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1990 No. 135 EXTRADITION (SWISS CONFEDERATION) REGULATIONS - SCHEDULE

                               SCHEDULE                           Regulation
5
TREATY BETWEEN AUSTRALIA AND SWITZERLAND ON
EXTRADITION Australia and the Swiss Confederation, DESIRING to provide for
more effective co-operation between the two States in the repression of crime
and to facilitate the relations between the two States in the area of
extradition, HAVE AGREED as follows:
ARTICLE 1
Obligation to Extradite Each Contracting Party agrees to extradite to the
other, in accordance with the provisions of this Treaty, any person who is
wanted for prosecution, sentencing or the carrying out of a sentence or
detention order in the Requesting State, for an extraditable offence.
ARTICLE 2
Extraditable Offences 1. For the purposes of this Treaty, extraditable
offences are offences which are punishable under the laws of both Contracting
Parties by imprisonment or other deprivation of liberty 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 or other deprivation of liberty,
extradition shall be granted only if a period of at least six months
imprisonment or other deprivation of liberty remains to be served. 2. To the
extent permitted under the law of the Requested State, where a person is to be
extradited for an extraditable offence, extradition may also be granted in
respect of offences which are punishable under the laws of both Contracting
Parties by imprisonment or other deprivation of liberty for a period of less
than one year or by a less severe penalty. 3. For the purpose of this Article
in determining whether an offence is an offence against the law of both
Contracting Parties:

   (a)  it shall not matter whether the laws of the Contracting Parties place
        the acts or omissions constituting the offence within the same
        category of offence or denominate the offence by the same terminology;

   (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 Parties, the
        constituent elements of the offence differ. 4. Extradition shall be
        granted pursuant to the provisions of this Treaty irrespective of when
        the offence for which extradition is requested 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. 5. If the offence for which extradition is
        requested has been committed outside the territory of the Requesting
        State extradition shall be granted, subject to the provisions of this
        Treaty, if the person whose extradition is requested is a national of
        the Requesting State. If the person whose extradition is requested in
        respect of such an offence is not a national of the Requesting State
        the Requested State may, in its discretion, grant extradition.
ARTICLE 3
Exceptions to Extradition 1. Extradition shall not be granted in any of the
following circumstances, if:

   (a)  the offence for which extradition is requested is regarded by the
        Requested State as a political or fiscal offence or an offence only
        under military law;

   (b)  the offence of which the person sought is accused or convicted, or any
        other offence for which the 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;

   (c)  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 the
        person's position may be prejudiced for any of those reasons;

   (d)  final judgment has been rendered in the Requested State or in a third
        state in respect of the offence for which the person's extradition is
        requested:
-- if the afore-mentioned judgment resulted in the person's acquittal;
-- if the term of imprisonment or other deprivation of liberty to which the
person was sentenced has been completely enforced, or has been wholly or, with
respect to the part not enforced, the subject of a pardon or an amnesty; or
-- if the court convicted the person without imposing a penalty; or

   (e)  the person whose extradition is requested cannot, according to the law
        of either Contracting Party, be prosecuted or punished by reason of
        lapse of time. 2. Extradition may be refused in any of the following
        circumstances if:

   (a)  the person whose extradition is requested is a national of the
        Requested State. Where the Requested State refuses to extradite a
        national of that State it shall, if the Requesting State so requests
        and the law of the Requested State allows, 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 requested may be taken; or

   (b)  the offence for which extradition is requested is subject to the
        jurisdiction of the Requested State and that State will prosecute that
        offence. 3. The Requested State may recommend to the Requesting State
        that a request for extradition be withdrawn, specifying the reasons
        therefore, where it considers, taking into account the age, health or
        other personal circumstances of the person sought, that extradition
        should not be requested.
ARTICLE 4
The Request and Supporting 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 5. 2. The request for extradition
shall be accompanied:

   (a)  if a person is accused of an offence - by a warrant for the arrest or
        a copy of the warrant for the arrest of the person, a statement of
        each offence for which extradition is requested and a description of
        the acts or omissions which are alleged against the person in respect
        of each offence;

   (b)  if a person has been convicted in that person's absence of an offence
        - by a judicial or other document, or a copy thereof, authorising the
        apprehension of the person, a statement of each offence for which
        extradition is requested and a description of the acts or omissions
        which are alleged against the person in respect of each offence;

   (c)  if the person has been convicted of an offence otherwise than in that
        person's absence - by a statement of each offence for which
        extradition is requested and a description of the acts or omissions
        which are alleged against the person in respect of each offence, and
        by documents evidencing the conviction and penalty imposed, the fact
        that the sentence is immediately enforceable, and the extent to which
        the penalty has not been carried out;

   (d)  if the person has been convicted of an offence otherwise than in that
        person's absence but no penalty has been imposed - by a statement of
        each offence for which extradition is requested and a description of
        the acts or omissions which are alleged against the person in respect
        of each offence, and by documents evidencing the conviction and a
        statement affirming that it is intended to impose a penalty;

   (e)  in all cases - by a statement of the relevant law creating the
        offence, including any provision relating to the limitation of
        proceedings and a statement of the penalty that can be imposed for the
        offence; and

   (f)  in all cases - by a description which is as accurate as possible of
        the person sought together with any other information which may help
        to establish the person's identity and nationality. 3. Extradition may
        be granted of a person pursuant to the provisions of this Treaty
        notwithstanding that the requirements of Paragraphs 1 and 2 of this
        Article have not been complied with, provided that the person sought
        consents to being extradited. 4. All documents submitted by
        Switzerland in support of the request for extradition shall be in, or
        shall be translated into English. All documents submitted by Australia
        in support of the request for extradition shall be in, or shall be
        translated into an official language of Switzerland, to be specified
        in each case by the competent authority of Switzerland.
ARTICLE 5
Authentication of Supporting Documents 1. A document that, in accordance with
Article 4, accompanies a request for extradition shall be admitted, if
authenticated, in any extradition proceedings in 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
        officer in or of the Requesting State; and

   (b)  it purports to be sealed with an official seal of the Requesting State
        or of a Minister of State, or of a Department of the Requesting State.
ARTICLE 6
Additional Information 1. If the Requested State considers that the
documentation furnished in support of the request is not sufficient in
accordance with this Treaty to enable the 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 requested is under arrest
in relation to extradition 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
prejudice re-arrest and extradition if a request for extradition is received
subsequently. 3. Where the person is released from custody in accordance with
paragraph 2 of this Article, the Requested State shall notify the Requesting
State as soon as possible.
ARTICLE 7
Conflicting Requests If extradition is requested concurrently by more than one
State, either for the same offence or for different offences, the Requested
State shall make its decision having regard to all the circumstances and
especially the relative seriousness and place of commission of the offences,
the nationality of the person sought, the possibility of subsequent
extradition to another State and the respective dates of the requests. Where
appropriate the Requested State shall inform the Requesting State whether it
consents to re-extradition.
ARTICLE 8
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 subject to
any other restriction of personal liberty, in the Requesting State for any
offence committed before the surrender other than:

   (a)  an offence for which extradition was granted; 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 4 as well as a legal record of any statement made by the
        extradited person in respect of the offence concerned. 3. Paragraph 1
        of this Article does not apply if the person extradited 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 Requesting
        State after having left it.
ARTICLE 9
Re-Extradition to a Third State 1. Where a person has been surrendered to the
Requesting State that State shall not extradite the person to any third state
for an offence committed before that person's surrender unless:

   (a)  the Requested State consents to that extradition; 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 Requesting State after having left it. 2. The
        Requested State may request the production of the documents mentioned
        in Article 4 in relation to any consent pursuant to sub-paragraph (1)
        (a) of this Article.
ARTICLE 10
Provisional Arrest 1. In case of urgency a Contracting Party may apply through
the International Criminal Police Organisation (INTERPOL) or otherwise for the
provisional arrest of the person sought. The application may be transmitted by
post or telegraph or by any other means affording a record in writing. 2. The
application for provisional arrest shall contain a description of the person
sought, a statement of the existence of one of the documents mentioned in
paragraph 2 of Article 4 authorising the apprehension of the person, a
statement of an offence for which extradition will be requested, a description
of the acts or omissions alleged to constitute the offence, a statement of the
penalty that can be, or has been, imposed for the offence and a statement that
extradition is to be requested through the diplomatic channel. 3. A person
arrested upon an application for provisional arrest may be released upon the
expiration of 40 days from the date of that person's arrest if a request for
extradition has not been received.
ARTICLE 11
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. Reasons shall be given for any complete
or partial rejection of an extradition request. 2. Where extradition is
granted, the Requested State shall inform the Requesting State of the length
of time for which the person claimed was detained with a view to extradition.
3. Where extradition is granted, the person shall be taken over by the
Requesting State from the Requested State at a point of departure arranged by
the Contracting Parties. 4. The Requesting State shall take over the person
from the Requested State within fifteen days of notification of the decision
referred to in paragraph 1 of this Article. If the Requesting State is unable
to take over the person within this period the Requested State may extend the
period by a further fifteen days upon a request substantiated by the
Requesting State.
ARTICLE 12
Postponed or Temporary Surrender 1. The Requested State may postpone the
surrender of a person in order to proceed against the person, or so that the
person may serve a sentence, for an offence other than an offence constituted
by an act or omission for which extradition is requested. In such cases the
Requested State shall advise the Requesting State accordingly. 2. To the
extent permitted by its law, the Requested State may temporarily surrender the
person sought to the Requesting State in accordance with conditions to be
determined between the Contracting Parties.
ARTICLE 13
Surrender of Property 1. To the extent permitted under the law of the
Requested State and subject to the right 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. The
property mentioned in paragraph 1 of this Article shall, if the Requesting
State so requests, be surrendered to the Requesting State even if the
extradition, having been consented to, cannot be carried out. 3. Where the law
of the Requested State or the rights of third parties so require, any property
so surrendered shall be returned to the Requested State free of charge if that
State so requests.
ARTICLE 14
Transit Transit through the territory of one of the Contracting Parties shall
be granted on a request in writing by the other Contracting Party. The request
for transit:

   (a)  may be transmitted by post or telegraph or by any other means
        affording a record in writing; and

   (b)  shall contain the information referred to in paragraph 2 of Article
        10.
ARTICLE 15
Representation and 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, as well as bear the expenses incurred in its territory in the arrest
and detention of the person whose extradition is requested. 2. The Requesting
State shall bear the expenses incurred in conveying the person from the
territory of the Requested State.
ARTICLE 16
Other Obligations This Treaty shall not affect any obligation which the
Contracting Parties may have undertaken or may undertake under any
multilateral convention, to which they are both party.
ARTICLE 17
Dispute Settlement 1. The Contracting Parties shall consult, at the request of
either, concerning the interpretation or the application of this Treaty either
generally or in relation to a particular case. 2. Any dispute between the
Contracting Parties concerning the interpretation of this Treaty which has not
been settled by consultations under paragraph 1 of this Article may be
referred by either Party to the International Court of Justice in conformity
with the Statute of the Court. 3. Any dispute settlement in accordance with
paragraph 2 of this Article shall not affect the validity of any final
decision of an executive or judicial authority of a Contracting Party made in
connection with a request giving rise to the dispute.
ARTICLE 18
Amendment The Contracting Parties shall consult at the request of either
concerning any proposal to amend this Treaty.
ARTICLE 19
Entry into Force and Termination 1. This Treaty shall enter into force 180
days after the date on which the Contracting Parties have notified each other
in writing that their respective requirements for the entry into force of this
Treaty have been complied with. 2. On the entry into force of this Treaty the
provisions of:

   (a)  the Treaty for the Mutual Extradition of Fugitive Criminals between
        the Swiss Confederation and the United Kingdom of Great Britain and
        Ireland, done at Berne on 26 November 1880;

   (b)  the Supplementary Convention to the aforesaid Treaty, done at London
        on 29 June 1904; and

   (c)  the Supplementary Convention to the aforesaid Treaty, done at Berne on
        19 December 1934, shall cease to have effect, except with respect to
        extradition proceedings < pending at that time, between Australia and
 Switzerland. 3. Either Contracting Party 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. IN WITNESS WHEREOF the undersigned,
        being duly authorized thereto by their respective Governments, have
        signed this Treaty. DONE at SYDNEY on the TWENTY NINTH day of JULY One
        Thousand nine hundred and eighty-eight, in English and German, both
        texts being equally authentic.
FOR AUSTRALIA                              FOR THE SWISS CONFEDERATION

Lionel Bowen                               Jean-Pascal Delamurez


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