Part 3
Requests by International Criminal Court for Arrest and Surrender of Persons
15.—
In this Part—
“appeal proceedings” means proceedings relating to—
(a) a complaint under Article 40.4.2° of the Constitution (including any proceedings on appeal from a decision on the complaint), or
(b) an appeal on a point of law to the Supreme Court against a surrender order or an appeal to that Court against a refusal of such an order;
“provisional arrest warrant” means a warrant issued under section 22(1);
“state of enforcement” means a state (other than the State) which is designated by the International Criminal Court under Article 103(1) from a list of states which have indicated to the Court their willingness to accept persons sentenced by it.
16.—
Where—
(a) a person whose surrender has been requested by the International Criminal Court for an offence within its jurisdiction is in custody under this Part, and
(b) the person is also in custody for another offence,
his or her release under this Part shall not affect his or her custody for that other offence.
17.—
(1) A request by the International Criminal Court for the arrest and surrender of a person shall be communicated to the Minister in accordance with Articles 87, 89 and 91.
(2) The request shall be accompanied by—
(a) as accurate a description as possible of the person whose surrender is requested, together with any other information that will help to establish the person’s identity and probable location,
(b) a brief statement of the facts of the case and their legal characterisation,
(c) the original or a certified copy of the warrant of arrest, and
(d) if the request relates to a person who has been convicted by the Court—
(i) the original or a certified copy of any previous warrant of arrest,
(ii) the original or a certified copy of the judgment of conviction,
(iii) information establishing that the person sought is the person referred to in the judgment, and
(iv) the original or a certified copy of any sentence imposed and, in the case of a sentence of imprisonment, a statement of any period already served and the period remaining to be served.
(3) If the information furnished by the Court is in the Minister’s opinion insufficient, the Minister may request it to supply further information or documents.
(4) The Minister shall consult with the Court under Article 97 in relation to any difficulties that may impede or prevent the execution of a request.
(5) The Minister may act on a request or supporting document which otherwise complies with this section notwithstanding that it was received by him or her before the passing of this Act.
(6) An amended warrant of arrest shall be treated as if it were a new warrant, without prejudice to the validity of anything done under the old warrant.
18.—
(1) In this section “surrender proceedings” means proceedings before the High Court for the surrender of a person to another state following receipt of—
(a) a request under the Extradition Acts for his or her extradition to another state, or
(b) a European arrest warrant (within the meaning of the European Arrest Warrant Act 2003) in respect of the person.
(2) Where the Minister receives a request from the International Criminal Court for the arrest and surrender of a person under Article
89 and—
(a) surrender proceedings in respect of the person have been instituted but have not been determined, or
(b) the person is awaiting surrender to another state under the Extradition Acts or the European Arrest Warrant Act 2003,
then, pending a decision by the Minister in accordance with Article 90 on whether priority should be given to the request—
(i) the Minister shall notify the High Court of the request, and, on receipt of the notification, the Court may adjourn the proceedings for such period or periods as it thinks fit and remand the person in custody or, subject to section 26(2), on bail, or
(ii) as the case may be, the person shall not be so surrendered.
(3) If the Minister decides in accordance with Article 90 that priority should be given to the request from the International Criminal Court and—
(a) the surrender proceedings have been so adjourned, the Minister shall cause the High Court to be notified of his or her decision, and, on receipt of the notification, the Court may order that the proceedings be discontinued and that the person concerned be brought before it to be dealt with in accordance with section 25, or
(b) the person is awaiting surrender to another state, the person shall not be so surrendered, and sections 19, 20, 23 and 25 shall have effect in relation to the case.
(4) If, having consulted the International Criminal Court, the Minister decides in accordance with Article 90 that priority should not be given to the Court’s request—
(a) the Minister shall cause the High Court to be notified accordingly, or
(b) if the person is awaiting surrender to another state, subsection (2) (ii) shall cease to have effect in relation to the person concerned.
(5) A discontinuance of surrender proceedings under subsection (3) (a) in respect of an offence is not a bar to instituting fresh such proceedings for it.
(6) This section has effect notwithstanding anything in the Extradition Acts and is without prejudice to
section 30(3) of the European Arrest Warrant Act 2003.
19.—
(1) On receiving a request from the International Criminal Court for the arrest and surrender of a person the Minister shall, subject to this Part, certify that the request has been duly made.
(2) The Minister—
(a) may postpone action on the request until—
(i) the Court has determined any challenge to the admissibility of the case or to its jurisdiction (whether or not the challenge is a challenge by the Minister under Article 19(2)(b) to the admissibility of the case on the ground that it is being, or has been, investigated), or
(ii) the completion of any consultation between the Minister and the Court under Article 97 in relation to any difficulties that may impede or prevent the execution of the request,
and
(b) may, where the person concerned is being investigated or proceeded against in relation to an offence that is not an ICC offence, postpone such action in accordance with Article 94.1.
(3) In deciding under subsection (2) (b) whether to postpone action on a request the Minister shall have regard to the seriousness of the offence referred to in that subsection.
(4) If the Minister decides under subsection (2) (b) not to postpone action on a request, any proceedings referred to in that subsection that are pending shall, on the application of the Director of Public Prosecutions, be withdrawn, with liberty to re-enter.
(5) The Minister, if he or she decides to grant a request for the surrender of a person who is being proceeded against or is serving a sentence for an offence that is not an ICC offence, shall consult the Court in accordance with Article 89.4.
(6) The Minister shall not take action on a request if informed by the Court that it has determined that the case is inadmissible or that it is not proceeding further with the request for any other reason.
(7) In subsection (2) (b) “proceedings” does not include proceedings against a person under the Extradition Acts or the European Arrest Warrant Act 2003.
20.—
(1) On production to the High Court of—
(a) a certificate by the Minister under section 19 that a request has been duly made by the International Criminal Court for the arrest and surrender of a person, and
(b) copies of the request and of the accompanying documents and any other related documents,
the Court shall issue a warrant for the person’s arrest, addressed to the Commissioner of the Garda Síochána.
(2) A document purporting to be—
(a) a certificate referred to in subsection (1) (a), or
(b) a copy of any document referred to in subsection (1) (b),
is admissible, without further proof, as evidence of the matters mentioned in it.
(3) The Court shall cause the Minister to be notified forthwith of the issue of the warrant.
21.—
(1) This section applies where the Minister receives from the International Criminal Court a request, made in accordance with Article 92, for the provisional arrest of a person.
(2) If, where this section applies, it appears to the Minister that application should be made for a warrant for the person’s provisional arrest, the Minister shall communicate the request to the Commissioner of the Garda Síochána, and the Commissioner shall cause such an application to be made to the High Court under section 22.
22.—
(1) The High Court may issue a warrant (in this Part referred to as a “provisional arrest warrant”) for the arrest of a person on the sworn information of a member of the Garda Síochána not below the rank of inspector that he or she has reason to believe—
(a) that the International Criminal Court has made a request under Article 92 for the provisional arrest of the person on grounds of urgency,
(b) that the person is in, or on the way to, the State,
(c) that the person—
(i) is accused or suspected by that Court of having committed an ICC offence or an offence under section 11(1)(a), or
(ii) has been convicted by it of such an offence, and
(d) that a request for the arrest and surrender of the person will be duly made.
(2) The Court shall cause the Minister to be informed forthwith of the issue of the warrant.
(3) Where, at any time before the execution of the warrant, it appears to the Minister that a request for the surrender of the person named in it will not be received from the International Criminal Court or that proceedings will not be instituted by it against the person, the Minister may by order cancel the warrant and shall forthwith cause the High Court to be notified accordingly.
(4) A provisional arrest warrant may be issued in respect of a person notwithstanding the previous
issue or refusal of a warrant for the person’s arrest under this Part.
23.—
(1) A member of the Garda Síochána may execute a warrant issued under section 20 or 22 even if the warrant is not in the member’s possession.
(2) The member executing the warrant shall show the warrant to the arrested person and give him or her a copy of it—
(a) at the time of the arrest, or
(b) if the warrant or copy is not then in the member’s possession, within 24 hours after the arrest.
(3) For the purpose of arresting a person under the warrant the member may enter (by force, if necessary) and search any place where the person is or where the member, with reasonable cause, suspects the person to be.
(4) The arrested person shall be brought before the High Court as soon as possible and be provided, where necessary, with a competent interpreter.
(5) The Court shall order that legal aid be provided for the arrested person if it appears to it that the person’s means are insufficient to enable him or her to obtain such aid.
(6) On the making of such an order the arrested person shall be entitled to free legal aid in the proceedings and for that purpose section 3 of the Criminal Justice (Legal Aid) Act 1962 shall apply, with the necessary modifications, in relation to the person as if he or she had been granted a legal aid (trial on indictment) certificate under that section.
24.—
(1) Subject to subsection (2), where—
(a) a person arrested under a provisional arrest warrant is brought before the High Court, and
(b) a certificate under section 19 in respect of the person is not produced to it,
the Court shall remand the person in custody or, subject to section 26(2), on bail until the certificate is produced.
(2) Where a certificate under section 19 is not produced to the Court within such period from the date of the provisional arrest as is specified for the time being in the Rules of Procedure and Evidence for the receipt by a requested state of a request for surrender, the person, if in custody, shall be released.
25.—
(1) (a) Subject to subsection (2), on application by or on behalf of the Minister for the surrender of a person arrested under section 23, the High Court may, if satisfied that the arrested person is the person named or described in the warrant of arrest and surrender issued by the International Criminal Court, make an order (in this Part referred to as a “surrender order”) for the surrender of the person either—
(i) into the custody of that Court, or
(ii) if that Court so directs in the case of a person convicted by it, into the custody of the state of enforcement,
in accordance with arrangements to be made by the Minister.
(b) Where the application relates to a person arrested under a provisional arrest warrant, copies of the request by the International Criminal Court for his or her surrender and of the accompanying documents and any other related documents, together with a certificate by the Minister under section 19 that the request has been duly made, shall be produced to the High Court.
(c) In accordance with paragraph 4, second sentence, of Article 59 the High Court may not consider whether the warrant of arrest was properly issued in accordance with paragraphs 1(a) and 1(b) of Article 58.
(2) (a) The High Court shall adjourn the proceedings pending the outcome of—
(i) any challenge before the International Criminal Court to the admissibility of a case on grounds referred to in Article 17 or 89(2) or to that Court’s jurisdiction in the case, or
(ii) a challenge to admissibility made before the High Court on the basis of the principle of ne bis in idem, as provided for in Article 89(2),
and remand the arrested person in custody or, subject to section 26(2), on bail.
(b) The High Court shall cause the Minister to be informed of any challenge mentioned in paragraph (a) (ii).
(c) On being so informed, the Minister shall consult the International Criminal Court and then inform the High Court either—
(i) that there is an existing ruling of the International Criminal Court in relation to the admissibility of the case, or
(ii) that that Court is considering the challenge.
(3) The High Court, whether or not it makes a surrender order, may, and on the application of the arrested person shall—
(a) determine—
(i) whether section 23(2) was complied with in relation to the execution of the warrant of arrest, and
(ii) whether any other rights of the person in relation to the arrest have been respected,
(b) make a declaration to that effect, and
(c) notify the Minister accordingly,
and the Minister shall transmit a copy of the notification to the Inter¬national Criminal Court.
(4) On making a surrender order the High Court shall—
(a) inform the arrested person that he or she will not be surrendered, except with his or her consent, before 15 days have elapsed from the date of the order,
(b) also inform the person of the provisions of Article 40.4.2° of the Constitution (which relates to the making of a complaint to the High Court by or on behalf of a person alleging that he or she is unlawfully detained), and
(c) cause a copy of the order to be sent forthwith to the Minister.
(5) A surrender order shall provide for the committal of the arrested person to a prison or, if the person is not more than 21 years of age, to a remand institution (within the meaning of the Criminal Justice Act 1960) while awaiting the surrender.
(6) An appeal shall lie to the Supreme Court against a surrender order only on a point of law.
(7) (a) If an appeal is to be brought against a refusal of the High Court to make a surrender order and the Court is so informed without delay, the Court shall remand the arrested person in custody or, subject to section 26(2), on bail, until the appeal has been finally determined.
(b) If not so informed, the Court shall order that the arrested person be released.
(8) Sections 10 and 11 (transfer and lawful custody of remanded persons) of the Criminal Justice Act 1960 apply to a person committed or remanded to a remand institution under this section.
26.—
(1) In relation to a person who is before it under this Part the High Court may, subject to subsection
(2), exercise its powers of adjournment and remand, including, but not limited to, the powers it has in that respect in relation to a person sent forward to the Central Criminal Court for trial.
(2) (a) The High Court—
(i) shall cause any application for bail by such a person brought before it to be notified to the Pre-Trial Chamber and the Minister, and
(ii) shall, in reaching a decision on the application—
(I) have regard to the principles set out in paragraph 4, first sentence, of Article 59, and
(II) give full consideration to any recommendations made by the Chamber in relation to the application.
(b) If bail is granted, the Minister shall provide any periodic reports requested by the Chamber under Article 59.6.
(c) Bail may not be granted under this subsection to a person who is serving a sentence of imprisonment or detention.
27.—
Subject to section 29, a person who has been committed under a surrender order shall not be surrendered to the International Criminal Court before—
(a) 15 days have elapsed since the date of the order, or
(b) proceedings (including any appeal proceedings) in connection with the request for arrest and surrender have been finally determined,
whichever is the later.
28.—
(1) The Minister may order that a person committed under a surrender order be removed to a hospital or other place if of opinion that it is necessary to do so in the interests of the person’s health.
(2) A person so removed shall continue to be in lawful custody while in the hospital or other place.
29.—
(1) A person arrested in accordance with a warrant issued under section 20 or 22 may consent to be surrendered to the custody of the International Criminal Court or, in the case of a person convicted by it, of the state of enforcement.
(2) The person shall give notice of intention to consent to surrender—
(a) if in custody, to the prison governor, member of the Garda Síochána or other person in whose custody the person is, and
(b) if on bail, to any member of the Garda Síochána.
(3) The consent must be given and recorded before the High Court and be given voluntarily and in full awareness of the consequences.
(4) Where, by reason of a physical or mental condition, it is inappropriate for the person to consent to being surrendered, the consent may be given by a person who is deemed appropriate for that purpose by the High Court.
(5) On the recording of consent to surrender the High Court shall—
(a) if a surrender order has not been made in relation to the person, make a surrender order, and
(b) if such an order has been made, order that the person be returned to custody to await his or her surrender.
(6) (a) A person who has consented to surrender in accordance with this section may, at any time up to the making of an order by the Minister under section 30, withdraw the consent.
(b) On such withdrawal the person—
(i) if the surrender order was made after the consent was given, shall be brought before the High Court and be dealt with by that Court as if he or she had not so consented, or
(ii) in any other case, shall await surrender in accordance with this Part.
(7) The person who receives notice of intention to consent to surrender or is informed of the withdrawal of the consent shall forthwith notify the Minister accordingly.
30.—
(1) Subject to this Part, the Minister may by order direct that a person who has been committed under a surrender order shall be surrendered to the custody of another person who in the Minister’s opinion has been duly authorised in that behalf by the International Criminal Court or the state of enforcement, as the case may be, and the person shall be surrendered accordingly.
(2) The authorised person shall receive, hold in custody and convey out of the State the person so surrendered.
(3) A person who escapes from the custody of the authorised person shall be liable to be retaken in the same manner as any person who escapes from lawful custody.
31.—
(1) The Minister may postpone the making of an order under section 30—
(a) until the International Criminal Court has determined any challenge to the admissibility of the case or to its jurisdiction, or
(b) in consultation with the Court, where the person concerned is being investigated or proceeded against in relation to an offence that is not an ICC offence, until the conclusion or discontinuance of the investigation or proceedings.
(2) If the Minister decides under subsection (1) (b) not to postpone the making of the order, any proceedings referred to in that subsection that are pending shall, on the application of the Director of Public Prosecutions, be withdrawn, with liberty to re-enter.
(3) In deciding whether to postpone surrender under subsection (1) (b) the Minister shall have regard to the seriousness of the conduct constituting the offence referred to in that subsection.
(4) (a) This subsection applies on the expiration of a period of postponement mentioned in subsection (1).
(b) The Minister—
(i) if the postponement arises under subsection (1)(a) and the Court has determined that the case is inadmissible or not within its jurisdiction, shall order that the person, if in custody, be released, or
(ii) in any other case, shall, subject to this Part, make an order under section 30 in respect of the person concerned.
(5) In subsection (1) (b) “proceedings” does not include proceedings against a person under the Extradition Acts or the European Arrest Warrant Act 2003.
32.—
Without prejudice to sections 31(4) (b) (i) and 35(2), the Minister may, after consultation with the International Criminal Court, order the release from custody of a person who has been committed under a surrender order if of opinion—
(a) that, in the light of information received after the making of the surrender order, the surrender is prohibited by this Act, or
(b) that the request for the surrender is not being proceeded with.
33.—
(1) This section applies where a person awaiting surrender under this Part is not surrendered and conveyed out of the State within one month after—
(a) the making of the surrender order,
(b) the conclusion of any appeal proceedings, or
(c) the expiration of any period of postponement mentioned in section 31(1),
whichever is the later.
(2) Where this section applies but subject to subsection (3), the High Court may, on application by or on behalf of the person concerned and on notice to the Minister, order that the person be released from custody.
(3) If the Court is satisfied—
(a) that the person’s state of health or other circumstances beyond the control of the Minister or the International Criminal Court or, as the case may be, the state of enforcement have prevented the person from being surrendered under this Part, and
(b) that it is likely that within a reasonable time those circumstances will no longer apply,
it may fix a period within which the person may be so surrendered, and the person shall be released if not surrendered within that period or any extension thereof which may be directed by the Court from time to time in accordance with this section.
(4) Subsection (2) is without prejudice to section 35(2).
34.—
The cancellation under section 22(3) of a warrant for the provisional arrest of a person or the release of a person under section 24(2), 32 or 33(2) is not a bar to the person’s arrest or surrender in accordance with any subsequent request from the International Criminal Court.
35.—
(1) This section applies to a person who is subject to a surrender order and is also liable to serve, or is serving, a sentence of imprisonment or detention.
(2) A person to whom this section applies shall continue to be liable to serve, or continue to serve, the sentence.
(3) The surrender order may provide—
(a) for the person’s return to the State in accordance with arrangements made by the Minister with the International Criminal Court or, as the case may be, with the state of enforcement, and
(b) for his or her transfer in custody from the state of enforcement to the place of imprisonment or detention.
(4) A period in custody arising from the request for surrender, except any period in the custody of the International Criminal Court or state of enforcement under a sentence of detention imposed by the Court, shall be reckoned as a period served under the sentence of imprisonment or detention.
(5) If a sentence of imprisonment or detention expires while the sentenced person is being detained by or on the order of the International Criminal Court, the Minister shall notify the Court accordingly.
Surrender
Surrender - procedures
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