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EXTRADITION (SOUTH AFRICA) REGULATIONS 2001 2001 NO. 52 - SCHEDULE 1
Treaty on Extradition between Australia and the Republic of South Africa
(regulation 4)
TREATY ON EXTRADITION
BETWEEN AUSTRALIA AND THE REPUBLIC OF
SOUTH AFRICA
DESIRING to make more effective the co-operation of the two
countries in the suppression of crime by concluding a treaty on extradition,
HAVE AGREED as follows:
Article 1
Obligation to extradite
Each Contracting
State agrees to extradite to the other, in accordance with the provisions of
this Treaty, any persons who are wanted for prosecution or the imposition or
enforcement of a sentence in the Requesting State for an extraditable offence.
Article 2
Extraditable offences
1. For the purposes of this Treaty,
extraditable offences are offences however described which are punishable
under the laws of both Contracting States by imprisonment for a maximum period
of at least one year or by a more severe penalty. Where the request for
extradition relates to a person convicted of such an offence who is wanted for
the enforcement of a sentence of imprisonment, extradition shall be granted
only if a period of at least six months of such penalty remains to be served.
2. For the purposes of this Article in determining whether an offence is an
offence against the law of both Contracting States
(a) it shall not
matter whether the laws of the Contracting States place the acts or omissions
constituting the offence within the same category of offence or denominate the
offence by the same terminology; and
(b) the totality of the acts or
omissions alleged against the person whose extradition is sought shall be
taken into account and it shall not matter whether, under the laws of the
Contracting States, the constituent elements of the offence differ.
3. Where
extradition of a person is sought for an offence against a law relating to
taxation, customs duties, foreign exchange control or other revenue matter
extradition may not be refused on the ground that the law of the Requested
State does not impose the same kind of tax or duty or does not contain a tax,
duty, customs, or exchange regulation of the same kind as the law of the
Requesting State.
4. Where the offence has been committed outside the
territory of the Requesting State, extradition shall be granted where the law
of the Requested State provides for the punishment of an offence committed
outside its territory in similar circumstances. Where the law of the Requested
State does not so provide the Requested State may, in its discretion, grant
extradition.
5. Extradition may be granted pursuant to the provisions of this
Treaty irrespective of when the offence in relation to which extradition is
sought was committed, provided that:
(a) it was an offence in the Requesting
State at the time of the acts or omissions constituting the offence; and
(b)
the acts or omissions alleged would, if they had taken place in the territory
of the Requested State at the time of the making of the request for
extradition, have constituted an offence against the law in force in that
State.
Article 3
Exceptions to extradition
1. Extradition shall not be
granted in any of the following circumstances:
(a) if the offence for which
extradition is sought is a political offence. Reference to a political offence
shall not include the taking or attempted taking of the life of a Head of
State or a member of that person's family nor an offence against the law
relating to genocide;
(b) if there are substantial grounds for believing that
a request for extradition for an ordinary criminal offence has been made for
the purpose of prosecuting or punishing a person on account of that person's
race, religion, nationality or political opinion or that that person's
position may be prejudiced for any of those reasons;
(c) if the offence for
which extradition is sought is an offence under military law, which is not an
offence under the ordinary criminal law of the Contracting States;
(d) if the
final judgement has been passed in the Requested State or in a third state in
respect of the offence for which the person's extradition is sought;
(e) if a
person whose extradition is sought has, according to the law of either
Contracting State, become immune from prosecution or punishment by reason of
lapse of time; or
(f) if the person, on being extradited to the Requesting
State, would be liable to be tried or sentenced in that State by a court or
tribunal:
(i) that has been specially established for the purpose of trying
the person's case; or
(ii) that is only occasionally, or under exceptional
circumstances, authorised to try persons accused of the offence for which
extradition is sought.
2. Extradition may be refused in any of the following
circumstances:
(a) if the person whose extradition is sought is a national of
the Requested State. Where the Requested State refuses to extradite a national
of that State it shall, if the other State so requests and the laws of the
Requested State allow, submit the case to the competent authorities in order
that proceedings for the prosecution of the person in respect of all or any of
the offences for which extradition has been sought may be taken;
(b) if the
competent authorities of the Requested State have decided to refrain from
prosecuting the person for the offence in respect of which extradition is
sought;
(c) if the offence with which the person sought is accused or
convicted, or any other offence for which that person may be detained or tried
in accordance with this Treaty, carries the death penalty under the law of the
Requesting State unless that State undertakes that the death penalty will not
be imposed or, if imposed, will not be carried out;
(d) if the offence for
which extradition is sought is regarded under the law of the Requested State
as having been committed in whole or in part within that State;
(e) if a
prosecution in respect of the offence for which extradition is sought is
pending in the Requested State against the person whose extradition is sought;
(f) if the offence for which extradition is sought is an offence which carries
a punishment of the kind referred to in Article 7 of the International
Covenant on Civil and Political Rights;
(g) if the Requested State, while
also taking into account the nature of the offence and the interests of the
Requesting State, considers that, in the circumstances of the case, including
the age, health or other personal circumstances of the person whose
extradition is sought, the extradition of that person would be unjust,
oppressive, incompatible with humanitarian considerations or too severe a
punishment; or
(h) if, by reason of the trivial nature of the request, or the
period of time since the person whose extradition is sought is alleged to have
committed the offence or since he or she came to be at large, as the case may
be, or because the accusation against the person accused is not made in good
faith or in the interest of justice, it would be, having regard to all
circumstances, unjust or oppressive to extradite that person.
3. This Article
shall not affect any obligations which have been or shall in future be assumed
by the Contracting States under any multilateral Convention.
Article 4
Postponement of extradition
The Requested State may postpone the extradition
of a person in order to proceed against that person, or so that that person
may serve a sentence, for an offence other than an offence constituted by an
act or omission for which extradition is sought. In such case the Requested
State shall advise the Requesting State accordingly.
Article 5
Extradition
procedure and required documents
1. A request for extradition shall be made
in writing and shall be communicated through the diplomatic channel. All
documents submitted in support of a request for extradition shall be
authenticated in accordance with Article 6.
2. The request for extradition
shall be accompanied:
(a) if the person is accused of an offenceby a
warrant for the arrest or a certified copy of the warrant for the arrest of
the person, a statement of each offence for which extradition is sought, a
statement of the acts or omissions which are alleged against the person in
respect of each offence and, where the request emanates from Australia, a
certificate issued by the authority in charge of the prosecution stating that
the authority has sufficient evidence at its disposal to warrant the
prosecution of the person concerned;
(b) if the person has been convicted of
an offenceby such documents as provide evidence of the conviction and
the sentence imposed, the fact that the sentence is immediately enforceable,
and the extent to which the sentence has not been carried out as well as a
statement of the acts or omissions for which the person has been convicted;
(c) if the person has been convicted of an offence but no sentence has been
imposedby such documents as provide evidence of the conviction and a
statement affirming that it is intended to impose a sentence, as well as a
statement of the acts or omissions for which the person has been convicted;
(d) in all cases by the text of the relevant provision of the law, if any,
creating the offence or a statement of the relevant law as to the offence
including any law relating to the limitation of proceedings, as the case may
be, and in either case, a statement of the punishment that can be imposed for
the offence; and
(e) in all cases by as accurate a description as possible of
the person claimed together with any other information which may help to
establish that person's identity and nationality.
3. To the extent permitted
by the law of the Requested State, extradition may be granted of a person
pursuant to the provisions of this Treaty notwithstanding that the
requirements of paragraph 1 and paragraph 2 of this Article have not been
complied with provided that the person claimed consents to an order for
extradition being made.
4. Any document produced in relation to extradition
proceedings in terms of this Treaty which is not in English shall be
accompanied by a certified translation into English.
5. A document is
certified for the purposes of this Article if it purports to be certified by a
Judge, Magistrate or other officer in or of the Requesting State.
Article 6
Authentication of supporting documents
1. A document that, in accordance with
Article 5, accompanies a request for extradition shall be admitted in
evidence, if authenticated, in any extradition proceedings in the territory of
the Requested State.
2. A document is authenticated for the purposes of this
Treaty if:
(a) it purports to be signed or certified by a Judge, Magistrate
or other officer in or of the Requesting State to be an original document or
to be a true copy or translation thereof as the case may be; and
(b) it
purports to be authenticated by the oath or affirmation of a witness or to be
sealed with an official or public seal of the Requesting State or of a
minister of state, or of a Department or officer of the Government, of the
Requesting State.
Article 7
Additional information
1. If the Requested
State considers that the information furnished in support of a request for
extradition is not sufficient in accordance with this Treaty to enable
extradition to be granted, that State may request that additional information
be furnished within such time as it specifies.
2. If the person whose
extradition is sought is under arrest and the additional information furnished
is not sufficient in accordance with this Treaty or is not received within the
time specified, the person may be released from custody. Such release shall
not preclude the Requesting State from making a fresh request for the
extradition of the person.
3. Where the person is released from custody in
accordance with paragraph 2, the Requested State shall notify the Requesting
State as soon as practicable.
Article 8
Provisional arrest
1. In case of
urgency, a Contracting State may apply by means of the facilities of the
International Criminal Police Organisation (INTERPOL) or otherwise for the
provisional arrest of the person sought pending the presentation of the
request for extradition through the diplomatic channel. The application may be
transmitted by post or telegraph or by any other means affording a record in
writing.
2. The application shall contain a description of the person sought,
a statement that extradition is to be requested through the diplomatic
channel, a statement of the existence of one of the documents mentioned in
paragraph 2 of Article 5 authorising the apprehension of the person, a
statement of the punishment that can be imposed or has been imposed for the
offence and, if requested by the Requested State, a concise statement of the
acts or omissions alleged to constitute the offence.
3. On receipt of such
application the Requested State shall take the necessary steps to secure the
arrest of the person claimed and the Requesting State shall be promptly
notified of the result of its request.
4. A person arrested upon such an
application may be set at liberty upon the expiration of 45 days from the date
of that person's arrest if a request for extradition, supported by the
documents specified in Article 5, has not been received.
5. The release
of a person pursuant to paragraph 4 of this Article shall not prevent the
institution of proceedings with a view to extraditing the person sought if the
request is subsequently received.
Article 9
Conflicting requests
1. Where
requests are received from two or more States for the extradition of the same
person, the Requested State shall determine to which of those States the
person is to be extradited and shall notify the Requesting States of its
decision.
2. In determining to which State a person is to be extradited, the
Requested State shall have regard to all relevant circumstances and, in
particular, to:
(a) if the requests relate to different offencesthe
relative seriousness of the offences;
(b) the time and place of commission of
each offence;
(c) the respective dates of the requests;
(d) the nationality
of the person; and
(e) the ordinary place of residence of the person.
Article 10
Surrender
1. The Requested State shall as soon as a decision on
the request for extradition has been made, communicate that decision to the
Requesting State through the diplomatic channel.
2. Where extradition is
granted, the Requested State shall surrender the person from a point of
departure in its territory convenient to the Requesting State.
3. The
Requesting State shall remove the person from the territory of the Requested
State within such reasonable period as the Requested State specifies and, if
the person is not removed within that period, the Requested State may refuse
to extradite that person for the same offence.
4. If circumstances beyond its
control prevent a Contracting State from surrendering or removing the person
to be extradited, it shall notify the other Contracting State. The two
Contracting States shall mutually decide upon a new date of surrender, and the
provisions of paragraph 3 of this Article shall apply.
Article 11
Surrender
of property
1. To the extent permitted under the law of the Requested State
and subject to the rights of third parties, which shall be duly respected, all
property found in the Requested State that has been acquired as a result of
the offence or may be required as evidence shall, if the Requesting State so
requests, be surrendered if extradition is granted.
2. Subject to paragraph 1
of this Article, the above-mentioned property shall, if the Requesting State
so requests, be surrendered to the Requesting State even if the extradition
cannot be carried out.
3. Where the law of the Requested State or the rights
of third parties so require, any articles so surrendered shall be returned to
the Requested State free of charge if that State so requests.
Article 12
Rule of speciality
1. Subject to paragraph 3 of this Article, a person
extradited under this Treaty shall not be detained or tried, or be subjected
to any other restriction of their personal liberty, in the territory of the
Requesting State for any offence committed before that person's extradition
other than:
(a) an offence for which extradition was granted or any other
extraditable offence of which the person could be convicted upon proof of the
facts upon which the request for extradition was based, provided that that
offence does not carry a penalty which is more severe than that which could be
imposed for the offence for which extradition was sought; or
(b) any other
extraditable offence in respect of which the Requested State consents.
2. A
request for the consent of the Requested State under this Article shall be
accompanied by the documents mentioned in Article 5.
3. Paragraph 1 of this
Article does not apply if the person has had an opportunity to leave the
Requesting State and has not done so within 45 days of final discharge in
respect of the offence for which that person was extradited or if the person
has returned to the territory of the Requesting State after leaving it.
Article 13
Surrender to a third State
1. Where a person has been surrendered
to the Requesting State by the Requested State, the first-mentioned State
shall not surrender that person to any third state for an offence committed
before that person's surrender unless:
(a) the Requested State consents to
that surrender; or
(b) the person has had an opportunity to leave the
Requesting State and has not done so within 45 days of final discharge in
respect of the offence for which that person was surrendered by the Requested
State or has returned to the territory of the Requesting State after leaving
it.
2. Before acceding to a request pursuant to sub-paragraph (1)(a) of this
Article, the Requested State may request the production of the documents
mentioned in Article 5.
Article 14
Transit
1. Where a person is to be
extradited to a Contracting State from a third state through the territory of
the other Contracting State, the Contracting State to which the person is to
be extradited shall request the other Contracting State to permit the transit
of that person through its territory.
2. Upon receipt of such a request the
Requested Contracting State shall grant the request unless it is satisfied
that there are reasonable grounds for refusing to do so.
3. Permission for
the transit of a person shall, subject to the law of the Requested Contracting
State, include permission for the person to be held in custody during transit.
4. Where a person is being held in custody pursuant to paragraph 3 of this
Article, the Contracting State in whose territory the person is being held may
direct that the person be released if transportation is not continued within a
reasonable time.
5. The Contracting State to which the person is being
extradited shall reimburse the other Contracting State for any expense
incurred by that other Contracting State in connection with the transit.
Article 15
Expenses
1. The Requested State shall make all necessary
arrangements for and meet the cost of any proceedings arising out of a request
for extradition and shall otherwise represent the interest of the Requesting
State.
2. The Requested State shall bear the expenses incurred in its
territory in the arrest and detention of the person whose extradition is
sought until that person is surrendered to a person nominated by the
Requesting State.
3. The Requesting State shall bear the expenses incurred in
conveying the person from the territory of the Requested State.
Article 16
Entry into force, application and termination
1. This Treaty shall enter into
force thirty days after the date on which the Contracting States have notified
each other in writing that their respective requirements for the entry into
force of this Treaty have been complied with.
2. Either Contracting State may
terminate this Treaty by notice in writing at any time and it shall cease to
be in force on the one hundred and eightieth day after the day on which notice
is given.
3. This Treaty shall apply to requests for extradition made after
its entry into force regardless of the date of commission of an offence, the
date of conviction for an offence or the date on which a sentence was imposed
for an offence set out in a request.
IN WITNESS WHEREOF the undersigned,
being duly authorized thereto by their respective Governments, have signed
this Treaty.
DONE at Canberra on the ninth day of December, One thousand,
nine hundred and ninety-eight.
FOR AUSTRALIA: FOR THE REPUBLIC OF
SOUTH AFRICA:
Amanda Vanstone A. Erwin
1. Notified in the Commonwealth of Australia Gazette on 29 March 2001.