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EXTRADITION (POLAND) REGULATIONS 1999 1999 NO. 203 - SCHEDULE 1
Treaty between Australia and the Republic of Poland on Extradition
(regulation 4)
Australia and the Republic of Poland
DESIRING to make
more effective the co-operation of the two countries in the suppression of
crime by concluding a treaty on extradition,
HAVING DECIDED to conclude the
present treaty and having appointed their respective representatives to this
end,
HAVE AGREED as follows:
Article 1
Obligation to extradite
The
Contracting Parties undertake to surrender to each other, subject to the
provisions and conditions laid down in this Treaty, persons against whom the
competent authorities of the Requesting Party are proceeding for an offence or
who are wanted by the said authorities for the carrying out of a sentence.
Article 2
Extraditable offences
1. For the purpose of this Treaty,
extraditable offences are offences however described which are punishable
under the laws of both Contracting Parties by imprisonment for a period of
more than 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, extradition shall be granted
only if a period of at least six months of such penalty 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 sought 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 extradition
is sought for an offence against a law relating to taxation, customs duties,
foreign exchange or other revenue matter, extradition may not be refused on
the ground that the law of the Requested Party 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 Party.
4. Where the
offence has been committed outside the territory of the Requesting Party,
extradition shall be granted where the law of the Requested Party provides for
the punishment of an offence committed outside its territory in similar
circumstances. Where the law of the Requested Party does not so provide, the
Requested Party may, in its discretion, grant extradition.
5. Extradition
shall be granted pursuant to the provisions of this Treaty irrespective of
when the offence in relation to which extradition is sought was committed,
provided that:
(a) it was an offence under the laws of both Contracting
Parties at the time of the acts or omissions constituting the offence; and
(b) it was an offence under the laws of both Contracting Parties at the time
the request for extradition was made.
Article 3
Exceptions to extradition
1. Extradition shall not be granted if:
(a) the offence for which extradition
is sought is 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 that person's family;
(b) 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) the offence
for which extradition is sought is an offence exclusively under military law;
(d) final judgement has been passed in the Requested Party or in a third state
in respect of the offence for which the person's extradition is sought;
(e)
the person claimed has, according to the law of either the Requesting or the
Requested Party, become immune by reason of lapse of time from prosecution or
the execution of the penalty or punishment; or
(f) the case of the person, on
being extradited to the Requesting Party, would be liable to be dealt with in
that State by a court or tribunal:
(i) that has been specially established
for the purpose of dealing with that person's case; or
(ii) that is only
exceptionally authorised to deal with the cases of persons accused of the
offence for which extradition is sought.
2. Each of the Contracting Parties
shall have the right to refuse extradition of its nationals. If the Requested
Party does not extradite its national, it shall at the request of the
Requesting Party submit the case to its competent authorities in order that
proceedings may be taken if they are considered appropriate.
3. Extradition
may be refused if:
(a) the competent authorities of the Requested State have
decided not to institute proceedings or to terminate pending proceedings for
the offence in respect of which extradition is sought;
(b) the offence for
which extradition is requested is punishable by death under the law of the
Requesting Party, and if in respect of such offence the death penalty is not
provided for by the law of the Requested Party or is not normally carried out,
unless the Requesting Party gives such assurance as the Requested Party
considers sufficient that the death-penalty will not be carried out;
(c) the
offence is regarded by the law of the Requested Party as having been committed
in whole or in part within its territory; or
(d) a prosecution in respect of
the offence for which extradition is sought is pending in the Requested Party
against the person whose extradition is sought.
4. Where it appears to the
Requested Party that extradition would be totally incompatible with
humanitarian considerations because of exceptional circumstances including the
state of health or old age of the person sought, the Contracting Parties shall
consult to mutually determine whether the extradition request should continue.
Article 4
Extradition request 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 5.
2. The
request shall be supported by:
(a) the original or an authenticated copy of
the conviction, sentence immediately enforceable, warrant of arrest or other
order having the same effect and issued in accordance with the procedure laid
down in the law of the Requesting Party. Where a sentence has been imposed,
there shall be a statement of the extent to which the sentence has not been
carried out, or, where a sentence has not been imposed, there shall be a
statement affirming that it is intended to impose a sentence;
(b) a statement
of the offences for which extradition is requested. The time, place and
particulars of the conduct alleged to constitute the offence and their legal
descriptions shall be set out; and
(c) the text of the relevant enactments
or, where this is not possible, a statement of the relevant law including any
law relating to the limitation of proceedings and as accurate a description as
possible of the person claimed, together with any other information which will
help to establish his or her identity and nationality.
3. The request for
extradition and documents submitted in its support shall be accompanied by a
certified translation into the language of the Requested Party.
Article 5
Authentication of supporting documents
1. Documents that, in accordance with
Article 4, accompany a request for extradition shall be admitted in evidence,
if authenticated, in any extradition proceedings in the territory of the
Requested Party.
2. A document is authenticated for the purposes of this
Treaty if:
(a) it is signed or certified by a Judge, Public Prosecutor,
Magistrate or a competent officer of the Requesting Party; and
(b) it is
sealed with an official seal of the Requesting Party. In the case of the
Republic of Poland an official seal means the seal of the Minister of Justice.
In the case of Australia an official seal means the seal of a Minister of
State.
Article 6
Additional information
1. If the Requested Party 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 Party 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 Party 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 Party shall notify the Requesting Party as soon as
practicable.
Article 7
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 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 4 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 Party, a statement of the acts or omissions alleged
to constitute the offence.
3. On receipt of such an application the Requested
Party shall take the necessary steps to secure the arrest of the person
claimed and the Requesting Party 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 that person's arrest
if a request for extradition, supported by the documents specified in Article
4, has not been received.
5. The release of a person pursuant to paragraph 4
shall not prevent the institution of proceedings with a view to extraditing
the person sought if the request is subsequently received.
Article 8
Conflicting requests
1. Where requests are received from two or more States
for the extradition of the same person, the Requested Party 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 Party 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 possibility of
subsequent extradition to another State.
Article 9
Surrender
1. The
Requested Party shall, as soon as a decision on the request for extradition
has been made, communicate that decision to the Requesting Party through the
diplomatic channel.
2. Subject to the provisions of Article 10, where
extradition is granted, the Requested Party shall surrender the person at a
place convenient to the Requesting Party.
3. The Requesting Party shall
remove the person from the territory of the Requested Party within such
reasonable period as the Requested Party specifies and, if the person is not
removed within that period, the Requested Party 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
mutually decide upon a new date of surrender, and the provisions of paragraph
3 shall apply.
Article 10
Postponement of surrender and temporary surrender
1. The Requested Party may, after making its decision on the request for
extradition, postpone the surrender of the person claimed in order that he or
she may be proceeded against by that Party or, if he or she has already been
convicted, in order that he or she may serve his or her sentence in the
territory of that Party for an offence other than that for which extradition
is requested.
2. The Requested Party may, instead of postponing surrender,
temporarily surrender the person claimed to the Requesting Party in accordance
with conditions to be mutually determined by the Parties.
Article 11
Surrender of property
1. To the extent permitted under the law of the
Requested Party and subject to the rights of third parties, which shall be
duly respected, all property found in the Requested Party that has been
acquired as a result of the offence or may be required as evidence shall, if
the Requesting Party so requests, be surrendered if extradition is granted.
2. The property mentioned in paragraph 1 shall be handed over even if
extradition, having been agreed to, cannot be carried out owing to the death
or escape of the person claimed or for other reasons.
3. Where the law of the
Requested Party or the rights of third parties so require, any articles so
surrendered shall be returned to the Requested Party free of charge if that
Party 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 or her personal liberty, in the
territory of the Requesting Party for any offence committed before his or her
extradition other than:
(a) an offence for which extradition was granted or
any other extraditable offence for which the person could be prosecuted on the
basis of the facts upon which the request for extradition was based, provided
that the 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 extraditable offence in respect of which the Requested Party consents.
2. A request for the consent of the Requested Party referred to in paragraph
1 (b) shall be accompanied by the documents mentioned in Article 4.
3.
Restrictions under paragraph 1 do not apply if the person has had an
opportunity to leave the territory of the Requesting Party 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 Party after leaving it.
Article 13
Surrender to a third State
1.
Where a person has been surrendered to the Requesting Party by the Requested
Party, the first-mentioned Party shall not surrender that person to any third
State for an offence committed before that person's surrender unless:
(a) the
Requested Party consents to that surrender; or
(b) the person has had an
opportunity to leave the Requesting Party 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 Party or has returned to the territory of the
Requesting Party after leaving it.
2. Before acceding to a request pursuant
to sub-paragraph (1) (a), the Requested Party may request the production
of the documents mentioned in Article 4.
Article 14
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.
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 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 15
Expenses
1. Expenses incurred in the territory of the Requested
Party by reason of extradition shall be borne by that Party.
2. The
Requesting Party shall bear the expenses incurred in conveying the person from
the territory of the Requested Party.
Article 16
Multilateral obligations
Nothing in this Treaty shall affect any obligations which have been or shall
in the future be assumed by the Contracting Parties under any multilateral
convention.
Article 17
Entry into force and termination
1. This Treaty
shall enter into force thirty days after the date on which the Contracting
Parties have notified each other in writing that their respective requirements
for the entry into force of this Treaty have been complied with.
2. On the
date of this Treaty entering into force, the Treaty between Great Britain and
the Republic of Poland for the Mutual Extradition of Fugitive Criminals done
at Warsaw on 11 January 1932 shall cease to be in force between Australia and
the Republic of Poland.
3. Extradition requests submitted after the entry
into force of this Treaty shall be governed by this Treaty whatever the date
of the commission of the offence for which extradition is requested.
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 the notice is delivered.
IN WITNESS WHEREOF the
undersigned, being duly authorised thereto, have signed this Treaty.
DONE at
Canberra on the third day of June, one thousand, nine hundred and ninety-eight
in the English and Polish languages, each text being equally authentic.
FOR
AUSTRALIA:
| FOR THE REPUBLIC OF POLAND:
|
Amanda Vanstone
| Maciej Kozlowski
|
1. Made by the Governor-General on 9 September 1999, and notified in the
Commonwealth of Australia Gazette on 16 September 1999.