf Statute, article 90(1)
62.
Procedure where competing request from State Party—
(1)If section 61 applies and the requesting State is a party to the Statute, priority must be given to the request from the ICC if—
(a)the ICC has, under article 18 or article 19 of the Statute, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or
(b)the ICC makes such a determination after receiving notification of the competing request.
(2)If the request is one to which subsection (1)(b) relates, then, pending the ICC's determination,—
(a)the steps required to be taken under the Extradition Act 1999 in relation to a request for extradition may continue to be taken; but
(b)No person may be surrendered under that Act unless and until the ICC makes its decision on admissibility and determines that the case is inadmissible.
Cf Statute, article 90(2)
63.
Procedure where competing request from non-State Party—
(1)If section 61 applies and the requesting State is not a party to the Statute, priority must be given to the request for surrender from the ICC if—
(a)New Zealand is not under an international obligation to extradite the person to the requesting State; and
(b)the ICC has determined under article 18 or article 19 of the Statute that the case is admissible.
(2)If section 61 applies and the requesting State is not a party to the Statute, the request for extradition may continue to be dealt with if—
(a)New Zealand is not under an international obligation to extradite the person to the requesting State; and
(b)the ICC has not yet determined under article 18 and article 19 of the Statute that the case is admissible.
(3)Despite subsection (2), no person may be surrendered under the Extradition Act 1999 unless and until the ICC makes its decision on admissibility and determines that the case is inadmissible.
(4)If section 61 applies, the requesting State is not a party to the Statute, and New Zealand is under an international obligation to extradite the person to the requesting State, the Minister must determine whether to surrender the person to the ICC or extradite the person to the requesting State.
(5)Section 99(1) of the Extradition Act 1999 does not apply to a determination made under subsection (4).
(6)In making the determination under subsection (4), the Minister must consider all the relevant factors including, without limitation,—
(a)the respective dates of the requests; and
(b)the interests of the requesting State, including, if relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and
(c)the possibility of subsequent surrender between the ICC and the requesting State.
Cf Statute, article 90(4)-(6)
64.
Request from ICC and other State relating to different conduct—
(1)If a request for surrender of a person is received from the ICC and a request for the extradition of that person is received from 1 or more States for conduct other than that which constitutes the crime for which the ICC seeks the person's surrender, the Minister must determine whether the person is to be surrendered to the ICC or to the requesting State.
(2)If New Zealand is not under an existing international obligation to extradite the person to the requesting State, priority must be given to the request from the ICC.
(3)If New Zealand is under an existing international obligation to extradite the person to the requesting State, the Minister must determine whether to surrender the person to the ICC or to extradite the person to the requesting State.
(4)In making the determination under subsection (3), the Minister must consider all the relevant factors, including, without limitation, those matters specified in section 63 of this Act and section 99 of the Extradition Act 1999, but must give special consideration to the relative seriousness of the offences for which surrender is sought.
Cf Statute, article 90(7)
65.
Notification of decision on extradition to requesting State—
(1)If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Minister subsequently refuses extradition of the person to the requesting State under the Extradition Act 1999, the Minister must notify the ICC of this decision.
(2)The obligation in this section is in addition to the requirement in section 30 for the Minister to respond formally to the request from the ICC.
Cf Statute, article 90(8)
66.
Conflict with obligations to another State—
(1)This section applies if—
(a)the ICC makes a request for surrender; and
(b)the ICC has not previously made a final determination on whether or not article 98 of the Statute applies to that request; and
(c)a request is made to the ICC to determine whether or not article 98 of the Statute applies to the request for surrender.
(2)If this section applies, the Minister may postpone the request for surrender until the ICC advises whether or not it intends to proceed with the request for surrender.
(3)If the ICC advises that it does not intend to proceed with the request, surrender must be refused.
(4)If the ICC advises that it intends to proceed with the request for surrender, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
Cf Statute, article 98
Appeals against determinations of eligibility for surrender
67.
Appeal on question of law only by way of case stated—
(1)This section applies if a District Court determines under section 43 that a person is or is not eligible for surrender in relation to any crime for which surrender is sought, and either party considers the determination erroneous in point of law.
(2)If this section applies, the party may appeal against the determination to the High Court by way of case stated for the opinion of the High Court on a question of law only.
(3)To lodge an appeal the party must, within 15 days after the determination, file in the office of the court that made the determination a notice of appeal in the prescribed form.
Cf 1999 No 55 s 68
68.
Application to appeal of certain provisions of Summary Proceedings Act 1957 [and Bail Act 2000]—
(1)The following provisions of the Summary Proceedings Act 1957 apply with any necessary modifications to an appeal under this Part as if it were an appeal under Part 4 of that Act against the determination by a District Court of an information or complaint:
(a)section 107(3) to (8) (appeal on question of law only by way of case stated):
(b)section 108 (no appeal on ground of improper admission or rejection of evidence):
(c)section 109 (District Court Judge or Justice may refuse a case if appeal frivolous):
(d)section 110 (certiorari not to be required when appeal upon case stated):
(e)section 111 (case may be sent back for amendment):
(f)section 113 (appeal on point of law may be removed into Court of Appeal):
(g)section 123 (powers of Judge of High Court as to extension of time):
(h)Repealed.
(i)section 129 (abandonment of appeal):
(j)section 130 (presentation of case by party in custody):
(k)section 131 (power of High Court to direct rehearing of information or complaint):
(l)section 133 (dismissal of appeal for non-prosecution):
(m)section 134 (registrar to certify decision on appeal):
(n)section 136 (custody of person after determination of appeal):
(o)section 143 (no Court fees payable on appeal by person sentenced to detention):
(p)section 144 (appeal to Court of Appeal).
(2)Section 47 of the Bail Act 2000 (which relates to the surrender of an appellant released on bail) applies with any necessary modifications to an appeal under this Part as if it were an appeal under Part 4 of the Summary Proceedings Act 1957 against the determination by a District Court of an information or complaint.
Cf 1999 No 55 s 69
69.
Custody pending determination of appeal—
(1)A District Court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal if—
(a)the District Court makes a determination under section 43; and
(b)immediately after the District Court makes the determination, either party informs the District Court that the party intends to appeal against the determination.
(2)Any District Court or the High Court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal if—
(a)a District Court makes a determination under section 43; and
(b)either party files a notice of appeal against the determination.
(3)If a person is detained under an order made under this section or is arrested and detained under a warrant issued under this section, sections 39 to 42 apply to the detention of the person with any necessary modifications as if the appeal proceedings were proceedings under section 43 to determine whether or not the person is eligible for surrender.
Cf 1999 No 55 s 70
70.
Waiver of rights to apply for habeas corpus or to lodge appeal—
Without limiting section 45, a person whose surrender is sought may, by a waiver in the prescribed form, waive the following rights:
(a)the right to make an application for a writ of habeas corpus within 15 days after the issue of a warrant of detention; and
(b)the right, in relation to any international crime or crimes for which the District Court has determined that the person is eligible for surrender, to lodge an appeal under this Part.
Cf 1999 No 55 s 71
71.
Powers of court on appeal—
(1)The High Court must hear and determine the question or questions of law arising on any case transmitted to it, and do 1 or more of the following things:
(a)reverse, confirm, or amend the determination in respect of which the case has been stated:
(b)remit the determination to the District Court for reconsideration together with the opinion of the High Court on the determination:
(c)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard:
(d)make any other order in relation to the determination that it thinks fit.
(2)In hearing and determining the question or questions of law arising on any case transmitted to it, the High Court—
(a)must not have regard to any evidence of a fact or opinion that was not before the District Court when it made the determination appealed against; and
(b)may in the same proceeding hear and determine any application for a writ of habeas corpus made in respect of the detention of the person whose surrender is sought.
Cf 1999 No 55 s 72
72.
Further provisions relating to powers of court on appeal—
(1)If the appeal is against a determination that a person is eligible for surrender, and the High Court reverses the determination in respect of which the case has been stated, the High Court must also either—
(a)discharge the person; or
(b)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard.
(2)If the appeal is against a determination that a person is eligible for surrender in respect of 2 or more international crimes, and the High Court determines that the determination includes an error of law that relates to only 1 or some of those international crimes, the High Court may amend the determination and—
(a)discharge the person in respect of that international crime or those international crimes; or
(b)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard in respect of that international crime or those international crimes.
(3)Despite subsections (1) and (2), if an appeal is against a determination that a person is eligible for surrender, and the High Court determines that there has been an error of law, it may nevertheless decline to reverse or amend the determination in respect of which the case has been stated if it considers that no substantial wrong or miscarriage of justice has occurred and that the determination ought to be upheld.
(4)If the appeal is against a determination that a person is not eligible for surrender, and the High Court determines that the determination includes an error of law, the High Court may—
(a)exercise the powers of a District Court under section 46 as if it were a District Court, although subsection (2)(c) of that section does not apply:
(b)if it remits the determination to the District Court, issue a warrant for the arrest and detention of the person pending the District Court's reconsideration of the determination or rehearing of the proceedings to determine whether the person is eligible for surrender; and section 69(3) applies to any warrant issued under this paragraph as if the warrant were issued under that section.
(5)Subsections (1), (2), and (4) do not limit section 71.
Cf 1999 No 55 s 73
Discharge of person
73.
Discharge of person if Minister declines to order surrender—
If the Minister determines under section 47 that the person is not to be surrendered, the person must be discharged from custody immediately unless the person is subject to any other order for detention.
Cf 1999 No 55 s 35
74.
Discharge of person if not surrendered within 2 months—
(1)This section applies if a person is not surrendered and conveyed out of New Zealand under a surrender order or a temporary surrender order made under this Part within 2 months—
(a)after the date of the issue of the warrant for the detention of the person under section 46 pending surrender, if no appeal or 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; 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, after the date that the proceedings are finally determined; or
(c)if a surrender order is made under section 48, after the date that the order takes effect.
(2)If this section applies, the person may apply to a Judge of the High Court to be discharged.
(3)If an application to be discharged is made under subsection (2), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Minister, unless sufficient cause is shown against the discharge,—
(a)discharge the surrender order or temporary surrender order, as the case may be; and
(b)order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.
Cf 1999 No 55 s 36
75.
Discharge of person if not resurrendered—
(1)If a person has been surrendered under a temporary surrender order made under section 49, nothing in section 74 prevents an order being made under section 51.
(2)Subsection (3) applies if an order is made under section 51 and the person is not surrendered and conveyed out of New Zealand under this Part within 2 months after the date that the person ceases to be liable to be detained under the sentence of imprisonment imposed by a New Zealand court.
(3)If this subsection applies, the person may apply to a Judge of the High Court to be discharged.
(4)If an application to be discharged is made under subsection (3), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Minister, unless sufficient cause is shown against the discharge,—
(a)discharge the surrender order; and
(b)order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.
Cf 1999 No 55 s 37
76.
Discharge of person under this Part does not preclude further proceedings—
To avoid doubt, the discharge of a person under any provision of this Part does not preclude further proceedings under this Act, whether or not they are based on the same conduct, to surrender the person to the ICC.
Cf 1999 No 55 s 38; Statute, article 92(4)
EDIT.