Commonwealth Numbered Regulations

1989 No. 372 EXTRADITION (REPUBLIC OF ARGENTINA) REGULATIONS - SCHEDULE

                        SCHEDULE                           Regulation 5

TREATY ON EXTRADITION
BETWEEN
THE GOVERNMENT OF AUSTRALIA
AND
THE GOVERNMENT OF THE REPUBLIC OF ARGENTINA
The Government of Australia and the Government of the Republic of Argentina;
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 Party 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 Parties by imprisonment for a maximum period of at least ONE
(1) year, or by a more severe penalty. Where the request for extraditon
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 one year of such penalty remains to be served. 2. For
the purpose of this Article, in determining whether conduct 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. 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 tax or duty or
does not contain regulations similar to those of the Requesting State with
respect to those matters. 4. Extradition shall 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 under the laws of both Contracting Parties at the time of
the acts or omissions constituting the offence; and
b) it was an offence under the laws of both Contracting Parties at the time
the request for extradition was made. 5. 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.
ARTICLE 3
EXCEPTIONS TO EXTRADITION 1. Extradition shall not be granted in any of the
following circumstances:
a) if the Requested State determines that the offence for which extradition is
requested is a political offence. The mere allegation of a political reason or
motive for the commission of the offence shall not of itself render the
offence an offence of a political character. Reference to a political offence,
for the purpose of this paragraph, shall not include:
i) an attack on the life of a Head of State or a member of that person's
family;
ii) an offence relating to any law against genocide; or
iii) any offence in respect of which the Contracting Parties have assumed or
will assume an obligation to establish jurisdiction or to extradite pursuant
to an international agreement to which they are both parties.
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 a purely military offence
which is not punishable under the ordinary criminal law of the Contracting
Parties;
d) if 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
or if the person has been granted a pardon or is the subject of an amnesty in
respect of that offence;
e) if the person sought cannot be prosecuted or convicted by reason of any
limitation, including the lapse of time, prescribed or imposed by the law of
either Contracting Party; or
f) if the person, on being surrendered to the Requesting State, would be
liable to be tried or sentenced or to serve a sentence imposed 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 its laws permit and the other State so requests, 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 courts of the Requested State are competent to try the offence for
which extradition is requested. If extradition is refused on this ground, the
Requested State shall submit the case to its competent authorities in order
that proceedings for the prosecution of the person may be taken.
c) if the offence for which the person is sought 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 an offence which carries
a punishment of the kind referred to in Article 7 of the International
Covenant on Civil and Political Rights; or
e) if, in exceptional cases, the Requested State, while also taking into
account the nature of the offence and the interests of the Requesting State,
deems that, because of the personal circumstances of the person sought, the
extradition would be totally incompatible with humanitarian considerations. 3.
This Article shall not affect any obligations which have been or shall in the
future be assumed by the Contracting Parties under any multilateral
Convention.
ARTICLE 4
POSTPONEMENT OF EXTRADITION 1. The Requested State may postpone the surrender
of a person:
a) in order to proceed against that person, or so that that person may serve a
sentence, for an offence other than that for which extradition is sought;
b) when the health or other personal circumstances of the person are
sufficiently serious so as to make surrender dangerous to the life of that
person or incompatible with humanitarian considerations. 2. In such cases 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. 2. The request for extradition shall be accompanied by:
a) a statement of the acts or omissions which are alleged against the person
in respect of each offence for which extradition is sought;
b) a statement of each offence for which extradition is sought;
c) the details necessary to establish the identity and nationality of the
person sought including, when possible, photographs and fingerprints;
d) the text of the laws creating the offence and describing the penalty which
may be imposed and, if the request is made by Australia for a common law
offence, by a statement of the basis of the creation of the offence and the
applicable penalty; and
e) if the request is made by Australia, the text of the laws imposing any
limitation in respect of proceedings or, if the request is made by Argentina,
the text of the laws relating to the extinguishment of the action or the
penalty. 3. When the request relates to a person who has not been convicted,
it shall be accompanied by a detention order or a warrant of arrest or by the
equivalent writ of legal process, issued by the competent authority of the
Requesting State. 4. When the request relates to a person who has been
convicted, it shall be accompanied by the following documents:
a) if the request has been made by Australia, a certificate of conviction and
a copy of the sentence, if it has been imposed; or if a sentence has not been
imposed a statement of intention to impose a sentence;
b) if the request has been made by the Republic of Argentina, a copy of the
sentence that has been imposed.
When a sentence has been imposed the Requesting State shall provide a
certificate stating that the sentence is immediately enforceable and that it
has not been fully enforced and the extent to which it has not been carried
out. 5. The documents supporting the request for extradition shall comply with
Article 8 and shall be accompanied by a translation into the language of the
Requested State.
ARTICLE 6
CONVICTION IN ABSENTIA
Extradition shall not be granted when the person sought has been convicted in
absentia unless the Requesting State gives assurances that it shall reopen the
proceedings so that the person sought has an opportunity to present a defence.
In such a case the Requesting State shall furnish its request in accordance
with Article 5 of this Treaty as if the person had not been convicted of the
offence.
ARTICLE 7
SIMPLIFIED EXTRADITION
Notwithstanding that the formal requirements of this Treaty have not been
complied with, the Requested State may grant the extradition if the person
sought expressly agrees after having been informed of his rights to an
extradition proceeding and of the protection afforded by such proceeding.
ARTICLE 8
AUTHENTICATION OF SUPPORTING DOCUMENTS 1. Any document that, in accordance
with Article 5 of this Treaty, accompanies a request for extradition shall be
admitted in evidence in any extradition proceedings in the Requested State if:
a) it purports to be signed or certified by a Judge, or other judicial officer
in or of the Requesting State; and
b) it purports to be sealed with an official seal of a Minister of State or of
a department of the Government of the Requesting State. 2. The signatures and
seal on documents presented through the diplomatic channel shall be deemed to
be those of the persons and the Department referred to in paragraph 1 of this
Article.
ARTICLE 9
ADDITIONAL INFORMATION 1. If the Requested State considers that the documents
submitted in support of the extradition request are not sufficient according
to the provisions of this Treaty, it may request the presentation of
additional information within such time as it specifies. 2. If the person
whose extradition is sought is in custody or on bail as a result of the
extradition request and the additional information furnished is not
sufficient, in accordance with this Treaty, or has not been received within
the time specified, the person may be released from custody or discharged.
Such release or discharge shall not preclude a further arrest if the request
accompanied by the necessary additional information is subsequently received.
ARTICLE 10
PROVISIONAL ARREST 1. In case of urgency either Contracting Party may apply
through the diplomatic channel or by means of the facilities of the
International Criminal Police Organisation (INTERPOL) 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. An
application for provisional arrest 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
paragraphs 3 and 4 of Article 5, a statement of the offence committed, a
statement of the punishment that can be, 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 an
application the Requested State shall take the necessary steps to secure the
arrest of the person sought and the Requesting State shall be promptly
notified of the results of its request. 4. A person arrested upon such
application may be set at liberty upon the expiration of 45 days from the date
of the 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 for the extradition of the person sought if the request is
subsequently received. 6. A person provisionally arrested may, in accordance
with the laws of the Requested State, be released from custody by the
competent authorities of that State provided adequate measures to prevent the
person absconding are taken.
ARTICLE 11
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. Where requests relate to the same
offence, the Requested State shall, unless the particular circumstances of the
case require otherwise, give preference to the request of the State in whose
territory the offence was committed. Other particular circumstances which may
be taken into account include the nationality and ordinary place of residence
of the person sought and the dates of the respective requests. 3. Where the
requests relate to different offences, the Requested State shall give
preference to the request relating to the offence regarded as most serious
under its law unless the particular circumstances of the case require
otherwise. ARTICLE 12
COMMUNICATION OF THE DECISION
The Requested State shall, as soon as a decision has been made on the request
for extradition, communicate the decision to the Requesting State through the
diplomatic channel. If the request is refused, in whole or in part, the
Requested State shall advise the Requesting State of the reasons for the
refusal.
ARTICLE 13
SURRENDER 1. Where extradition is granted, the Requested State shall surrender
the person from a point of departure in its territory convenient to the
Requesting State. 2. The Requesting State shall remove the person from the
Requested State within the period of thirty days from the date of the
notification referred to in Article 12. 3. If circumstances beyond its control
prevent a Contracting Party from surrendering or removing the person to be
extradited, within the period specified in paragraph 2 of this Article it
shall notify the other Contracting Party. The Contracting Parties shall
mutually decide upon a new date of surrender. 4. If the person is not removed
within the period determined pursuant to paragraphs 2 or 3 of this Article the
person shall be released and the Requesting State may not submit a further
request in respect of the same offence.
ARTICLE 14
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.
Such property shall, if the Requesting State so requests, be surrendered to
the Requesting State even if the extradition is postponed or cannot be carried
out owing to the death or escape of the person sought provided that the rights
of third parties are respected. 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 15
RULE OF SPECIALITY 1. A person extradited under this Treaty shall not be
detained or tried, or be subjected to any other restriction of personal
liberty in the territory of the Requesting State for any offence committed
prior to extradition other than:
a) 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 granted; or
b) any other extraditable offence in respect of which the Requested State
consents. A request for the consent of the Requested State shall be
accompanied by the documents required by Article 5. 2. Paragraph 1 of this
Article does not apply if the person gives express consent to being detained
or tried for any other offence committed prior to extradition or, having had
an opportunity voluntarily to leave the territory of the Requesting State has
not done so within 30 days, or if the person has returned to the Requesting
State after leaving it.
ARTICLE 16
RE-EXTRADITION TO A THIRD STATE
Where a person has been surrendered to the Requesting State by the Requested
State, the Requesting State shall not surrender that person to a third State
for an offence committed prior to the surrender, unless:
a) the Requested State consents to re-extradition, in which case the request
for such consent shall be accompanied by the documents referred to in Article
5; or
b) if the person gives express consent to being re-extradited or, having had
an opportunity voluntarily to leave the territory of the Requesting State has
not done so within 30 days, or if the person has returned to that State after
leaving it.
ARTICLE 17
TRANSIT 1. The transit of a person being extradited from a third State through
the territory of a Contracting Party shall be granted after a copy of the
communication granting the extradition together with a copy of the original
request for extradition has been submitted through the diplomatic channel,
provided that there are no reasons of public policy for refusing transit. 2.
The authorities of the State where the person sought is in transit shall take
charge of the custody of that person. 3. The Contracting Party in whose
territory the extradited person is in transit may order his release if
transportation is not continued within a reasonable time. 4. The Requesting
State shall re-imburse the State which granted transit for any expenses
incurred by that State in relation to that transit. 5. Authorization for
transit shall not be required when air transport is to be used and no landing
is scheduled in the territory of the State of transit. 6. If an unscheduled
landing occurs in the territory of one Contracting Party that Party may
require the other Party to furnish a request for transit which may be
communicated through the facilities of INTERPOL and subsequently confirmed
through the diplomatic channel. The State of transit shall detain the person
being extradited until the transportation is continued provided that the
request is received within 96 hours of the unscheduled landing.
ARTICLE 18
EXPENSES All expenses incurred in the territory of the Requested State as a
result of the extradition shall be borne by that State except for expenses
connected with the international transportation of the person sought which
shall be borne by the Requesting State.
ARTICLE 19
REPRESENTATION
The Requested State, through its competent authorities, shall afford
representation for the interests of the Requesting State in the extradition
proceedings. The representative appointed by the Requested State will be
legally authorized to act in those proceedings.
ARTICLE 20
MUTUAL ASSISTANCE IN CRIMINAL MATTERS
Subject to any further Treaty between them, the Contracting Parties agree to
afford each other, in accordance with their laws, mutual assistance to the
maximum extent possible for the purposes of the investigation of any offence
and for the purposes of any criminal proceedings under their jurisdiction.
ARTICLE 21
ENTRY INTO FORCE AND TERMINATION 1. This Treaty shall enter into force thirty
days after the date on which the Contracting Parties have notified each other
in writing that their respective legal requirements for the entry into force
of this Treaty have been complied with. 2. On the entry into force of this
Treaty, the Treaty for the Mutual Extradition of Fugitive Criminals done at
Buenos Aires on 22 May 1889 and confirmed by Notes of 10 June and 18 August
1971 shall cease to be in force between Argentina and Australia. 3. Requests
for extradition made after this Treaty has entered into force shall be
governed by its provisions whatever the date of the commission of the offence.
4. Requests for extradition made before this Treaty enters into force shall
continue to be governed by the Treaty referred to in paragraph 2 of this
Article. 5. Either Contracting Party may notify the other in writing at any
time of its intention to terminate this Treaty 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 authorised thereto by
their respective Governments, have signed this Treaty. DONE at Buenos Aires on
the sixth day of October One thousand nine hundred and eighty eight in two
originals each one of them in English and Spanish languages, both texts being
equally authentic.
         FOR THE GOVERNMENT OF            FOR THE GOVERNMENT OF

               AUSTRALIA                 THE REPUBLIC OF ARGENTINA

              LIONEL BOWEN                     JORGE SABATO