PART IV
ARREST AND SURRENDER OF PERSON TO ICC
Eligibility for Surrender
43. (1) If a person is brought before a Court under this Part, the Court shall determine whether the person is eligible for surrender in relation to the international crime 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 Court;
(b) the Court is satisfied that the person is the person to whom the warrant or judgment relates;
(c) the 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 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) Notwithstanding subsection (3), the person is not eligible for surrender if he satisfies the Court that a mandatory restriction on the surrender of the person specified in section 55(1), applies.
(6) Notwithstanding subsection (3), in the proceedings under this section—
(a) the person to whom the proceedings relate is not entitled to adduce, and the 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 Trinidad and Tobago, that the trial of the person would be justified if the conduct constituting the offence had occurred within the jurisdiction of Trinidad and Tobago.
44. (1) The Court may adjourn the hearing for such period as it considers reasonable to allow a deficiency to be remedied if—
(a) a document containing a deficiency or deficiencies of relevance to the proceedings are produced; and
(b) the Court considers the deficiency to be of a minor nature.
(2) Subsection (1) does not limit the circumstances in which the Court may adjourn a hearing.
Surrender by consent 45. (1) A person may at any time notify the Court that he consents to being surrendered to the ICC for the international crime for which surrender is sought.
(2) The High Court may accept the notification of consent under subsection (1), if—
(a) the person is before the Court when notification of the consent to surrender is given;
(b) the person has been legally represented in the proceedings; and
(c) the 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 Court under section 43, from subsequently notifying the Attorney General that the person consented 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 Attorney General may make a sur¬render order as if a request for surren
der had been received; and
(b) if paragraph (a) applies, section 38(1)(a) does not apply.
46. (1) This section applies if—
(a) the 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 Court shall—
(a) issue a warrant for the detention of the person in a prison or other place authorized in accordance with section 42 of this Act, pending the surrender of the per¬son to the ICC or the person’s discharge according to law;
(b) send to the Minister a copy of the warrant of detention and such report on the case as the court thinks fit;
(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 fifteen days after the date of the issue of the warrant;
(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 Attorney General is required to 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 he is not removed within two months, he may apply to be discharged under section 74.
(3) If the Court issues a warrant under subsection (2), the Court may grant bail to the person in accordance with section 39.
(4) If the Court is not satisfied that the person is eligible for surrender, it shall 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.
Surrender and Temporary Surrender
47. (1) If the Court issues a warrant for the detention of a person under section 46, the Attorney General shall determine whether to order that the person be surrendered.
(2) The Attorney General shall make a surrender order in respect of the person unless—
(a) he is satisfied that surrender of the person must be refused because a mandatory restriction on surrender specified in section 55(1) applies;
(b) he is satisfied that one of the discretionary restrictions on surrender specified in section 55(2) applies and that it is appropriate in the circumstances that surrender be refused;
(c) he 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 Attorney General must not make a surrender order in respect of a person until the later of the following times:
(a) until the expiration of fifteen 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 pend¬ing, until after the date that the proceed¬ings 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 Court or subsequently by notice to the Attorney General; or
(b) a person to whom section 43 applies but who has, in accordance with section 70, notified the Minister that he has waived—
(i) the right to make an application for a writ of habeas corpus within fifteen days after the date of the issue of the warrant; and
(ii) the right, in relation to every international crime for which the Court has determined that the person is eligible to be surrendered, to lodge an appeal under section 67; or
(c) a person whom the Court determines is eligible for surrender for two or more international crimes and who, under section 70, has waived—
(i) the right to make an application for habeas corpus within fifteen days after the date of the issue of the warrant; and
(ii) the right, in relation to only one 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 to which the waiver does not relate.
(5) If the Attorney General makes a surrender order in respect of a person described in section 47(2), the Attorney General 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 Attorney General has made a surrender order, he must use his best endeavours to ensure that the person is delivered to the ICC without delay in accordance with this Act and any applicable Rules.
48. (1) This section applies if the Attorney General 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 Trinidad and Tobago.
(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.
49. (1) This section applies if—
(a) the request by the ICC for surrender relates to an international crime of which the person is accused;
(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 Trinidad and Tobago law that has not been finally disposed of; or
(ii) liable to be detained in a prison because of a sentence of imprison¬ment imposed for a different offence against the law of Trinidad and Tobago; and
(c) after consultation by the Attorney General 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 Attorney General may seek undertakings from the ICC relating to one or more of the following matters:
(a) the return of the person to Trinidad and Tobago;
(b) the custody of the person while travelling to and from and while in, the ICC’s jurisdiction; and
(c) such other matters, if any, that the Attorney General thinks appropriate.
50. (1) The Attorney General shall review whether it is appropriate for a person who has been surrendered to the ICC under a temporary surrender order to be returned to Trinidad and Tobago in accordance with undertakings received from the ICC if the person is convicted by the ICC of an international crime and sentenced to imprisonment.
(2) The Attorney General may determine that he no longer requires the undertaking relating to return, to be complied with and if so, shall inform the ICC without delay.
51. (1) The Attorney General may make a surrender order in relation to a person who was surrendered to the ICC under a temporary surrender order if—
(a) the person has been convicted by the ICC of an international crime and sentenced to imprisonment;
(b) the person is returned to Trinidad and Tobago in order for the Trinidad and Tobago proceedings or sentence to be completed; and
(c) the ICC makes a request at any time before the person is no longer the subject of Trinidad and Tobago proceedings or ceases to be liable to be detained in a Trinidad and Tobago prison, that, when he is no longer the subject of proceedings or ceases to be so liable, the person be surrendered to serve the sentence imposed by the ICC.
(2) Before making an order under subsection (1), the Attorney General shall determine in accordance with section 47(2), that the person is to be surrendered.
(3) If a surrender order is made under this section, the order takes effect on the same day that the person ceases to be subject to the Trinidad and Tobago proceedings or ceases to be liable to be detained in a Trinidad and Tobago prison.
52. (1) If a person who is subject to a sentence of imprisonment is released from a Trinidad and Tobago prison under a surrender order made under section 47 or a temporary surrender order made under section 49, the person is to be treated, while in custody in connec¬tion with the request or the crime to which the request related, as the case may be including custody outside Trinidad and Tobago, as being in custody for the purposes of the Trinidad and Tobago sentence, which continues to run. Trinidad and Tobago sentence continues to run
(2) If, while a person is within the jurisdiction of the ICC under a temporary surrender order or surrender order, the person ceases to be liable to be detained in a Trinidad and Tobago prison, the Attorney General shall inform the ICC that any undertakings relating to custody referred to in section 49(3)(a) and section 49(3)(b), no longer need to be complied with.
(3) Nothing in this section affects the ICC’s power to direct that any sentence of imprisonment that it imposes is to be cumulative on a sentence imposed under Trinidad and Tobago law.
53. A surrender order made under section 47 or a temporary surrender order made under section 49 must be in the prescribed form, if any, and shall—
(a) specify all the international crimes in relation to which the person is being surrendered; Form and execution of surrender order or temporary surrender order
(b) either—
(i) require the person in whose cus¬tody the person to be surrendered is being held, if the person is being held in custody to release the per¬son to be surrendered into the cus¬tody of a member of the police serv¬ice, or a prison officer; or
(ii) if the person to be surrendered is on bail, authorize any member of the police to take the person into custody;
(c) authorize the police officer, or prison officer, as the case may be, to transport the person in custody and, if necessary or convenient, to detain the person in custody, for the purpose of enabling him to be placed in the custody of a person who is, in the opinion of the Attorney General, duly authorized to receive the person to be surrendered in the name of and on behalf of the ICC; and
(d) authorize the duly authorized person referred to in paragraph (c) to take the person to be surrendered into custody and transport him out of Trinidad and Tobago as soon as practicable to the ICC to be dealt with according to law.
54. (1) If a request for surrender relates to a convicted person who has escaped from custody and the ICC directs, under article 111 of the Statute, that the person be delivered to the State in which he or she was serving the sentence or to any other State designated by the ICC, the Attorney General shall arrange for the person to be delivered to the State specified in the direction.
(2) In any case in which subsection (1) applies, the surrender order may specify that the person be surrendered into the custody of duly authorized representatives of the State specified in the direction.
EDIT.