Commonwealth Numbered Regulations

1989 No. 265 EXTRADITION (REPUBLIC OF FRANCE) REGULATIONS - SCHEDULE

SCHEDULE

Regulation 5
TREATY ON EXTRADITION BETWEEN THE
GOVERNMENT OF THE REPUBLIC OF FRANCE
AND THE GOVERNMENT OF AUSTRALIA The Government of the Republic of France and
the Government of Australia, DESIRING to make more effective the co-operation
of the two States 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 1. 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. 2. The provisions of this Treaty
do not affect any obligations assumed by the Contracting Parties under
multilateral conventions to which both are party.
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 two years or by a more severe penalty. Where a 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 penalty of at least six months or a
more severe penalty has been imposed, or if a period of at least six 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. For the purpose
of this Article, in determining whether an offence is an offence against the
law of both Contracting Parties, the totality of the  acts or omissions
alleged against the person whose extradition is requested shall be taken into
account. 4. Extradition may be refused if the offence has been committed
outside the territory of the Requesting State and if the law of the Requested
State does not provide for prosecution for the same 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)  when the offence for which extradition is requested is considered by
        the Requested State to be a political offence or to be an offence
        connected with such an offence. The taking or attempted taking of the
        life of a Head of State shall not be considered to be a political
        offence;

   (b)  when the Requested State has substantial grounds for believing that
        the 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 opinions or
        that that person's position may be prejudiced for any of those
        reasons;

   (c)  when the offence for which the extradition is requested consists
        solely of a breach of military law;

   (d)  where final judgment has been passed in the Requested State in respect
        of the offence for which the person's surrender is sought; or

   (e)  where the person whose surrender 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 conformity with the law of the Requested State in any of the
        following circumstances:

   (a)  when the offence for which extradition is requested is regarded under
        the law of the Requested State as having been committed in whole or in
        part within that State; or

   (b)  when the person whose surrender is sought is a national of the
        Requested State. Where the extradition request is refused solely
        because the person sought is a national of the Requested State, that
        State shall, if the Requesting State so requests and the law of the
        Requested State allows, submit the case to its competent authorities
        for criminal prosecution. 3. Extradition may also be refused:

   (a)  when the competent authorities of the Requested State have decided to
        refrain from prosecuting the person whose surrender is sought for the
        offence in respect of which extradition is requested;

   (b)  when the offence for which extradition is requested is a revenue
        offence. For the purpose of this exception, 'revenue offence' means an
        offence in connection with taxes, customs or other duties or exchange
        controls;

   (c)  when final judgment has been passed in a third state in respect of the
        offence for which the person's surrender is sought;

   (d)  when a prosecution in respect of the offence for which extradition is
        requested is pending in the Requested State against the person whose
        surrender is sought, or if the competent authorities of the Requested
        State have decided to discontinue a prosecution for that offence; or

   (e)  if the surrender is likely to have exceptionally serious consequences
        for the person whose extradition is sought, particularly because of
        the person's age or state of health.
Article 4
Capital Punishment When the offence for which extradition is requested is
punishable by death under the law of the Requesting State, and if in respect
of such offence the death-penalty is not provided for by the law of the
Requested State or is not normally carried out, extradition may be refused
unless the Requesting State gives such assurance as the Requested State
considers sufficient that the death-penalty will not be carried out.
Article 5
Postponement of Surrender The Requested State may postpone the surrender of a
person whose extradition is sought in order to proceed against the person, or
so that the person may serve a sentence for an offence other than the offence
constituted by an act or omission for which extradition is requested. In this
case, the Requested State shall advise the Requesting State accordingly.
Article 6

Extradition Procedure and Required Documents

1. A request for extradition shall be accompanied:

(a) if the person is accused, by the original or a certified copy of the
warrant for arrest or any other instrument having the same effect issued in
accordance with the procedure laid down in the law of the Requesting State;

(b) if the person has been convicted of an offence in Australia but no
sentence has been imposed, by the original or a certified copy of the warrant
for arrest and such documents as provide evidence of the conviction and that
it is intended to impose a sentence;

(c) if the person has been convicted in the person's absence, the original or
a certified copy of the judgement of conviction accompanied by a document
stating the extent to which the sentence has not been carried out and the
original or a certified copy of the warrant for arrest or any other instrument
having the same effect issued in accordance with the procedure laid down in t
he law of the Requesting State;

(d) in other cases, by the original or a certified copy of the judgement of
conviction or any other instrument equivalent to a judgement, declaring that
the person has been convicted and stating the sentence imposed, with a
statement that the sentence is immediately enforceable and of the extent to
which the sentence has not been carried out; and

(e) in all cases by:

- a statement of the acts or omissions alleged in respect of each offence for
which extradition is requested, indicating in particular the time and place at
which each offence was committed;

- references to, and the text of, the relevant legal provisions, and in
particular those relating to limitation of proceedings and to the sentence
that may be imposed;

- as accurate a description as possible of the person sought together with any
other information which will help to establish the person's identity and
nationality.

Article 7

Authentication of Supporting Documents

1. the documents that, in accordance with Article 6, accompany a request for
extradition shall be admitted in evidence in the Requested State, if duly
authenticated.

2. A document is duly authenticated for the purposes of this Treaty if it
purports to be signed or certified by a Judge, Magistrate or officer in or of
the Requesting State and to bear the official seal of the Requesting State or
of a Minister of State, Ministry or officer of the Government of that State.
However, where the documents are bound and sealed, a Judge, Magistrate or
officer in or of the Requesting State need only sign or certify the first and
last pages of the bound documents.

Article 8

Additional Information

1. If the requested State considers that the information furnished in support
of the request for extradition 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 form making a fresh request for
extradition.

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 9

Provisional Arrest

1. (a) In case of urgency a Contracting Party may apply for the provisional
arrest of the person sought pending the presentation of the request for
extradition through the diplomatic channel.

(b) The application for provisional arrest shall be transmitted by means of
the facilities of the International Criminal Police organisation (INTERPOL),
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 and terms of the warrant of arrest or the
judgement of conviction, a statement of the punishment that can be imposed or
has been imposed, a description of the nature of the offence, and a brief
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 arrest the person sought and the Requesting State shall be
promptly notified of the result of its application.

4. A person arrested upon such an application may be set at liberty upon the
expiration of forty-five days and shall be set at liberty upon the expiration
of sixty days from the date of the person's arrest if a request for
extradition, supported by the documents specified in Article 6, has not been
received. However, the release of the person sought at any time shall remain
possible provided that the Requested State takes all measures it considers
necessary to prevent the escape of the person concerned.

5. The release of a person pursuant to paragraph 4 of this Article shall not
prevent re-arrest and extradition if the request is subsequently received.





Article 10
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 State of its decision. 2. In determining to which State a person is
to be extradited, the Requested State shall have regard to all the
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 11
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 is granted, the Requesting State shall be informed of the place of
surrender, the period within which the person will be surrendered and the
length of time for which the person has been detained with a view to
extradition. 3. If circumstances beyond its control prevent a Contracting
Party from surrendering or removing the person to be extradited it shall
notify the other Party. The two Parties shall agree upon a new period within
which the person is to be surrendered. 4. If the person sought has not been
removed by the expiration of the set period, that person may be released after
the expiration of a further period of fifteen days from that date, and shall
be released in any case on the expiration of a period of thirty days. The
Requested State may, in accordance with its laws, refuse to extradite a person
so released for the same offence.
Article 12
Surrender of Property 1. At the request of the Requesting State, the Requested
State shall seize and surrender, to the extent permitted by its law and if
extradition is granted, any property which may be required as evidence or
which, having been acquired as a result of the offence has been found in the
possession of the person sought at the time of arrest, or discovered at any
subsequent time. 2. Subject to the qualifications of paragraph 1 of this
Article, the abovementioned property 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 owing to the death or escape
of the person sought. 3. Any rights acquired by the Requested State or third
parties in the property shall be preserved. If such rights exist, the property
shall, at the request of the Requested State, be returned to that State free
of charge, on the completion of the proceedings in the Requesting State.
Article 13
Rule of Speciality A person extradited under this Treaty shall not be detained
or tried or be subjected to any other restriction of liberty in the territory
of the Requesting State for any offence committed before extradition other
than the offence for which extradition was granted except:

   (a)  where the Requested State consents in respect of any other
        extraditable offence. A request for the consent of the Requested State
        shall be accompanied by the documents mentioned in Article 6 as well
        as a record of any statement made by the extradited person in respect
        of the offence concerned; or

   (b)  where the person has had an opportunity to leave the Requesting State
        and has not done so within forty-five days of final discharge or if
        the person has returned to the territory of the Requesting State after
        leaving it.
Article 14
Re-Extradition 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 the
person's surrender unless:

   (a)  the Requested State consents to that surrender; or

   (b)  the person has had an opportunity to leave the territory of the
        Requesting State and has not done so within forty-five days of final
        discharge 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 6 and of a record
        of any statements made by the person extradited in relation to the
        offence for which the consent of the Requested State is sought.
Article 15
Transit 1. Where a person is to be extradited to a Contracting Party from a
third State through the territory of the other Contracting Party, the
Requesting State to which the person is to be extradited shall request the
Requested State of transit to permit the transit of that person through its
territory. 2. Transit shall be permitted only if the offences in respect of
which the person is being surrendered are offences of a kind which would be
extraditable under this Treaty. 3. 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. 4. Where a person is being held
in custody pursuant to paragraph 3 of this Article, the Contracting Party in
whose territory the person is being held may direct that the person be
released if the person's transportation is not continued within a reasonable
time. 5. Where air transport is used the following provisions shall apply:

   (a)  when no landing is scheduled, the Requesting State shall advise the
        State whose territory is to be overflown and shall certify that the
        documents referred to in Article 6 exist. In the case of an
        unscheduled landing, this advice shall have the effect of a request
        for provisional arrest pursuant to Article 9 and the Requesting State
        shall forward a normal transit request;

   (b)  when a landing is scheduled, the Requesting State shall forward a
        normal transit request.
Article 16
Translation The documents to be produced in support of any request under this
Treaty shall be accompanied by a translation into the language of the
Requested State.
Article 17
Expenses Except for the costs of conveying the person extradited and those
occasioned by transit, which shall be borne by the Requesting State, expenses
resulting from the extradition shall be borne by the State in whose territory
they were incurred.
Article 18
Ratification, Entry Into Force and Termination 1. Each Contracting Party shall
notify the other of the accomplishment of the procedure required for the entry
into force of this Treaty. This Treaty shall enter into force thirty days
after the date of receipt of the last of these notifications. 2. This Treaty
replaces and terminates, with regard to the relations between the Contracting
Parties, the provisions of the treaty between France and Great Britain for the
Mutual Surrender of Fugitive Criminals, signed at Paris on 14 August 1876 and
amended by the Convention signed at Paris on 13 February 1896 and the
Convention signed at Paris on 17 October 1908. 3. (a) For any request made
after the entry into force of this Treaty extradition may be granted pursuant
to the provisions of this Treaty irrespective of whether the offence in
relation to which extradition is sought was committed before the entry into
force of this Treaty.

   (b)  However, any request for extradition presented prior to the entry into
        force of this Treaty shall be governed by the provisions of the
        extradition treaty between Great Britain and France referred to in
        paragraph 2 of this Article. 4. Each Contracting Party may terminate
        this Treaty at any time by forwarding through the diplomatic channel
        written notice of termination; termination shall take effect six
        months after receipt of this notification. IN WITNESS WHEREOF the
        undersigned, being duly authorised thereto by their respective
        Governments, have signed this Treaty. DONE AT Canberra on the
        thirty-first day of August One thousand, nine hundred and eighty-eight
        in English and in French both texts being equally authentic.
LIONEL BOWEN
FOR THE GOVERNMENT
              OF AUSTRALIA                            ROGER DUZER

FOR THE GOVERNMENT OF
THE REPUBLIC OF FRANCE