Commonwealth Numbered Regulations

1988 No. 295 EXTRADITION (REPUBLIC OF PORTUGAL) REGULATIONS - SCHEDULE

SCHEDULE
Regulation 4
TREATY ON EXTRADITION BETWEEN AUSTRALIA AND THE REPUBLIC OF PORTUGAL Australia
and the Republic of Portugal, 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 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 before a competent authority or the imposition of a
sentence by such an authority or the enforcement of such 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 or other measure of deprivation of liberty for a
maximum period of at least one year. 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 or other measure of deprivation of liberty,
extradition shall be granted only if a period of at least six months
imprisonment or other measure of deprivation of liberty remains to be served.
2. For the purpose of this Article, in determining whether an offence 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 requested 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 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:

   (a)  if the person whose extradition is requested is a national of the
        Requesting State; or

   (b)  if the law of the Requested State provides for the punishment of an
        offence committed outside its territory in similar circumstances. 4.
        Where extradition of a person is requested for an offence against a
        law relating to taxation, duties, customs, foreign exchange control,
        extradition shall not be refused on the ground that the law of the
        Requested State does not impose the same kind of tax or duty or does
        not contain a tax, duty, customs, or exchange regulation of the same
        kind as the law of the Requesting State. 5. 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:

   (a)  it was an offence in the Requesting State at the time of the acts or
        omissions constituting the offence; and

   (b)  the acts or omissions alleged would, if they had taken place in the
        Requested State at the time of the making of the request for
        extradition, have constituted an offence against the law in force in
        that State.
ARTICLE 3
NATIONALS 1. The Requested State shall have the right to refuse to extradite
its nationals, and shall refuse to do so, if its constitution or its law so
require. 2. Where the Requested State refuses to extradite a person on the
ground that the person is a national of the Requested State, it shall, if the
Requesting State 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 requested may be taken.
ARTICLE 4
EXCEPTIONS TO EXTRADITION 1. Extradition shall not be granted if:

   (a)  the offence for which extradition is requested is regarded by the
        Requested State as a political offence, provided that offences which
        are not political offences according to-

        (i)    the law of the Requested State; or

        (ii)   any international convention to which both Contracting Parties
               are party,
Shall not be regarded as political offences for the purposes of this Treaty;
(b) there are substantial grounds for believing that a request for extradition
for an ordinary criminal offence has been made for the purposes 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)  the offence for which extradition is requested is punishable by death;

   (d)  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;

   (e)  final judgement has been rendered in the Requested State or in a third
        state in respect of the offence for which the extradition is
        requested, and

        (i)    the judgement resulted in the person's acquittal;

        (ii)   the term of imprisonment to which the person was sentenced has
               been completely enforced, or is wholly or, with respect to the
               part not enforced, the subject of a pardon or an amnesty; or

        (iii)  the court convicted the person without imposing a penalty;

   (f)  the person whose extradition is requested is the subject of an amnesty
        in respect of the offence for which extradition is requested, or has,
        according to the law of either Contracting Party, become immune from
        prosecution or punishment by reason of lapse of time, or for any other
        reason;

   (g)  the person, on being extradited to the Requesting State, would be
        liable:

        (i)    to be tried or sentenced in that State by a court or tribunal
               that has been specially established for the purpose of trying
               the person's case, or that is only occasionally, or under
               exceptional circumstances, authorised to try persons accused of
               the offence for which extradition is requested; or

        (ii)   to serve a sentence imposed by such a court or tribunal. 2. The
               Requested State shall have the right to refuse extradition if:

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

   (b)  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;

   (c)  a prosecution in respect of the offence for which extradition is
        requested is pending in the Requested State against the person whose
        extradition is requested;

   (d)  the person sought has been convicted in that person's absence of the
        offence for which extradition is requested, unless the Requesting
        State provides an assurance, which is considered by the Requested
        State to be sufficient, that the person sought shall, upon surrender,
        have a right to appeal against the conviction or to seek a new trial;
        or

   (e)  the offence for which extradition is requested is punishable by life
        imprisonment. For the purposes of this Treaty, an offence shall not be
        regarded as punishable by life imprisonment if the Requesting State
        gives the Requested State an assurance that, notwithstanding the
        imposition of a sentence of life imprisonment, the person could be
        released; 3. The Requested State may recommend to the Requesting State
        that a request for extradition be withdrawn, specifying the reasons
        therefor, where it considers, taking into account the age, health or
        other personal circumstances of the person sought, that extradition
        should not be requested.
ARTICLE 5
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 personal liberty, in the Requesting State for any
offence committed before the extradition other than:

   (a)  an offence for which extradition was granted; or

   (b)  any other extraditable offence in respect of which the Requested State
        consents. 2. A request for the consent of the Requested State under
        this Article shall be accompanied by the documents mentioned in
        paragraph 2 of Article 8. 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 Requesting State after leaving it. 4. If the
        description of the offence charged in the Requesting State is altered
        in the course of proceedings, the person extradited shall be proceeded
        against or sentenced only in so far as the offence under its new
        description is an offence for which extradition could be granted
        pursuant to this Treaty.
ARTICLE 6
RE-EXTRADITION TO A THIRD STATE 1. Where a person has been surrendered to the
Requesting State by the Requested State, the Requesting State shall not
extradite that person to any third state for an offence committed before that
person's surrender unless:

   (a)  the Requested State consents to that re-extradition; or

   (b)  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 surrendered by the Requested State
        or has returned to the Requesting State after leaving it. 2. In
        relation to any consent pursuant to sub-paragraph 1 (a) of this
        Article the Requested State may request the production of the
        documents mentioned in Article 8 as well as any declaration made by
        the extradited person in respect of the re-extradition.
ARTICLE 7
CONCURRENT REQUESTS 1. If extradition is requested concurrently by a
Contracting Party and by one or more other States, whether for the same or for
different acts or omissions, the Requested State shall determine to which of
those States the person is to be extradited having regard to the
circumstances, and in particular, the existence of other treaties binding on
the Requested State, the relative gravity of the offences and where they were
committed, the respective dates of the requests, the nationality of the person
and the possibility of subsequent re-extradition.
ARTICLE 8
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 9. 2. A request for extradition
shall be accompanied by:

   (a)  if the person is accused of an offence-the original and two copies of
        the warrant for the arrest of the person, a statement of each offence
        for which extradition is requested 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 that person's absence of an
        offence-a judicial or other document, or a copy thereof, authorising
        the apprehension of the person, a statement of each offence for which
        extradition is requested, a statement of the acts or omissions which
        are alleged against the person in respect of each offence and a
        statement of the relevant law that ensures the right to appeal against
        the decision or to seek a new trial;

   (c)  if the person has been convicted of an offence otherwise than in that
        person's absence-documents evidencing 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 that
        person's absence but no sentence has been imposed-documents evidencing
        the conviction and a statement affirming that it is intended to impose
        a sentence;

   (e)  in all cases-a statement of the relevant law creating the offence,
        including any provision relating to the limitation of proceedings and
        a statement of the penalty that can be imposed for the offence;

   (f)  in all cases-a description which is as accurate as possible of the
        person sought together with any other information which may help to
        establish the person's identity and nationality; and

   (g)  if applicable, a statement concerning acts which have prevented the
        person from becoming immune from prosecution or sentence by reason of
        lapse of time in relation to the offence for which extradition is
        requested, according to the law of the Requesting State; 3. A request
        for extradition emanating from Australia shall provide:

   (a)  matter which is as precise as possible to identify the person whose
        extradition is requested;

   (b)  matter to demonstrate that the person sought is subject to the
        criminal jurisdiction of Australia, or of a part thereof;

   (c)  in the case of an offence committed in a third State, matter to
        demonstrate that the third State does not claim the person sought for
        that offence;

   (d)  in cases of conviction in absentia information that the person sought
        may appeal against the conviction or seek a new trial;

   (e)  an assurance that the person sought will be afforded the protection
        provided for by Articles 5 and 6 of this Treaty. 4. 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 the preceding paragraphs of
        this Article have not been complied with, provided that the person
        consents to an order for extradition being made.
ARTICLE 9
AUTHENTICATION OF SUPPORTING DOCUMENTS 1. A document that, in accordance with
Article 8, accompanies a request for extradition shall be admitted, if
authenticated, in any extradition proceedings in 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 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 10
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, 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. The fact that the additional
information furnished is not sufficient in accordance with this Treaty or is
not received within the time initially specified, or within such further time
as the Requested State specifies shall not preclude the Requesting State from
making a fresh request for the extradition of the person. 3. If a person who
is under arrest in relation to extradition is released from custody as a
consequence of the failure of the Requesting State to provide additional
information requested pursuant to paragraph 1 of this Article, the Requested
State shall notify the Requesting State as soon as practicable.
ARTICLE 11
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 for the provisional arrest of the person sought,
pending the presentation of the request for extradition through the diplomatic
channel. The application may be transmitted by post or telegraph or by any
other means affording a record in writing. 2. The 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 paragraph 2 of Article 8
authorising the apprehension of the person, 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 an application for provisional arrest 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
application. 4. A person arrested upon an application for provisional arrest
may be set at liberty upon the expiration of 30 days from the date of the
arrest if a request for extradition 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 12
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. Reasons shall be given for refusal, in
whole or in part, of a request. 2. Where extradition is granted, the person
shall be removed from the Requested State from a point of departure in that
State convenient to the Contracting Parties. 3. 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 person may be released and the Requested State may refuse to
extradite the 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 mutually decide upon a new date of surrender, and
the provisions of paragraph 3 of this Article shall apply.
ARTICLE 13
POSTPONED AND TEMPORARY SURRENDER 1. The Requested State may postpone the
surrender of a person 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. In such cases the
Requested State shall advise the Requesting State accordingly. 2. To the
extent permitted by its law, the Requested State may temporarily surrender the
person sought to the Requesting State in accordance with conditions to be
determined between the Contracting Parties.
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.
The property mentioned in paragraph 1 of this Article 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. 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
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
Contracting Party to which the person is to be extradited shall request the
other Contracting Party to permit the transit of that person through its
territory. 2. Upon receipt of such a request the Requested Contracting Party
shall grant the request unless it is satisfied that there are reasonable
grounds for refusing to do so, provided that in any case, the transit of a
person may be refused on any ground on which the extradition of that person
might be refused under this Treaty. 3. Permission for the transit of a person
shall, subject to the law of the Requested Contracting Party, 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 that person's transportation is not continued within
a reasonable time. 5. The Contracting Party to which the person is being
extradited shall reimburse the other Contracting Party for any expense
incurred by that other Contracting Party in connection with the transit.
ARTICLE 16
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 and detention of the person whose extradition is requested until the
person 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 17
LANGUAGE
A Contracting Party which sends to the other Contracting Party a document in
accordance with this Treaty that is not in the language of the other
Contracting Party shall provide a translation of the document into the
language of the other Contracting Party.
ARTICLE 18
RESOLUTION OF DOUBT
Any doubts and difficulties arising out of the application and interpretation
of this Treaty shall be resolved by consultation between the Contracting
Parties.
ARTICLE 19
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. This Treaty shall apply to any Territory
under the administration of the Republic of Portugal thirty days after the
date of notification by the Republic of Portugal to Australia that the
constitutional requirements for the entry into force of the Treaty in relation
to that Territory have been complied with. 3. On its entry into force this
Treaty shall, as between Australia and the Republic of Portugal, terminate and
replace:

   (a)  the Treaty between the United Kingdom of Great Britain and Ireland and
        Portugal for the Mutual Extradition of Fugitive Criminals, done at
        Lisbon on 17 October 1892; and

   (b)  the Supplementary Convention to the aforesaid Treaty done at Lisbon on
        20 January 1932 4. Either Contracting Party 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 authorized
        thereto by their respective Governments, have signed this Treaty. DONE
        at Lisbon on the 21st day of April One Thousand, nine hundred and
        eighty seven in English and Portuguese, Both texts being equally
        authentic.
AUSTRALIA                                       THE REPUBLIC OF PORTUGAL

LIONEL BOWEN                                              AZEVEDO SOARES