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1988 No. 288 EXTRADITION (KINGDOM OF BELGIUM) REGULATIONS - SCHEDULE

SCHEDULE
Regulation 4
TREATY ON EXTRADITION
BETWEEN
AUSTRALIA
AND
THE KINGDOM OF BELGIUM AUSTRALIA and THE KINGDOM OF BELGIUM,
Desiring to make more effective the co-operation of the two countries in the
suppression of crime by concluding a treaty for the extradition of persons
charged with or convicted of offences,
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 which are punishable under the laws of both Contracting
Parties 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 penalty of at least
one year has been imposed and if a period of at least three months of such
penalty remains to be served. 2. For the purpose of this Article, 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 or similar terminology. 3. In determining whether an
offence is an offence for which extradition may be granted, 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
both Contracting Parties, the constituent elements of the offence differ. 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. 5. Extradition may be granted pursuant to the
provisions of this Treaty whether or not the offence in relation to which
extradition is sought was committed before or after the entry into force of
this Treaty, provided that:
a) in the case of a request emanating from Belgium:

        (i)    it was an offence under the law of Belgium at the time of
               the acts or omissions constituting the offence; and

        (ii)   the acts or omissions alleged would, if they had taken place in
               Australia at the time of the making of the request for
               extradition, have constituted an offence against the law in
               force in Australia; and
b) in the case of a request emanating from Australia, it was an offence under
the law of both Contracting Parties at the time of the acts or omissions
constituting the offence.
Article 3
Exceptions to extradition 1. Extradition shall not be granted in any of the
following circumstances:
a) when the offence for which extradition is requested 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 his or her family;
b) when 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) when the offence for which extradition is requested is an offence under
military law, which is not an offence under the ordinary criminal law of the
Contracting Parties;
d) where 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
e) where the person whose extradition is sought has, according to the law of
either Contracting Party, become immune from prosecution or punishment by
reason of lapse of time. 2. Extradition may be refused in any of the following
circumstances:
a) when 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 Contracting Party 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) when the competent authorities of the Requested State have decided to
refrain from prosecuting the person for the offence in respect of which
extradition is requested;
c) where the offence with which the person sought is charged or of which he is
convicted, carries the death penalty under the law of the Requesting State
unless that State gives such assurance as the Requested State considers
sufficient that the death penalty will not be carried out;
d) when the offence for which extradition is requested is regarded under the
law of the Requested State as having been committed in that State;
e) when a prosecution in respect of the offence for which extradition is
requested is pending in the Requested State against the person whose
extradition is sought; or
f) where the Requested State, while also taking into account the nature of the
offence and the interests of the Requesting State, considers that the
extradition would be incompatible with humanitarian considerations such as the
age or health of the person. 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
The Requested State may postpone the extradition of a person in order to
proceed against him, or so that he may serve a sentence, for an offence other
than the offence for which his 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
offence- by a warrant for the arrest or a copy of the warrant for arrest of
the person, a statement of each offence for which extradition is sought and a
statement of the acts or omissions which are alleged against the person in
respect of each offence;
b) if the person has been convicted in his absence- by a judicial or other
document, including a judgement, or a copy there of, authorizing the
apprehension of the person, issued in the Requesting State, a statement of
each offence for which extradition is sought and a statement 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- by 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;
d) if the person has been convicted of an offence but no sentence has been
imposed- by such documents as provide evidence of the conviction and a
statement affirming that it is intended to impose a sentence;
e) in all cases by the text of the relevant provision of the law creating the
offence (or in the case of Australia in respect of a common law offence, by a
statement of the law applicable to the offence) including any law relating to
the limitation of proceedings and, in either case, a statement of the
punishment that can be imposed for the offence; and
f) in all cases by as accurate a description as possible of the person claimed
together with any other information which may help to establish his identity
and nationality. 3. To the extent permitted by the law of the Requested State,
extradition may be granted of a person sought 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 an order for his extradition being made. 4. The documents
submitted in support of a request for extradition shall be recompanied by a
translation into one of the languages of the Requested 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 officer in
or of the Requesting State; and
b) it purports to be authenticated by being 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 the request for the extradition of a
person is not sufficient to fulfil the requirements of its law with respect to
extradition, 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 and the additional information furnished is not
sufficient or is not received within the time specified, the person may be
released from custody but 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 of this
Article, the Requested State shall notify the Requesting State as soon as
practicable.
Article 8
Provisional arrest 1. In case of urgency a Contracting Party may apply by
means of the facilities of the International Criminal Police Organisation
(INTERPOL) or otherwise in writing for the provisional arrest of the person
sought pending the presentation of the request for extradition through the
diplomatic channel. 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 authorizing 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 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 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 forty five days from
the date of his arrest if a request for his 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) the 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 of person to be extradited 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 of a person for an offence is granted, the person shall be removed
from the territory of the Requested State from a point of departure in the
territory of that State 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 last-mentioned State specifies and, if the
person is not removed within that period, the Requested State may refuse to
extradite him for the same offence. 4. If circumstances beyond its control
prevent a Contracting Party from surrendering or removing the person to be
extradited it shall notify the other Contracting Party. The two Contracting
Parties shall agree 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 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 that State even if the
extradition, having been consented to, cannot be carried out owing to the
death or escape of the person sought. 3. The rights of the Requested State or
of third parties in the property shall be preserved. Where such rights exist,
the property shall, without charge, be returned to the Requested State at the
end of the proceedings in the Requesting State if the Requested State so
requests. 4. The Requested State may temporarily retain the property referred
to in this Article if it considers it necessary for the purpose of criminal or
civil proceedings. In such a case the Requesting State may request the
temporary handing over of the property, undertaking to return it as soon as
the proceedings conducted in its territory permit if the Requested 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 his personal liberty, in the territory of the
Requesting State for any offence committed before his extradition other than:

        (i)    an offence for which his extradition was granted; or

   (ii) any other extraditable offence in respect of which the Requested State
        consents to his being so detained, tried or subjected to a restriction
        of his personal liberty. 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 forty five days of final discharge in respect
        of the offence for which that person was extradited or if the person
        has returned voluntarily to the territory of the Requesting State
        after leaving it.
Article 13
Surrender to a third State 1. The person extradited may not be surrendered by
the Requesting State to a third State for an offence committed prior to his
surrender to the first-mentioned State, except:
a) where the Requested State consents; or
b) where the person extradited, having had an opportunity to leave the
Requesting State, has not done so within forty five days of his final
discharge in respect of the offence for which he was surrendered, or has
returned voluntarily to the Requesting State after leaving it. 2. Where the
consent of the Requested State is sought in accordance with this Article, that
State may request that the request for the consent be supported by the
relevant documents mentioned in Article 5 of this Treaty.
Article 14
Transit 1. Each Contracting Party may, when requested by the other Contracting
Party, grant transit through its territory of a person sought by the latter
Party from a third State pursuant to an extradition treaty. In support of the
request, the Requesting State shall produce the documents and information
required by the State which has been requested to grant transit. 2. Permission
for the transit of a person shall, subject to the law of the Requested State,
include permission for the person to be held in custody during transit. 3.
Where a person is being held in custody pursuant to paragraph 2 of this
Article, the Requested State may direct that the person be released if his
transportation is not continued within a reasonable time. 4. The Requesting
State shall reimburse the Requested State for any expense in connection with
the transit incurred by the Requested State in its territory.
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 of the person whose extradition is requested, and in the maintenance in
custody of the person until he is surrendered to a person nominated by the
Requesting State.
Article 16
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 requirements for the entry into force of this
Treaty have been complied with. 2. Either Contracting Party may terminate this
Treaty by notice in writing at any time and it shall cease to be in force six
months after date of receipt of such notice.
Article 17
Termination of existing Treaties
On the entry into force of this Treaty the provisions of:
a) the Treaty for the Mutual Extradition of Fugitive Criminals, done at
Brussels on 29 October 1901;
b) the Supplementary Convention, done at London on 5 March 1907; and
c) the second Supplementary Convention, done at London on 3 March 1911, shall
cease to have effect between Australia and the Kingdom of Belgium.
IN WITNESS WHEREOF the undersigned, being duly authorised thereto, have signed
this Treaty.
Done in duplicate at Brussels, on 4 September 1985, in English, French and
Dutch, each text being equally authentic.
             For Australia:                   For the Kingdom of Belgium:

              LIONEL BOWEN                           LEO TINDEMANS


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