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1987 No. 328 EXTRADITION (KINGDOM OF THE NETHERLANDS) REGULATIONS - SCHEDULE
SCHEDULE
Regulation 4
TREATY ON EXTRADITION BETWEEN AUSTRALIA AND
THE KINGDOM OF THE NETHERLANDS Australia and the Kingdom of the Netherlands,
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 however described which are punishable under the laws of
both Contracting Parties by imprisonment or other deprivation of liberty 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 on account of such an
offence who is wanted for the enforcement of a sentence, extradition shall be
granted only if a deprivation of liberty has been imposed and a period of at
least six months of such deprivation of liberty 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 surrender
is sought shall be taken into account without reference to the elements of the
offence prescribed by the law of the Requesting State. 4. The fact that an
offence is considered to be of a fiscal character shall not of itself be a
reason to refuse extradition. 5. Where extradition is sought for an offence
against a law relating to taxation, customs, duties or other revenue matter,
extradition may 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 regulation of the same kind as the law of the Requesting State.
6. This Treaty shall apply to offences encompassed by this Article committed
before as well as after the date this Treaty enters into force.
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 or an offence connected with 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 nor an
offence against the law relating to genocide;
(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 the person sought would have become immune from prosecution, or
enforcement of a penalty, for the offence for which his extradition is
requested under the laws of the Requested State relating to prior
acquittal, conviction or sentencing, or lapse of time. 2. Extradition
may be refused in any of the following circumstances:
(a) when the person whose surrender 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 Party so requests and
the laws of the Requested State allow, submit the case to the
competent authorities in order that the prosecution of the person in
respect of all or any of the offences for which extradition has been
sought may be brought in accordance with the law and practice of that
State;
(b) 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;
(c) where the offence with which the person sought is charged carries the
death penalty unless the Requesting State undertakes that the death
penalty will not be imposed or, if imposed, will not be carried out;
(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
(e) 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, in particular the age or
health of the person whose extradition is requested, the extradition
of that person would be incompatible with humanitarian considerations.
ARTICLE 4
Postponement of extradition The Requested State may postpone consideration of
a request for the extradition of a person or his surrender 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 his extradition is
requested. The Requested State shall so inform the Requesting State.
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 duly authenticated. 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 (including time and place) 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 but no sentence has
been imposed at the time of the request-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 relevant provision of the statute, if
any, creating the offence or a statement of the relevant law as to the
offence and in either case a statement of the maximum punishment that
can be imposed for that offence and of any applicable time limitation;
(e) in all cases-by as accurate a description as possible of the person
claimed, together with any other information which will help to
establish his identity and nationality. 3. 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. Subject to the
laws of the Requested State, if the Requested State so declares, the
Requesting State shall in such cases not be bound by the provisions of
paragraphs 1 and 2 of Article 12. 4. 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, if requested, provide a translation of the document into the
language of the other Contracting Party.
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 duly authenticated, in any extradition proceedings in the
Requested State. 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 an
official in or of the Requesting State; and
(b) it purports to be authenticated by a public seal of an official,
Department, or Minister of the Requesting State.
ARTICLE 7
Additional information 1. If the Requested State considers that the
information furnished in support of the request for 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, the Requested
State shall notify the Requesting State as soon as practicable.
ARTICLE 8
Provisional arrest 1. In case of urgency a Contracting Party through its
appropriate authority, 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. 2. The application
shall contain a description of the person sought, an indication of intention
to request the extradition of the person sought, a statement of the existence
and terms of a warrant of arrest or a judgment of conviction against the
person, a statement of the maximum punishment that can be imposed or the
punishment that has been imposed for the offence, and a statement of the acts
or omissions (including time and place) alleged to constitute the offence. 3.
The Requested State shall promptly inform the Requesting State of any action
taken on the application. 4. A person arrested upon such an application shall
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) 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; and
(e) the ordinary place of residence of the person.
ARTICLE 10
Surrender of person to be extradited 1. Australia shall not be required to
make a decision on a request for extradition before the expiration of fifteen
days from the date on which the person has been held judicially to be liable
to extradition or if appeal proceedings have been brought, before the
expiration of fifteen days from the decision of the court which hears the
appeal, or, where a further appeal has been brought from that decision to
another court, the date of the decision of the other court. 2. 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 any complete or partial rejection of an
extradition request. 3. 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. 4. 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.
5. If circumstances beyond its control prevent a Party from surrendering or
removing the person to be extradited it shall notify the other Party. The two
Contracting Parties shall agree upon a new date of surrender and the
provisions of paragraph 4 of this Article shall apply.
ARTICLE 11
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.
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 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 articles so
surrendered shall be returned to the Requested State free of charge if that
State so requests.
ARTICLE 12
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 his personal liberty, in the territory of the Requesting State
for any offence committed before his extradition other than:
(a) an offence for which his extradition was granted or any other offence
described in Article 1 of which he could be convicted upon proof of
the facts upon which the request for his extradition was based
provided that that offence does not carry a penalty which is more
severe than that which could be imposed for the offence for which
extradition was sought; or
(b) any other offence in respect of which the Requested State consents, in
accordance with its law, 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 does not apply if the
person has had an opportunity to leave the Requesting State and has
not done so within 45 days of 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 13
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
extradite that person to any third state for an offence committed before his
surrender unless:
(a) the Requested State consents to such extradition; or
(b) the person has had an opportunity to leave the Requesting State and
has not done so within forty five days of discharge in respect of the
offence for which that person was surrendered by the Requested State
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 5.
ARTICLE 14
Transit 1. Where a person is to be extradited to a Contracting Party from a
third state or from a Contracting Party to a third state through the territory
of the other Contracting Party, the Contracting Party to which or from 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. 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, the Contracting Party 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 Party to which or from 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, should the other Contracting Party request reimbursement.
ARTICLE 15
Representation and expenses 1. The Requested State shall review for legal
sufficiency documentation in support of an extradition request prior to
submission to its judicial authorities and shall deal with the request of the
Requesting State before such authorities. 2. The Requested State shall bear
the expenses incurred in its territory in the arrest of the person whose
extradition is requested, in the maintenance in custody of the person until he
is surrendered to a person nominated by the Requesting State, and in relation
to any legal proceedings in the Requested State arising out of the request for
extradition. 3. The Requesting State shall bear the expenses incurred in
conveying the person from the territory of the Requested State.
ARTICLE 16
Mutual assistance in criminal matters Subject to any further treaty between
them, the Contracting Parties agree to afford each other, in accordance with
their national law, the widest measure of mutual assistance in criminal
matters, where such assistance is requested by their competent judicial
authorities for the purpose of the investigation or prosecution of any offence
under their jurisdiction.
ARTICLE 17
Entry into force 1. This Treaty shall enter into force on the first day of the
second month following the date on which the Contracting Parties shall have
notified each other that their legal requirements have been complied with. 2.
On its entry into force this Treaty shall, as between Australia and the
Kingdom of the Netherlands, terminate and replace the Treaty between the
United Kingdom and the Kingdom of the Netherlands for the extradition of
criminals, signed at London, September 26, 1898. 3. If the notification from
the Kingdom of the Netherlands under paragraph 1 of this Article does not
provide for application of this Treaty to the Kingdom as a whole, the Treaty
second-mentioned in paragraph 2 of this Article will remain in force between
Australia and the Kingdom of the Netherlands in respect of that part of the
Kingdom of the Netherlands to which the notification states that this Treaty
does not apply.
ARTICLE 18
Territorial application As regards the Kingdom of the Netherlands, this Treaty
shall apply to the territory of the Kingdom as a whole, unless the
notification of the Kingdom of the Netherlands, referred to in Article 17,
shall provide otherwise.
ARTICLE 19
Termination 1. Either Contracting Party may terminate this Treaty at any time
by written notification to the other Party. The termination shall be effective
six months after the date of receipt of such notice. 2. Termination of this
Treaty by the Kingdom of the Netherlands may be limited to one of its
constituent parts. IN WITNESS WHEREOF the undersigned, being duly authorised
thereto, have signed this Treaty. TEN BLIJKE WAARVAN de ondergetekenden,
daartoe naar behoren gemachtigd, dit Verdrag hebben ondertekend. DONE at The
Hague on the fifth day of September one thousand, nine hundred and eighty five
in the English and Dutch languages both texts being equally authentic. GEDAAN
te S-Gravenhage op 5 September 1985 in de Nederlandse en de Engelse taal,
zijnde beide teksten gelijkelijk authentiek.
For Australia, For the Kingdom of the Netherlands,
Voor Australi;aue, Voor het Koninkrijk der Nederlanden,
LIONEL BOWEN VAN DEN BROEK
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