Commonwealth Numbered Regulations

1994 No. 441 EXTRADITION (REPUBLIC OF INDONESIA) REGULATIONS - SCHEDULE

SCHEDULE
EXTRADITION TREATY BETWEEN AUSTRALIA AND THE REPUBLIC OF INDONESIA
AUSTRALIA AND THE REPUBLIC OF INDONESIA,
DESIRING to make more effective the cooperation of the two countries in the
repression of crime and specifically, to regulate and thereby promote the
relations between them in matters of extradition,
HAVE AGREED AS FOLLOWS:
Article 1
Obligation to Extradite
1. 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.
2. 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 2
Extraditable Offences
1. Persons shall be extradited according to the provisions of this Treaty for
any act or omission constituting any of the following offences provided the
offence is punishable by the laws of both Contracting States by a term of
imprisonment of not less than one year or by a more severe penalty:

(1) wilful murder, murder;

(2) manslaughter;

(3) an offence against the law relating to abortion;

(4) aiding or abetting or counselling or procuring the commission of suicide;

(5) maliciously or wilfully wounding or inflicting grievous bodily harm,
assault occasioning actual bodily harm;

(6) assaulting a Magistrate, a police officer or a public officer;

(7) assault on board a ship or aircraft with intent to destroy life or cause
grievous bodily harm;

(8) rape or sexual assault;

(9) indecent assault;

(10) procuring, or trafficking in, women and young persons for immoral
purposes; living on the earnings of prostitution; any other offence against
the law relating to prostitution;

(11) bigamy;

(12) kidnapping; abduction; false imprisonment; dealing in slaves;

(13) stealing, abandoning, exposing, or unlawfully detaining a child;

(14) an offence against the law relating to bribery;

(15) perjury; subornation of perjury; obstructing or defeating the course of
justice;

(16) arson;

(17) an offence relating to counterfeiting;

(18) an offence against the law relating to forgery or against the law
relating to uttering what is forged;

(19) an offence against the law relating to taxation, customs duties, foreign
exchange control or other revenue matters;

(20) stealing; embezzlement; fraudulent conversion; fraudulent false
accounting; obtaining property, money, valuable securities or credit by false
pretences or other form of deception; receiving stolen property, any offence
involving fraud;

(21) burglary; housebreaking; any similar offence;

(22) robbery;

(23) blackmail or extortion by means of threats or by abuse of authority;

(24) an offence against the law relating to bankruptcy and insolvency;

(25) an offence against the law relating to companies;

(26) maliciously or wilfully damaging property;

(27) an act done with the intention of endangering the safety of persons
travelling on a railway, vehicle, ship, or aircraft or of endangering or
damaging a railway, vehicle, ship or aircraft;

(28) piracy;

(29) an unlawful act against the authority of the master of a ship or the
commander of an aircraft;

(30) the unlawful seizure, or unlawful exercise of control, of a ship or
aircraft, by force or threat of force or by any other form of intimidation;

(31) an unlawful act of any of the kinds specified in paragraph 1 of Article 1
of the Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation;

(32) an offence against the law relating to dangerous drugs or narcotics; or

(33) aiding, abetting, counselling or procuring the commission of, being an
accessory before or after the fact to, or attempting or conspiring to commit,
an offence described in a preceding item.
2. Extradition may also be granted at the discretion of the Requested State
for any other act or omission constituting an offence if the offence,
according to the laws of both Contracting States, is one for which extradition
can be granted.
3. For the purpose 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;

   (b)  the totality of the acts or omissions alleged against the person whose
        extradition is requested 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.
4. Extradition may be granted pursuant to the provisions of this Treaty
irrespective of when the offence in relation to which extradition is requested
was committed provided that if the offence was committed before this Treaty
enters into force it was at the time an offence against the laws of both
Contracting States.
Article 3
Territorial Application
1. A reference in this Treaty to the territory of a Contracting State means:

   (a)  the territory under the sovereignty of a Contracting State and the
        adjacent seas over which that Contracting State exercises sovereignty
        consistent with the 1982 United Nations Convention on the Law of the
        Sea;

   (b)  other adjacent seas and the continental shelf over which that
        Contracting State exercises sovereign rights or other rights in
        accordance with the 1982 United Nations Convention on the Law of the
        Sea, but only in relation to the exercise of those sovereign rights or
        other rights;

   (c)  vessels and aircraft owned by or registered in a Contracting State if
        any such vessel is on the high seas or if any such aircraft is in
        flight when the act or omission constituting the offence for which
        extradition is requested takes place.
2.For the purposes of this Treaty, an aircraft shall be considered to be in
flight at any time from the moment when all its external doors are closed
following embarkation until the moment when any such door is opened for
disembarkation.
Article 4
Political Offences
1. A person shall not be extradited if the offence for which his extradition
is requested is a political offence, or is by reason of the circumstances in
which it is alleged to have been committed or was committed, an offence of
political character.
2. If any question arises as to whether a case is a political offence or an
offence of a political character, the decision of the authorities of the
Requested State shall be determinative.
3. The taking or attempted taking of the life of any Head of State or any Head
of Government or of a member of his or her family shall not be deemed to be a
political offence or an offence of a political character for the purpose of
this Treaty.
Article 5
Extradition of Nationals
1. Each Contracting State shall have the right to refuse extradition of its
nationals.
2. If the Requested State does not extradite its nationals, that State shall
at the request of the Requesting State submit the case to the competent
authorities of the former for prosecution. For this purpose the files,
information and exhibits relating to the offence shall be surrendered by the
Requesting State to the Requested State.
3. Notwithstanding paragraph 2 of this Article, the Requested State shall not
be required to submit the case to its competent authorities for prosecution if
the authorities have no jurisdiction. If it does not have jurisdiction the
Requested State shall extradite the person.
Article 6
Double Jeopardy
Extradition of a person shall not be granted when he has already been tried
and discharged or acquitted by a competent tribunal, or has already undergone
punishment in the Requested State or in a third State for the act or omission
constituting the offence for which his extradition is requested.
Article 7
Death Penalty
Extradition shall not be granted if the offence with which the person sought
is charged or of which he is convicted, or for which he 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.
Article 8
Rule of Speciality
1. Subject to paragraph 3 of this Article a person extradited under this
Treaty shall not :

   (a)  be detained or tried, or be subject to any other restriction of his
        personal liberty, in the territory of the Requesting State for any
        offence committed before his extradition other than an offence for
        which the extradition was granted or any other offence described in
        Article 2 in respect of which the Requested State consents to his
        being so detained, tried or subjected to a restriction of his personal
        liberty; or

   (b)  be detained in the Requesting State for the purpose of his being
        extradited to a third State for an offence committed before his
        surrender unless the Requested State consents to his being so
        detained.
2. A request for the consent of the Requested State under this Article shall
be accompanied by a copy of any statement made by the extradited person in
respect of the offence concerned and by the documents mentioned in
subparagraphs (a), (e) and (f) of paragraph 2 of Article 11 in respect of the
offence concerned.
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 9
Exceptions to Extradition
1. Extradition shall not be granted in any of the following circumstances:

   (a)  where the person sought has acquired exemption from prosecution or
        punishment by reason of lapse of time or other lawful cause according
        to the law of either Contracting State in respect of the act or
        omission constituting the offence for which extradition is requested;

   (b)  where the act or omission constituting the offence for which
        extradition is requested is of a kind that, under the law of the
        Requested State, constitutes an offence only against military law;

   (c)  where the person whose extradition is requested is liable to be tried
        by a court or tribunal that is especially established for the purpose
        of trying his case or is only occasionally, or under exceptional
        circumstances, authorised to try such cases or his extradition is
        requested for the purpose of his serving a sentence imposed by such a
        court or tribunal;

   (d)  where the Requested State has substantial grounds for believing that
        the request for extradition has been made for the purpose of
        prosecuting or punishing the person on account of his race, religion,
        nationality or political opinions; or

   (e)  where the Requested State has substantial reasons for believing that
        the person whose extradition is requested will be subjected to torture
        or to cruel, inhuman or degrading treatment or punishment.
2. Extradition may be refused in any of the following circumstances:

   (a)  where an investigation is in progress or a prosecution is pending in
        the Requested State in respect of the offence for which the
        extradition of the person is requested;

   (b)  where 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
        requested, the extradition of that person would be unjust, oppressive
        or incompatible with humanitarian considerations;

   (c)  in the case of a person convicted and sentenced in respect of an
        offence, less than six months of the sentence of imprisonment or any
        other form of deprivation of liberty imposed in the Requesting State
        for the offence for which extradition is requested remains to be
        served, taking into account the serious nature of the offence;

   (d)  if the competent authorities of the Requested State have decided in
        the public interest to refrain from prosecuting the person for the
        offence in respect of which extradition is requested; or

   (e)  where 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.
Article 10
Provisional Arrest
1. In case of urgency a Contracting State may apply by means of the facilities
of the International Criminal Police Organization 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 11 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 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 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 his arrest if a request for his
extradition accompanied by the documents specified in Article 11 has not been
received.
5. 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 11 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 13.
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 a person has been convicted in his 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 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 otherwise than in his
        absence-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 otherwise than in his
        absence 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, 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

   (f)  in all cases-by as accurate a description as possible of the person
        sought 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 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 sought consents
to an order for his extradition being made.
4. The documents submitted in support of a request for extradition shall be
accompanied by a translation into the language of the Requested State.
Article 12
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 of
this Article the Requested State shall notify the Requesting State as soon as
practicable.
Article 13
Authentication of Documents
1. A document that is furnished in support of a request for extradition shall
be admitted, if authenticated, in any extradition proceedings in the Requested
State.
2. A document is authenticated for the purpose of this Treaty, if:

   (a)  it purports to be signed or certified by a Judge, Magistrate or other
        competent authority in or of the Requesting State; and

   (b)  it is sealed with the official seal of the Requesting State or of a
        Minister of State, or of a Department or Ministry of the Requesting
        State.
Article 14
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. If the request is agreed to, the Requesting State shall be informed of the
place and date of surrender.
3. Subject to paragraph 4 of this Article the Requesting State shall remove
the person from 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 extradition 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 State. The two States shall decide on a new date for surrender and the
provisions of paragraphs 2 and 3 of this Article shall apply.
Article 15
Postponement of Surrender
The Requested State may postpone the surrender of a person in order to proceed
against him, or so that he may serve a sentence for an offence other than an
offence constituted by an act or omission for which extradition is requested
and, where the Requested State so postpones the surrender, it shall advise the
Requesting State accordingly.
Article 16
Handing over of Property
1. When the extradition of a person is granted, the Requested State shall, in
so far as its law permits and subject to the rights of third parties, at the
request of the Requesting State, seize and hand over property:

   (a)  which may serve as proof of the offence; or

   (b)  which has been acquired as a result of the offence.
2. The property mentioned in paragraph 1 of this Article may be handed over
even if extradition, having been agreed to, cannot be carried out owing to the
death or escape of the person sought.
3. If the property in question is liable to seizure or confiscation in the
territory of the Requested State that State may, in connection with pending
proceedings, temporarily retain it or hand it over on condition that it is
returned.
4. Any rights which the Requested State or third parties may have acquired in
the said property shall be preserved. Where these rights exist, the property
shall be returned without charge to the Requested State as soon as possible
after the trial if that State so requests.
Article 17
Multiple Requests
1. Where requests are received from two or more States for the extradition of
the same person either for the same offence, or for different offences, 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 relevant circumstances and, in particular, to:

   (a)  if the requests relate to different offences, 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;

   (e)  the ordinary place of residence of the person; and

   (f)  the possibility of subsequent extradition to another State.
Article 18
Transit
1. Where a person is to be extradited for an offence by a third State to a
Contracting State through the territory of the other Contracting State, the
first mentioned Contracting State 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 State shall grant the request
unless 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 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 his 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 19
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.
3. The Requesting State shall bear the expenses incurred in conveying the
person from the territory of the Requested State.
Article 20
Amendments
This Treaty may be amended by agreement in writing between the Contracting
States.
Article 21
Entry into Force 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.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their
respective Governments, have signed this Treaty.
DONE in duplicate at Jakarta on the Twenty-second day of April 1992 in the
English and Indonesian languages, each text being equally authentic.
FOR AUSTRALIA FOR THE REPUBLIC OF INDONESIA
  PHILIP FLOOD                        ALI ALATAS