Commonwealth Numbered Regulations

1990 No. 137 EXTRADITION (PRINCIPALITY OF MONACO) REGULATIONS - SCHEDULE

                              SCHEDULE                            Regulation
5
TREATY ON EXTRADITION
BETWEEN THE GOVERNMENT OF AUSTRALIA
AND THE GOVERNMENT
OF HIS SERENE HIGHNESS THE PRINCE OF MONACO
The Government of Australia and the Government of His Serene Highness the
Prince of Monaco,
DESIRING to make more effective the co-operation of the two States 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 found in the requested State 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 States by imprisonment or other deprivation of liberty for a maximum
period of at least one year 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 both States 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 against the laws of both States, 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 States 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 the same offence committed outside its territory. 5. The
provisions of this Treaty shall also apply to offences committed before its
entry into force provided that: a) they were punishable in the requesting
State at the time that the acts and omissions which constituted them were
committed; and b) that such acts and omissions would constitute an offence
under the law of the requested State if they were committed in the territory
of that State at the time when the request for extradition is made.
Article 3
Extradition of nationals 1. The Principality of Monaco shall not surrender its
nationals; Australia may, in its discretion, decline to surrender Australian
nationals. 2. Subject to being able to exercise jurisdiction, the Government
of the requested State shall, where surrender is refused pursuant to paragraph
1, at the request of the government of the requesting State, submit the case
to its competent authorities to permit the question of prosecution to be
considered. 3. In such a case, all relevant information and evidence shall be
transmitted, free of charge, to the government of the requested State and that
government shall advise the government of the requesting State of the decision
taken on the request.
Article 4
Exceptions to the obligation to extradite 1. Extradition shall not be granted
in any of the following circumstances: a) when the offence for which
extradition is requested is regarded by the government of the requested State
as being 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 of 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 only under military
law; d) where the person whose extradition is requested has, according to the
law of either State, become immune from prosecution or punishment by reason of
lapse of time; e) when the competent authorities of the government 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; f) 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; g) 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 h) 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 surrender is sought. 2. Extradition may be
refused in any of the following circumstances: a) if 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,
unless the government of the requesting State gives such assurance as the
government of the requested State considers sufficient that the death penalty
will not be carried out; b) when the offence for which extradition is
requested is regarded by the law of the requested State as a revenue offence.
For the purpose of this exception, "revenue offence" means an offence in
connection with taxes, customs or other duties or exchange control; c) if the
surrender is likely to have exceptionally serious consequences for the person
whose extradition is sought particularly as regards that person's age or state
of health. 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 5
Postponement of surrender
The government of the requested State may, after making its decision on the
request for extradition, 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 an offence constituted by an act
or omission for which extradition is requested and where the government of the
requested State so postpones the extradition it shall advise the government of
the requesting State accordingly.
Article 6
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 duly authenticated. 2. The request for extradition shall be accompanied: a)
if the person is accused or has been convicted in his absence of an offence -
by a warrant of arrest, a judicial or other document, including a judgement,
authorising the apprehension of the person or a copy of any such document, a
statement of each offence for which extradition is sought and a statement of
the acts or omissions which are alleged against the fugitive in respect of
each offence; b) 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; c) if the person has been convicted of an
offence in Australia 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; d) in all cases by a copy of the provisions of
the relevant enactments or, where this is not possible, a statement of the
relevant law creating the offence including any law relating to the limitation
of proceedings or punishment, as the case may be, and a statement of the
punishment that can be imposed for the offence; and e) in all cases by 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. 3. The documents submitted in support of a request for
extradition shall be accompanied by a translation into the language of the
requested State.
Article 7
Authentication of supporting documents 1. A document that, in accordance with
article 6, accompanies a request for extradition shall be admitted in evidence
if duly authenticated. 2. A document is duly 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 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 8
Additional information 1. If the government of the requested State considers
that the information furnished in support of the request for the extradition
of a person is not sufficient to allow that government to make a decision
pursuant to this Treaty, it 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 government of
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, the government of the requested State shall notify the government
of the requesting State as soon as practicable.
Article 9
Provisional arrest 1. In case of urgency the government of either State may
apply by means of the facilites of the International Criminal Police
Organisation (INTERPOL) or by any other means affording evidence 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 and terms of a warrant of arrest or a judgement of conviction
against the person, a statement of the punishment that can be imposed or has
been imposed for the offence, 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 government of the requested State
shall, if appropriate, take the necessary steps to secure the arrest of the
person claimed and the government of the requesting State shall be promptly
notified of the result of its request. 4. A person arrested and in custody
upon such an application shall be set at liberty upon the expiration of
forty-five days from the date of that person's arrest if a request for
extradition, supported by the documents specified in article 6, has not been
received. 5. Release shall not prejudice re-arrest and extradition if a
request for extradition 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 government of the requested State
shall determine to which of those States the person is to be extradited and
shall notify the governments of the requesting States of its decision. 2. In
determining to which State a person is to be extradited, the government of 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 extradition to a third State.
Article 11
Surrender of person to be extradited 1. The government of the requested State
shall as soon as a decision on the request for extradition has been made,
communicate that decision to the government of 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
government of the requesting State. 3. The government of the requesting State
shall remove the person from the territory of the requested State within such
reasonable period as the government of the last-mentioned State specifies and,
if the person is not removed within that period, the government of the
requested State shall, subject to paragraph 4, set the person at liberty and
may refuse to extradite that person 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 12
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 government of the requesting State so requests, be surrendered if
extradition is granted. 2. Subject to the qualifications of paragraph 1 of
this article, the above-mentioned property shall, if the government of the
requesting State so requests, be surrendered to the government of 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. Where the
law of the requested State or the rights of third parties so require, any
property so surrendered shall be returned to the government of the requested
State free of charge if that government so requests.
Article 13
Rule of speciality 1. Subject to paragraph 3, 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 before the extradition other than: (i) an offence for
which extradition was granted; or (ii) any other extraditable offence in
respect of which the government of the requested State grants consent. 2. A
request for the consent of the government of the requested State under this
article 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. 3. Paragraph 1 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 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
government of the requesting State by the government of the requested State,
the first-mentioned government shall not surrender that person to any third
State for an offence committed before that person's surrender unless: a) the
government of the requested State consents to that surrender; or b) the person
has had an opportunity to leave 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 government of the
requested State may request the production of the documents mentioned in
article 6.
Article 15
Transit 1. Where a person is to be extradited to one of the two States from a
third State through the territory of the other, the government of the State to
which the person is to be extradited shall request the government of the 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 government of the State 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 government of the requesting State shall advise the
government of 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 government of the requesting
State shall forward a normal transit request; b) When a landing is scheduled,
the government of the requesting State shall forward a normal transit request.
Article 16
Expenses
Except for the costs of conveying the person extradited and those occasioned
by transit, which shall be borne by the government of the requesting State,
expenses resulting from the extradition shall be borne by the government of
the State in whose territory they were incurred.
Article 17
Entry into force and termination 1. This Treaty shall enter into force thirty
days after each contracting Party has notified the other that the
constitutional requirements for the entry into force of this Treaty have been
complied with. 2. Either contracting Party may terminate this Treaty at any
time by forwarding through the diplomatic channel written notice of
termination and this Treaty 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, have signed
this Treaty.
DONE at MONACO in duplicate on the nineteenth day of October nineteen hundred
and eighty-eight, in English and French, both texts being equally authentic.
For the Government of                            For the Government of

Australia                                        His Serene Highness

Lionel Bowen                                     the Prince of Monaco
Jean Ausseil