Commonwealth Numbered Regulations

1988 No. 52 EXTRADITION (SPAIN) REGULATIONS - SCHEDULE

SCHEDULE
Regulation 4
TREATY ON EXTRADITION BETWEEN AUSTRALIA AND SPAIN Australia and Spain,
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 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.
Article II
EXTRADITABLE OFFENCES
1. For the purpose of this Treaty, extraditable offences are offences however
described which are punishable under the laws of both Contracting States (both
at the time of the commission of the offence as well as at the time of the
extradition request) by imprisonment, detention order 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 of such an
offence who is wanted for the enforcement of a sentence of imprisonment,
detention order or other deprivation of liberty, extradition shall be granted
only if a period of at least six months of the penalty remains to be served.
2. For the purpose of this Article 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 or similar
terminology.
3. For the purpose of this Article in determining whether an offence is an
offence against the law of both Contracting States, the totality of the acts
or omissions alleged against the person whose extradition is requested shall
be taken into account without reference to the elements of the offence
prescribed by the law of the requesting State.
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 an offence committed outside its
territory in similar circumstances. Where the law of the requested State does
not so provide the requested State may, in its discretion, grant extradition.
5. Extradition shall be granted for fiscal offences. 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 or exchange
regulation of the same kind as the law of the requesting State.
Article III
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. Reference to a political offence for the purpose of this
        sub-paragraph shall not include the taking or attempted taking of the
        life of a Head of State nor a member of his or her family, nor an
        offence against the law relating to genocide, nor any offence in
        respect of which the Contracting States have an obligation pursuant to
        an international agreement, to which they are both parties, to submit
        the case to their competent authorities for decision as to prosecution
        if extradition is not granted, nor any offence that the laws of both
        Contracting States provide shall not be regarded as a political
        offence;

   (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 States;

   (d)  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
        extradition is requested; or

   (e)  where the person whose extradition is requested has, according to the
        law of either Contracting State, become immune from prosecution or
        punishment by reason of lapse of time, or criminal responsibility has
        been extinguished for any other reason.
2. Extradition may be refused in any of the following circumstances:

   (a)  when the person whose extradition is requested is a national of the
        requested State. Nationality shall be determined as at the time of the
        decision concerning extradition. Where the requested State refuses to
        extradite a national of that State it shall, if the other State so
        requests and the law of the requested State allows, 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 if that is
        considered appropriate;

   (b)  when the competent authorities of the requested State, having
        concurrent jurisdiction, have decided to refrain from prosecuting the
        person whose extradition is requested for the offence in respect of
        which extradition is requested;

   (c)  where the offence of which the person requested is accused or of which
        the person is convicted, or any other offence for which the person may
        be detained or tried in accordance with this Treaty, carries the death
        penalty under the law of the requesting State unless that State offers
        sufficient guarantees that, under no circumstances, will the death
        penalty be carried out;

   (d)  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;

   (e)  when 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; or

   (f)  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 exceptional circumstances of the case, the extradition
        would be incompatible with humanitarian considerations.
Article IV
POSTPONEMENT OF EXTRADITION
The requested State may postpone the extradition 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 for which extradition is requested and where the
requested State so postpones the extradition it shall advise the requesting
State.
Article V
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. A request for extradition shall be accompanied by the following documents
and information:

   (a)  if the person is accused of an offence - 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 requested and a statement of the acts
        or omissions which are alleged against the person in respect of each
        offence;

   (b)  if the person has been convicted of an offence - 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 - such documents as provide evidence of the conviction
        and a statement affirming that it is intended to impose a sentence;

   (d)  in all cases - a copy of the relevant provision of the law including
        any law relating to the limitation of proceedings, as the case may be,
        and a statement of the punishment or detention order that can be
        imposed for the offence; and

   (e)  in all cases - information or documentation which will help to
        establish the identity of the person whose extradition is requested.
3. Subject to 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 paragraphs 1 and 2 of this Article have not been complied
with, provided that the person sought consents to an order for extradition
being made.
4. A Contracting State which sends to the other Contracting State a document
in accordance with this Treaty that is not in the language of the other State
shall, if requested, provide a translation of the document into the language
of the other Contracting State.
Article VI
AUTHENTICATION OF DOCUMENTS
1. A document that, in accordance with Article V, accompanies a request for
extradition shall be admitted, if duly authenticated, in any extradition
proceedings in the territory of 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
        officer in or of the requesting State; and

   (b)  it purports to be authenticated by an official or public seal of the
        requesting State.
Article VII
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 to fulfil the
requirements of this Treaty, 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 continuation of the extradition proceedings or the
making of 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 VIII
PROVISIONAL ARREST
1. In case of urgency a Contracting State 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 for provisional arrest shall give particulars of the
definitive court decision or warrant of arrest, a description of the offence
involved, when and where it was committed and the details of the identity of
the person sought, and shall offer to submit subsequently an extradition
request.
3. On receipt of such 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
request.
4. A person arrested upon such an application shall be set at liberty upon the
expiration of forty days from the date of that person's arrest if a request
for that person's extradition, supported by the documents specified in Article
V, has not been received.
5. The release of a person pursuant to paragraph 4 of this Article shall not
prevent the institution or continuation of proceedings with a view to
extraditing the person sought if the request is subsequently received.
Article IX
CONFLICTING EXTRADITION 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 requestied
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 X
SURRENDER OF PERSON TO BE EXTRADITED
1. Neither Contracting State shall be required to make a decision on a request
for extradition before the expiration of twenty-one days from the date on
which the person has been held by final judicial decision to be liable to
extradition.
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 a point of departure in the territory of the requested 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 requested State
specifies. If the person is not removed within that period, the requested
State may refuse to grant extradition for the same offence.
5. 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 Contracting States shall agree upon a new date of surrender, and
the provisions of paragraph 4 of this Article shall apply.
Article XI
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 provisions 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 XII
RULE OF SPECIALITY
A person who has been extradited shall not be proceeded against, sentenced or
detained nor be subjected to any other restriction of personal liberty for any
acts or omissions committed prior to that person's surrender other than that
for which the person was extradited, except in the following cases:

   (a)  when the requested State consents. A request for consent shall be
        accompanied by the documents or information mentioned in Article V;

   (b)  when that person having had the opportunity to leave the territory of
        the requesting State has not done so within forty-five days of that
        person's final discharge, or has returned to that territory after
        leaving it.
Article XIII
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 surrender that person to any
third state for an offence committed before that person's surrender unless:

   (a)  the requested State consents; 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 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 or
information mentioned in Article V.
Article XIV
TRANSIT
1. Where a person is to be extradited to a Contracting State from a third
state or from a Contracting State to a third state through the territory of
the other Contracting State, the Contracting State to which or from which the
person is to be extradited 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 it is satisified that there are reasonable grounds for refusing to do
so. The requested State may request all or any of the documents or information
mentioned in Article V.
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, the
requested State may direct that the person be released if transportation is
not continued within a reasonable time.
Article XV
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.
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 whomsoever is nominated by the requesting State.
3. The requesting State shall bear the expenses incurred in conveying from the
territory of the requested State the person whose extradition is requested.
Article XVI
ENTRY INTO FORCE AND TERMINATION
1. This Treaty shall enter into force thirty days after the Contracting States
have exchanged notifications that the legal requirements for its entry into
force 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. This Treaty, however, shall
continue to apply to any request for extradition pending on the date on which
the Treaty ceases to have effect.
3. Subject to paragraph 5 below, on entry into force of this Treaty, the
Extradition Treaty signed between Spain and Great Britain on 4 June 1878 shall
cease to have effect between the Contracting States.
4. Extraditions requested after the entry into force of this Treaty shall be
governed by its provisions.
5. Extraditions requested prior to the entry into force of this Treaty shall
continue to be processed and resolved in accordance with the provisions of the
Extradition Treaty between Spain and Great Britain signed on 4 June 1878. IN
WITNESS WHEREOF the undersigned, being duly authorised thereto by their
respective Governments, have signed this Treaty. DONE at Madrid on the
twenty-second day of April, One thousand nine hundred and eighty-seven in the
English and Spanish languages, both texts being equally authentic.
FOR AUSTRALIA                                                          FOR

SPAIN LIONEL BOWEN                                                    FERNANDO

LEDESMA The Honourable                                           Excelentisimo

Senor Don Lionel Frost Bowen                                      Fernando
Ledesma Bartret Attorney-General Ministro de Justicia