International Criminal Court Act 2002
No. 41, 2002
An Act to facilitate compliance by Australia with obligations
under the Rome Statute of the International Criminal Court, and for related
purposes
[Assented to 27
June 2002]
The Parliament of Australia enacts:
Part 1—Preliminary
1 Short
title
This Act may be cited as the International
Criminal Court Act 2002.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, on the day or
at the time specified in column 2 of the table.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Part 1 and anything in this Act not elsewhere
covered by this table
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The day after this Act receives the Royal Assent
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28 June 2002
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2. Parts 2 to 14
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A single day to be fixed by Proclamation, subject to
subsections (3) to (6)
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26 September 2002 (Gazette 2002, No. GN38)
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3. Schedule 1
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The day after this Act receives the Royal Assent
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28 June 2002
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Note: This table relates only to the provisions of
this Act as originally passed by the Parliament and assented to. It will not be
expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional
information that is not part of this Act. This information may be included in
any published version of this Act.
(3) A Proclamation under item 2 of the
table must not specify a day that occurs before the day on which the Statute
enters into force for Australia.
(4) Subject to subsection (5), if a
provision covered by item 2 of the table does not commence within the
period of one month beginning on the day on which the Statute enters into force
for Australia, it commences on the first day after the end of that period.
(5) If a provision commences as a result of
subsection (4), the Minister must announce by notice in the Gazette
the day on which the provision commenced.
(6) If sections 3 to 338 of the Proceeds
of Crime Act 2002 have not commenced before the day fixed under column 2 of
item 2 of the table, Division 14 of Part 4, and Part 11,
commence immediately after the commencement of those sections.
3
Principal object of Act
(1) The principal object of this Act is to
facilitate compliance with Australia’s obligations under the Statute.
(2) Accordingly, this Act does not affect the
primacy of Australia’s right to exercise its jurisdiction with respect to crimes
within the jurisdiction of the ICC.
Note: The crimes within the jurisdiction of the ICC
are set out as crimes in Australia in Division 268 of the Criminal Code.
4
Definitions
In this Act, unless the contrary
intention appears:
account has the same meaning as in the
Proceeds of Crime Act.
agent has the same meaning as in the Proceeds
of Crime Act.
appropriate authority, in relation to an
authorisation given by the Attorney‑General for the purposes of
compliance with a request by the ICC for assistance of a particular type,
means:
(a) an officer of the Commonwealth; or
(b) a police officer;
authorised by the Attorney‑General to act in
connection with the provision of the assistance.
appropriate court means the Federal Court or
the Supreme Court of a State.
appropriate Ministerial consent to the
service by an ICC prisoner in Australia of a sentence of imprisonment imposed
by the ICC means consent to the sentence being served in Australia given by:
(a) the Attorney‑General; and
(b) the Minister administering the Migration
Act 1958; and
(c) the State Minister of the State in
which the prisoner is to begin to serve the sentence.
Australia, when used in a geographical sense,
includes all the external Territories.
Australian law means a law of the Commonwealth,
a law of a State or a law of a Territory.
authenticated by the ICC means authenticated
by the ICC under the Statute or the Rules.
authorised officer has the same meaning as in
the Proceeds of Crime Act.
conduct means:
(a) an act; or
(b) an omission to perform an act.
crime within the jurisdiction of the ICC
means:
(a) an international crime; or
(b) an offence against the
administration of the ICC’s justice.
DPP means the Director of Public
Prosecutions.
enforcement agency has the same meaning as in
the Proceeds of Crime Act.
enforcement conditions has the meaning given
by subsection 160(1).
escort officer, in relation to an ICC
prisoner, means the police officer, prison officer or other person specified in
the warrant authorising the transfer of the ICC prisoner under Part 12 as
the escort officer for the ICC prisoner.
evidence includes expert evidence.
evidential material means a thing relevant to
a crime within the jurisdiction of the ICC, including such a thing in
electronic form.
examination of a site that is a grave
includes exhumation of the grave.
executing officer, in relation to a warrant,
means:
(a) the police officer named in the
warrant, by the magistrate who issued the warrant, as being responsible for
executing the warrant; or
(b) if that police officer does not
intend to be present at the execution of the warrant—another police officer
whose name has been written in the warrant by the police officer so named; or
(c) another police officer whose name
has been written in the warrant by the police officer last named in the
warrant.
faxed copy, in relation to a document, means
a copy of a document obtained or sent by fax.
Federal Court means the Federal Court of
Australia.
federal prisoner means a person who:
(a) is being held in custody pending:
(i) trial for; or
(ii) a committal hearing or a
summary hearing in relation to; or
(iii) sentencing for;
an offence against a law of the
Commonwealth or of a Territory; or
(b) is under a sentence of imprisonment
for an offence against a law of the Commonwealth or of a Territory, or is
otherwise subject to detention under a law of the Commonwealth or of a
Territory;
but does not include a person who is at large after having
escaped from lawful custody.
financial institution has the same meaning in
Division 14 of Part 4, and in Part 11, as that expression has in
the Proceeds of Crime Act.
forfeiture order means an order made by the
ICC under paragraph 2(b) of article 77 of the Statute for the forfeiture of
proceeds of a crime within the jurisdiction of the ICC.
frisk search means:
(a) a search of a person conducted by
quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or
carried by the person that is conveniently and voluntarily removed by the person.
ICC means the International Criminal Court
established under the Statute, and includes any of the organs of that Court
within the meaning of the Statute.
ICC prisoner means a person who is to serve,
or is serving, a sentence of imprisonment imposed by the ICC.
interest, in relation to property, has the
same meaning as in the Proceeds of Crime Act.
international crime means a crime in respect
of which the ICC has jurisdiction under article 5 of the Statute.
law, in relation to the Commonwealth, a State
or a Territory, means a law (whether written or unwritten) of the Commonwealth,
of that State or of that Territory, and includes a law (whether written or
unwritten) in force in the Commonwealth, in that State or in that Territory or
in any part of the Commonwealth, of that State or of that Territory.
monitoring order has the same meaning as in
the Proceeds of Crime Act.
offence against the administration of the ICC’s
justice means an offence against the administration of the ICC’s
justice referred to in article 70 of the Statute.
officer, in relation to a financial
institution, has the same meaning as in the Proceeds of Crime Act.
officer assisting, in relation to a warrant,
means:
(a) a person who is a police officer and
who is assisting in executing the warrant; or
(b) a person who is not a police officer
and has been authorised by the relevant executing officer to assist in
executing the warrant.
Official Trustee means the Official Trustee
in Bankruptcy.
ordinary search means a search of a person or
of articles in the possession of a person that may include:
(a) requiring the person to remove his
or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.
police officer means:
(a) a member or special member (within
the meaning of the Australian Federal Police Act 1979) of the Australian
Federal Police; or
(b) a member of the police force of a
State or Territory.
police station includes:
(a) a police station of a State or
Territory; and
(b) a building occupied by the
Australian Federal Police.
possession, in relation to a thing, includes
having the thing under control in any place whatsoever, whether for the use or
benefit of the person of whom the term is used or of another person, and
although another person has the actual possession or custody of the thing in
question.
premises includes a place and a conveyance.
Pre‑Trial Chamber means the Pre‑Trial
Chamber of the ICC.
prisoner, except in the expression ICC
prisoner, means a federal prisoner or a State prisoner.
prison officer means a person appointed or
employed to assist in the management of a prison.
proceeds of a crime within the jurisdiction
of the ICC means proceeds (within the meaning of the Proceeds of Crime Act) of
such a crime.
proceeds jurisdiction has the same meaning as
in the Proceeds of Crime Act.
Proceeds of Crime Act means the Proceeds
of Crime Act 2002.
production order has the same meaning as in
the Proceeds of Crime Act.
property means real or personal property of
every description, whether situated in Australia or elsewhere and whether
tangible or intangible, and includes an interest in any such real or personal
property.
property tracking document means:
(a) a document that is relevant to
identifying, locating or quantifying property of a person who has been
convicted of or charged with, or whom it is proposed to charge with, a crime
within the jurisdiction of the ICC; or
(b) a document that is relevant to
identifying or locating any document necessary for the transfer of the property
of such a person; or
(c) a document that is relevant to
identifying, locating or quantifying the proceeds of a crime within the
jurisdiction of the ICC; or
(d) a document that is relevant to
identifying or locating any document necessary for the transfer of such
proceeds; or
(e) a document that would assist in the
reading or interpretation of a document referred to in any of the above
paragraphs.
Prosecutor means the Prosecutor of the ICC.
recently used conveyance, in relation to a
search of a person, means a conveyance that the person had operated or occupied
at any time within 24 hours before the search commenced.
related crime within the jurisdiction of the ICC:
a crime within the jurisdiction of the ICC is related to another crime within
the jurisdiction of the ICC if the physical elements of the 2 crimes are
substantially the same acts or omissions.
request for arrest and surrender of a person
means a request made to Australia by the ICC for the arrest and surrender of
the person and, if a request has previously been made by the ICC for the
provisional arrest of the person, includes a subsequent request made by the ICC
for the surrender of the person.
request for cooperation has the meaning given
by section 7.
request for provisional arrest of a person means
a request made to Australia by the ICC for the provisional arrest of the
person.
request for surrender of a person means a
request made by the ICC for the surrender of the person, whether in conjunction
with a request made by the ICC for the arrest of the person or subsequent to a
request made by the ICC for the provisional arrest of the person.
restraining order means a restraining order
under section 17 of the Proceeds of Crime Act.
Rules means the Rules of Procedure and
Evidence in force under article 51 of the Statute.
search warrant (except in Part 4) means
a warrant issued under section 111.
seizable item means anything that would
present a danger to a person or could be used to assist a person to escape from
lawful custody.
serve a sentence imposed by the ICC includes
complete the service of such a sentence that has been partly served.
State includes the Australian Capital
Territory, the Northern Territory and Norfolk Island.
State Minister means:
(a) in relation to a particular State
other than the Australian Capital Territory, the Northern Territory or Norfolk
Island—the Minister of the State administering the law of the State relating to
the transfer of prisoners; and
(b) in relation to the Australian
Capital Territory—the Minister for the Australian Capital Territory
administering the law of the Australian Capital Territory relating to the
transfer of prisoners; and
(c) in relation to the Northern
Territory—the Minister for the Northern Territory administering the law of
the Northern Territory relating to the transfer of prisoners; and
(d) in relation to Norfolk Island—the
executive member (within the meaning of the Norfolk Island Act 1979)
administering the law of Norfolk Island relating to the transfer of prisoners;
and includes any Minister or executive member acting for
the time being for or on behalf of the Minister or executive member referred to
in any of the above paragraphs and any person to whom the Minister or executive
member so referred to has delegated any of the Minister’s or executive member’s
functions under this Act.
State prisoner means a person who:
(a) is being held in custody pending:
(i) trial for; or
(ii) a committal hearing or a
summary hearing in relation to; or
(iii) sentencing for;
an offence against a law of a
State; or
(b) is under a sentence of imprisonment
for an offence against a law of a State, or is otherwise subject to detention
under a law of a State;
but does not include a person who is at large after having
escaped from lawful custody.
Statute means the Statute of the
International Criminal Court done at Rome on 17 July 1998, a copy of the English text of which is set out in Schedule 1.
statutory form, in relation to a warrant,
notice, application or direction, means the form of the warrant, notice, application
or direction, as the case may be, set out in the regulations.
strip search means a search of a person or of
articles in the possession of a person that may include:
(a) requiring the person to remove all
of his or her garments; and
(b) an examination of the person’s body
(but not of the person’s body cavities) and of those garments.
superintendent of a prison means the person
for the time being in charge of the prison.
surrender of a person means surrender of the
person to the ICC.
surrender warrant means a warrant issued
under section 28.
Territory does not include the Australian
Capital Territory or the Northern Territory and, except in section 6,
does not include Norfolk Island.
Trial Chamber means the Trial Chamber of the
ICC.
warrant premises means premises in relation
to which a search warrant is in force.
5 Act
to bind Crown
This Act binds the Crown in right of the
Commonwealth and in right of each of the States.
6 External
Territories
This Act extends to each external
Territory.
Part 2—General provisions relating to requests by the ICC for
cooperation
7 What
constitutes a request for cooperation
(1) A request for cooperation
is a request made by the ICC to Australia, in respect of an investigation or
prosecution that the Prosecutor is conducting or proposing to conduct, for:
(a) assistance in connection with any
one or more of the following:
(i) the arrest (including the
provisional arrest), and surrender to the ICC, of a person in relation to whom
the ICC has issued a warrant of arrest or a judgment of conviction;
(ii) the identification and
whereabouts of a person or the location of items;
(iii) the taking of evidence,
including testimony on oath, and the production of evidence, including expert
opinions and reports necessary to the ICC;
(iv) the questioning of any
person being investigated or prosecuted;
(v) the service of documents,
including judicial documents;
(vi) facilitating the voluntary
appearance of persons (other than prisoners) before the ICC;
(vii) the temporary transfer of
prisoners to the ICC;
(viii) the examination of places
or sites;
(ix) the execution of searches
and seizures;
(x) the provision of records
and documents, including official records and documents;
(xi) the protection of victims
or witnesses or the preservation of evidence;
(xii) the identification,
tracing, and freezing or seizure, of the proceeds of crimes within the
jurisdiction of the ICC for the purpose of eventual forfeiture, without
prejudice to the rights of bona fide third parties; and
(b) any other type of assistance that is
not prohibited by Australian law, with a view to facilitating the investigation
and prosecution of crimes within the jurisdiction of the ICC and the
enforcement of orders of the ICC made after convictions for such crimes.
(2) This Act does not prevent the provision
of assistance to the ICC otherwise than under this Act, including assistance of
an informal nature.
8 How
requests for cooperation are to be made
(1) Subject to section 9, a request for
cooperation is to be made in writing:
(a) to the Attorney‑General
through the diplomatic channel; or
(b) through the International Criminal
Police Organisation or any other appropriate regional organisation.
(2) If a request for cooperation is sent to,
or received by, a person to whom the Attorney‑General has delegated a
power to deal with the request, the request is taken for the purposes of this
Act to have been sent to, or received by, the Attorney‑General.
9
Urgent requests for cooperation and requests for provisional arrest
(1) A request for cooperation made in urgent
cases, and any request for provisional arrest, may be made by using any medium
capable of delivering a written record.
(2) If a request is made or sent in the first
instance in a manner specified in subsection (1), it must be followed as
soon as practicable by a formal request made in accordance with section 8.
10
Execution of requests
(1) A request for cooperation must be
executed in accordance with the relevant procedure under the applicable
Australian law (as provided in this Act).
(2) If the request states that it should be
executed in a particular manner that is not prohibited by Australian law or by
using a particular procedure that is not prohibited by Australian law, the
Attorney‑General must use his or her best efforts to ensure that the
request is executed in that manner or by using that procedure, as the case may
be.
(3) This section does not affect the
operation of subsection 106(1) (which allows the Prosecutor in certain circumstances
to execute a request for cooperation to which Part 4 applies) or
section 107 (which allows the Prosecutor in certain circumstances to
conduct investigations in Australia).
11
Consultations with ICC
(1) The Attorney‑General must consult
with the ICC, without delay, if, for any reason, there are or may be problems
with the execution of a request for cooperation.
(2) Before refusing a request for assistance
of a kind mentioned in paragraph 1(l) of article 93 of the Statute, the
Attorney‑General must consult with the ICC to ascertain whether the
assistance requested could be provided:
(a) subject to conditions; or
(b) at a later date or in an alternative
manner.
(3) Without limiting the types of conditions
under which assistance may be provided, the Attorney‑General may agree to
information or documents being sent to the Prosecutor on a confidential basis,
on the condition that the Prosecutor will use them solely for the purpose of
generating new evidence.
(4) If the Attorney‑General sends information
or documents subject to the condition specified in subsection (3), the
Attorney‑General may subsequently consent to the disclosure of the
documents or information for use as evidence under the provisions of
Parts 5 and 6 of the Statute and in accordance with the Rules.
12
Request that may raise problems relating to Australia’s international
obligations to a foreign country
(1) This section applies where the Attorney‑General
consults with the ICC because the execution of a request for cooperation may
raise problems relating to Australia’s obligations to a foreign country under
international law or international agreements as mentioned in article 98 of the
Statute.
(2) If, after the consultation, the Attorney‑General
is satisfied that the execution of the request would not conflict with any of
those obligations, the Attorney‑General must sign a certificate stating
that the execution of the request does not conflict with any of those
obligations.
(3) A certificate signed under
subsection (2) is conclusive evidence of the matters stated in the
certificate.
(4) If, after the consultation, the Attorney‑General
is not satisfied as mentioned in subsection (2), the Attorney‑General
must postpone the execution of the request unless and until the foreign country
has made the necessary waiver or given the necessary consent.
13
Confidentiality of request
(1) A person dealing with a request for
cooperation must keep the request, and any documents supporting it,
confidential except to the extent that it is necessary to disclose the request
or such a document for the purpose of executing the request.
(2) If the ICC requests that particular
information made available in connection with a request for cooperation be
provided and handled in a manner that protects the safety, or physical or
psychological well‑being, of any victims, potential witnesses and their
families, a person dealing with the request must ensure that the information is
provided and handled in that manner.
14
Response to be sent to ICC
(1) The Attorney‑General must notify
the ICC, without undue delay, of his or her response to a request for
cooperation and of the outcome of any action that has been taken in relation to
the request.
(2) If the Attorney‑General decides, in
accordance with the Statute and this Act, to refuse or postpone the assistance
requested, wholly or partly, the notice to the ICC must set out the reasons for
the decision.
(3) If the request for cooperation cannot be
executed for any other reason, the notice to the ICC must set out the reasons
for the inability or failure to execute the request.
(4) In the case of an urgent request for
cooperation, any documents or evidence produced in response must, if the ICC
requests, be sent urgently to it.
(5) Documents or evidence provided or
produced in response to a request for cooperation must be sent to the ICC in
the original language and form.
15
Attorney‑General must take into account ICC’s ability to refer matter to
Assembly of States Parties or Security Council
In determining what action to take in
relation to a request for cooperation, the Attorney‑General must take
into account the power of the ICC to refer the matter to the Assembly of States
Parties or to the Security Council in accordance with paragraph 7 of article 87
of the Statute if the ICC finds that, contrary to the provisions of the
Statute, Australia has failed to comply with the request.
Part 3—Requests by the ICC for arrest and surrender of persons
Division 1—Preliminary
16
Application of Part
This Part applies to a request for
arrest and surrender, or a request for provisional arrest, of a person.
Division 2—Documentation to accompany request
17
Documentation for request for arrest and surrender of person for whom warrant
of arrest has been issued
If a request is made for arrest and
surrender of a person for whom a warrant of arrest has been issued by the Pre‑Trial
Chamber under article 58 of the Statute, the request must contain or be
supported by:
(a) information describing the person
sought, being information sufficient to identify the person; and
(b) information as to the person’s
probable location; and
(c) a copy of the warrant of arrest,
authenticated by the ICC; and
(d) any other documents, statements or
information required by or under the regulations.
18
Documentation for request for arrest and surrender of person already convicted
If a request is made for arrest and
surrender of a person who has already been convicted, the request must contain
or be supported by:
(a) a copy of any warrant of arrest for
the person, authenticated by the ICC; and
(b) a copy of the judgment of
conviction, authenticated by the ICC; and
(c) information to demonstrate that the
person sought is the person referred to in the judgment of conviction; and
(d) if the person sought has been
sentenced:
(i) a copy of the sentence
imposed, authenticated by the ICC; and
(ii) in the case of a sentence
of imprisonment—a statement of any period already served and the period
remaining to be served.
19
Documentation for request for provisional arrest
If a request is made for provisional
arrest of a person, the request must contain or be supported by:
(a) information describing the person
sought, being information sufficient to identify the person; and
(b) information as to the person’s
probable location; and
(c) a concise statement of:
(i) the crimes within the
jurisdiction of the ICC for which the person’s arrest is requested; and
(ii) the facts that are alleged
to constitute those crimes, including, where possible, the dates when, and the
locations at which, the crimes are alleged to have been committed; and
(d) a statement of the existence of a
warrant of arrest, or of a judgment of conviction, against the person sought;
and
(e) a statement that a request for
surrender of the person will follow.
Division 3—Arrest of persons
20
Arrest following request for arrest and surrender
(1) Subject to section 22, if:
(a) the Attorney‑General receives
a request for arrest and surrender of a person; and
(b) Division 2 has been complied
with in respect of the request;
the Attorney‑General may, by written notice in the
statutory form expressed to be directed to any magistrate, state that the
request has been received.
(2) If the Attorney‑General issues such
a notice, a copy of any warrant of arrest or judgment of conviction that was
issued by the ICC must be attached to the notice.
(3) A magistrate must issue a warrant, by
writing in the statutory form, for the person’s arrest if an application is
made, in the statutory form, on behalf of the ICC, for issue of a warrant
pursuant to the notice.
(4) After the warrant has been issued, the
magistrate must without delay send to the Attorney‑General a report
stating that the magistrate has issued the warrant.
21
Arrest following request for provisional arrest
(1) Subject to section 22, if:
(a) the Attorney‑General receives
a request for provisional arrest of a person; and
(b) Division 2 has been complied
with in respect of the request;
the Attorney‑General may, by written notice in the
statutory form expressed to be directed to any magistrate, state that the
request has been received.
(2) If the Attorney‑General issues such
a notice, a magistrate must issue a warrant, by writing in the statutory form,
for the person’s arrest if an application is made, in the statutory form, on
behalf of the ICC, for issue of a warrant pursuant to the notice.
(3) After the warrant has been issued, the
magistrate must without delay send to the Attorney‑General a report
stating that the magistrate has issued the warrant.
22
Certificate by Attorney‑General
The Attorney‑General must not
issue a notice under section 20 or 21 after receipt of a request for the
arrest and surrender, or for the provisional arrest, of a person for a crime
unless the Attorney‑General has, in his or her absolute discretion,
signed a certificate that it is appropriate to do so.
23
Remand
(1) If a person is arrested under a warrant
issued under section 20 or 21, the person executing the warrant must, as
soon as practicable after the arrest:
(a) give to the person under arrest a
written notice that:
(i) specifies the crime within
the jurisdiction of the ICC in respect of which the warrant was issued; and
(ii) describes the conduct that
is alleged to constitute that crime; and
(b) bring the person under arrest before
a magistrate in the State or Territory in which the arrest took place.
(2) The magistrate must satisfy himself or
herself whether:
(a) the person is the person specified
in the warrant; and
(b) the person was arrested in
accordance with this Act; and
(c) section 131 has been complied
with in respect of the arrest.
(3) If the magistrate is not satisfied as to
any one or more of the matters mentioned in subsection (2), the magistrate
must order the release of the person from custody. However, the making of the
order does not prevent the person from being arrested under a further warrant
issued under section 20 or 21.
(4) If the magistrate is satisfied as to all
the matters mentioned in subsection (2), the magistrate must remand the
person in custody or on bail for such period or periods as may be necessary to
enable the Attorney‑General to issue a surrender warrant and, if a
surrender warrant is issued, to enable the warrant to be executed.
(5) The magistrate must remand the person in
custody unless there are special circumstances justifying remand on bail.
(6) Without limiting the other matters that
may be taken into account in making a decision to grant bail, the magistrate
must have regard to the following:
(a) the gravity of the alleged crimes
within the jurisdiction of the ICC;
(b) whether there are urgent and
exceptional circumstances that favour the grant of bail;
(c) whether necessary safeguards exist
to ensure that Australia can fulfil its duty under the Statute to surrender the
person.
(7) Without limiting the other matters that
may be taken into account in making a decision to grant bail, the magistrate
may not consider whether any warrant of arrest issued by the ICC was properly
issued in accordance with the Statute.
24
Procedure following application for bail
(1) If an application for bail is made, the
Attorney‑General must notify the ICC.
(2) The Attorney‑General must give to
the magistrate who is considering the application the recommendations made by
the ICC in relation to the application.
(3) Before giving a decision, the magistrate
must consider the recommendations that the ICC has made, including any
recommendations or measures to prevent the escape of the person.
(4) If the person is granted bail, the
Attorney‑General must, if the ICC requests, provide periodic reports to
the ICC on the person’s bail status.
(5) This section applies with any necessary
modifications to any application for bail made during the period until the
person is surrendered or is released according to law.
25
Release from remand on the Attorney‑General’s direction
(1) The Attorney‑General must, by
written notice in the statutory form, direct a magistrate to order the release
from custody of a person remanded under this Division, or the discharge of the
recognisances on which bail was granted to the person, as the case requires,
if:
(a) where the person was remanded
following the receipt of a request for provisional arrest—a request for
surrender of the person has not been duly received within 60 days after the day
on which the person was arrested and the person does not consent to surrender;
or
(b) in any case—after considering the
matters mentioned in subsection 23(6), the Attorney‑General considers for
any other reason that the remand should cease.
(2) The making by a magistrate of an order
under subsection (1) following a direction by the Attorney‑General
does not prevent the person from being arrested and remanded pursuant to a
further request for arrest and surrender of the person received after the
making of the order.
26
Release from remand after certain periods
(1) A person must be brought before a
magistrate if:
(a) the person was arrested under a
warrant issued under subsection 21(2); and
(b) the person is, under this Division,
on remand 60 days after the day on which the person was arrested; and
(c) a notice has not been given under
subsection 20(1) in relation to the person.
(2) Unless the magistrate is satisfied that
such a notice is likely to be given within a particular period that is
reasonable in all the circumstances, the magistrate must:
(a) order the release of the person from
custody; or
(b) order the discharge of the
recognisances on which bail was granted to the person;
as the case requires.
(3) If a magistrate was satisfied under
subsection (2) that such a notice was likely to be given in relation to
the person within a particular period but the notice is not given within the
period:
(a) the person must be brought before a
magistrate; and
(b) the magistrate must:
(i) order the release of the
person from custody; or
(ii) order the discharge of the
recognisances on which bail was granted to the person;
as the case requires.
27
Application for search warrants
(1) If:
(a) a person is arrested under a warrant
issued under section 20 or 21; and
(b) a police officer has reasonable
grounds for suspecting that evidential material relating to a crime within the
jurisdiction of the ICC in respect of which the warrant was issued is, or within
the applicable period referred to in subsection (3) of this section will
be, at any premises;
the police officer may, by an information on oath that
sets out the grounds for the suspicion, apply for a search warrant in relation
to the premises to search for that material.
(2) If:
(a) a person is arrested under a warrant
issued under section 20 or 21; and
(b) a police officer has reasonable
grounds for suspecting that evidential material relating to a crime within the
jurisdiction of the ICC in respect of which the warrant was issued is, or
within the applicable period referred to in subsection (3) of this section
will be, in a person’s possession;
the police officer may, by an information on oath that
sets out the grounds for the suspicion, apply for a search warrant in relation
to the person to search for the material.
(3) For the purposes of this section, the applicable
period is:
(a) if the application for the warrant
is made by telephone, telex, fax or other electronic means, as provided by section 116—48
hours; or
(b) otherwise—72 hours.
Note: Part 6 deals with search warrants.
Division 4—Surrender of persons
28
Surrender warrants
(1) Except where this Division otherwise
provides, if a person is remanded under Division 3, the Attorney‑General
may, subject to section 29, issue a warrant for the surrender of the
person.
(2) The surrender warrant must be in writing
in the statutory form.
29
Certificate by Attorney‑General
The Attorney‑General must not
issue a warrant for the surrender of a person for a crime unless the Attorney‑General
has, in his or her absolute discretion, signed a certificate that it is
appropriate to do so.
30
Surrender warrant may take effect at later date
(1) This section applies if, apart from this
subsection, the Attorney‑General would be required to issue a surrender
warrant for a crime within the jurisdiction of the ICC in respect of a person
who is liable to be detained in a prison because of a sentence of imprisonment
imposed for a different offence against Australian law.
(2) The Attorney‑General may, after
consultation with the ICC, do either of the following:
(a) instead of issuing a surrender
warrant that has an immediate effect, issue a surrender warrant that is to come
into effect when the person ceases to be liable to be detained;
(b) issue a surrender warrant that has a
temporary operation in accordance with conditions agreed with the ICC.
31
Refusal of surrender
(1) The Attorney‑General must refuse a
request for surrender of a person if the ICC determines that the case is
inadmissible and subsection 33(4), 35(3) or 36(3) applies.
(2) The Attorney‑General may refuse a
request for surrender of a person if:
(a) there are competing requests from
the ICC, and from a foreign country that is not a party to the Statute,
relating to the same conduct, and subsection 39(6) applies; or
(b) there are competing requests from
the ICC, and from a foreign country that is not a party to the Statute,
relating to different conduct, and subsection 40(3) applies.
(3) The restrictions on extradition specified
in the Extradition Act 1988 do not apply in relation to a request for
surrender of a person.
32
Postponement of execution of request for surrender
(1) The Attorney‑General may postpone
the execution of a request for surrender of a person for a crime within the
jurisdiction of the ICC at any time before the person is surrendered if, and
only if:
(a) a determination on admissibility of
the kind specified in section 33, 35 or 36 is pending before the ICC; or
(b) the request would interfere with an
ongoing investigation or prosecution in Australia involving different conduct
from the conduct that constituted the crime, as provided in section 34; or
(c) the request involves a conflict with
Australia’s international obligations, and subsection 12(4) applies.
(2) If the Attorney‑General postpones
the execution of the request, the postponement may be for a reasonable period
and may, if the Attorney‑General considers it desirable, be extended from
time to time.
(3) A decision by the Attorney‑General
to postpone the execution of a request:
(a) does not limit or affect the
detention of a person under a warrant issued under this Part; and
(b) does not affect the validity of any
act done or any warrant issued under this Part before the decision was made.
(4) However, if:
(a) the person applies to an appropriate
court to be released; and
(b) the court is satisfied that
reasonable notice of the intention to make the application has been given to
the Attorney‑General;
the court may, unless the person is liable to be detained
under any other order or other sufficient cause is shown against the release,
order the release of the person from the place where the person is detained.
33
Previous proceedings against person sought
(1) This section applies if the person whose
surrender is sought alleges to the Attorney‑General that:
(a) the case is one to which paragraph 1
of article 20 of the Statute applies (because it relates to conduct that formed
the basis of crimes for which the person has been convicted or acquitted by the
ICC); or
(b) the person has been tried by another
court for conduct also proscribed under article 6, 7 or 8 of the Statute and
the case is not one to which paragraph 3(a) or (b) of article 20 of the Statute
applies.
(2) The Attorney‑General must
immediately consult with the ICC to determine if there has been a relevant
determination on admissibility under the Statute.
(3) If the ICC has determined that the case
is admissible, surrender cannot be refused on the ground of the person’s
previous conviction, acquittal or trial in respect of the relevant conduct.
(4) If the ICC has determined that the case
is inadmissible under article 20 of the Statute, surrender must be refused on
the ground of the person’s previous conviction, acquittal or trial, as the case
may be, in respect of the relevant conduct.
(5) If an admissibility determination is
pending, the Attorney‑General may postpone the execution of a request
until the ICC has made its determination.
34 Ongoing
Australian investigation or prosecution involving different conduct
(1) This section applies if a request for
surrender of a person is made that would interfere with an ongoing
investigation or prosecution in Australia involving different conduct from the
conduct constituting the crime within the jurisdiction of the ICC to which the
request relates.
(2) The Attorney‑General may, after
consultation with the ICC:
(a) proceed with the execution of the
request despite the Australian investigation or prosecution; or
(b) postpone the execution of the
request until the Australian investigation or prosecution has been finally
disposed of.
(3) Nothing in this section limits or affects
section 30 (which allows the Attorney‑General to issue a surrender
warrant that comes into effect at a later date if a person is serving a
sentence for a different offence against Australian law).
35
Person being investigated or prosecuted in Australia for same conduct
(1) This section applies if:
(a) a request for surrender of a person
is made; and
(b) the request relates to conduct that
would constitute an offence under Australian law; and
(c) either:
(i) the conduct is being
investigated or prosecuted in Australia; or
(ii) the conduct has been
investigated in Australia, and a decision was made not to prosecute the person
sought; and
(d) a challenge to the admissibility of
the case is being or has been made to the ICC under paragraph 2(b) of article
19 of the Statute.
(2) The Attorney‑General may postpone
the execution of the request for surrender until the ICC has made its
determination on admissibility.
(3) If the ICC determines that the case is
inadmissible, surrender must be refused.
(4) If the ICC determines that the case is
admissible and there is no other ground for refusing or postponing the request,
the request must continue to be dealt with under this Part.
36
Challenges to admissibility in other cases
(1) This section applies if the ICC is
considering an admissibility challenge under article 18 or 19 of the Statute,
other than a challenge of the kind referred to in section 33 or 35.
(2) The Attorney‑General may, pending a
determination by the ICC on the admissibility challenge, postpone the execution
of a request under this Part in respect of the crime within the jurisdiction of
the ICC to which the challenge relates.
(3) If the ICC determines that the case to
which the request relates is inadmissible, surrender must be refused.
(4) If the ICC determines that the case to
which the request relates is admissible, and there is no other ground for
refusing or postponing the request, the request must continue to be dealt with
under this Part.
37
Request from ICC and a foreign country relating to same conduct
If a request for surrender of a person
is made and a foreign country requests the extradition of the person for the
conduct that forms the basis of the crime for which the person’s surrender is
sought, the Attorney‑General:
(a) must notify the ICC and the foreign
country of that fact; and
(b) must determine, in accordance with
section 38 or 39, whether the person is to be surrendered or is to be
extradited to the foreign country.
38
Procedure where competing request relating to same conduct from a foreign
country that is a party to the Statute
(1) This section applies if:
(a) section 37 applies; and
(b) the foreign country is a party to
the Statute.
(2) Priority must be given to the request
from the ICC if:
(a) the ICC has, under article 18 or 19
of the Statute, made a determination that the case in respect of which
surrender is sought is admissible and that determination takes into account the
investigation or prosecution conducted by the foreign country in respect of its
request for extradition; or
(b) the ICC makes such a determination
after receiving notification of the request for extradition from the foreign
country.
(3) If the ICC has not made a determination
referred to in subsection (2), then, pending the making of such a
determination:
(a) the steps required to be taken under
the Extradition Act 1988 in relation to a request for extradition may
continue to be taken; but
(b) no person may be extradited under
that Act pursuant to the request unless and until the ICC makes its
determination on admissibility and determines that the case is inadmissible.
(4) Paragraph (3)(b) does not apply if
the ICC does not make its determination on an expedited basis.
39
Procedure where competing request relating to same conduct from a foreign
country that is not a party to the Statute
(1) This section applies if:
(a) section 37 applies; and
(b) the foreign country is not a party
to the Statute.
(2) Priority must be given to the request for
surrender if:
(a) Australia is not under an
international obligation to extradite the person to the foreign country; and
(b) the ICC has determined under article
18 or 19 of the Statute that the case is admissible.
(3) The request for extradition by the
foreign country may continue to be dealt with if:
(a) Australia is not under an
international obligation to extradite the person to the foreign country; and
(b) the ICC has not yet determined under
article 18 or 19 of the Statute that the case is admissible.
(4) Despite subsection (3), no person
may be extradited under the Extradition Act 1988 pursuant to the request
for extradition unless and until the ICC makes its determination on
admissibility and determines that the case is inadmissible.
(5) Subsection (4) does not apply if the
ICC does not make its determination on an expedited basis.
(6) If Australia is under an international
obligation to extradite the person to the foreign country, the Attorney‑General
must determine whether to surrender the person or to extradite the person to
the foreign country.
(7) In making the determination under
subsection (6), the Attorney‑General must consider all relevant
matters, including, but not limited to:
(a) the respective dates of the
requests; and
(b) the interests of the foreign
country, including, if relevant, whether the crime was committed in its
territory and the nationality of the victims and of the person sought; and
(c) the possibility of subsequent
surrender between the ICC and the foreign country.
40
Request from ICC and foreign country relating to different conduct
(1) If a request for surrender of a person is
made and a foreign country requests the extradition of the person for conduct
other than the conduct that forms the basis of the crime for which the person’s
surrender is sought, the Attorney‑General must determine whether the
person is to be surrendered or is to be extradited to the foreign country.
(2) If Australia is not under an
international obligation to extradite the person to the foreign country,
priority must be given to the request from the ICC.
(3) If Australia is under an international obligation
to extradite the person to the foreign country, the Attorney‑General must
determine whether to surrender the person or to extradite the person to the
foreign country.
(4) In making the determination under
subsection (3), the Attorney‑General must consider all relevant
matters, including, but not limited to, the matters specified in subsection
39(7), but must give special consideration to the relative nature and gravity
of the conduct for which surrender and extradition are sought.
41
Notification of decision on extradition to foreign country
(1) If, following notification under article
90 of the Statute, the ICC has determined that a case is inadmissible and the
Attorney‑General subsequently refuses to extradite the person to the
foreign country under the Extradition Act 1988, the Attorney‑General
must notify the ICC of the refusal.
(2) The obligation in this section is in
addition to the requirement of section 14 for the Attorney‑General
to respond formally to the request from the ICC.
42
Detention following surrender warrants
(1) If the Attorney‑General issues a
surrender warrant in relation to a person who is on bail, the person must be
brought as soon as practicable before a magistrate in the State or Territory in
which the person is on remand.
(2) The magistrate must remand the person in
custody for such period or periods as may be necessary to enable the warrant to
be executed.
43
Content of surrender warrants
(1) A surrender warrant in relation to the
person (the relevant person) must:
(a) require the person in whose custody
the relevant person is being held to release the relevant person into the
custody of a police officer; and
(b) authorise the police officer to
transport the relevant person in custody, and, if necessary or convenient, to
detain the relevant person in custody, for the purpose of enabling the relevant
person:
(i) to be placed in the
custody of a specified person who is an officer of the ICC or other person
authorised by the ICC; and
(ii) to be transported to a
place specified by the ICC; and
(c) authorise the specified person to
transport the relevant person in custody to a place specified by the ICC for
the purpose of surrendering the relevant person to a person appointed by the
ICC to receive the person.
(2) A place referred to in
paragraph (1)(b) or (c) may be a place in or outside Australia.
44
Execution of surrender warrants
Subject to this Division, a surrender
warrant must be executed according to its terms.
45
Release from remand
(1) If:
(a) a surrender warrant has been issued
in relation to a person; and
(b) the person is in custody in Australia
under the warrant, or otherwise under this Act, more than 21 days after the day
on which the warrant was first liable to be executed; and
(c) the person applies to the Supreme
Court of the State or Territory in which the person is in custody; and
(d) reasonable notice of the intention
to apply has been given to the Attorney‑General;
the Court must, subject to subsection (2), order that
the person be released from that custody.
(2) However, if the Court is satisfied that
the surrender warrant has not been executed within the period of 21 days, or
since the person last made an application under subsection (1), as the
case may be:
(a) because to do so would have
endangered the person’s life, or would have prejudiced the person’s health; or
(b) for any other reasonable cause;
the Court must not order that the person be released from
custody.
46
Effect of surrender to ICC on person’s terms of imprisonment
(1) If, at the time when a person was
surrendered in connection with a crime within the jurisdiction of the ICC, the
person was serving a sentence of imprisonment in respect of an offence against
a law of the Commonwealth or of a Territory, or was otherwise subject to
detention under a law of the Commonwealth or of a Territory:
(a) any period spent by the person in
custody in connection with the surrender warrant; and
(b) subject to subsection (2), any
period spent by the person in custody in connection with detention by, or on
the order of, the ICC in respect of the crime;
are to be counted as periods served towards the sentence
of imprisonment or period of detention.
(2) If the person is convicted of the crime
within the jurisdiction of the ICC, the period spent by the person in custody
serving a sentence of imprisonment imposed by the ICC for the crime is not to
be counted as a period towards the sentence of imprisonment or period of
detention referred to in subsection (1).
(3) A reference in this section to a period
spent in custody includes a reference to a period spent in custody outside Australia.
47
Expiry of Australian sentences while under ICC detention
If:
(a) at the time when a person was
surrendered, the person was serving a sentence of imprisonment in respect of an
offence against an Australian law, or was otherwise subject to detention under
an Australian law; and
(b) each such sentence of imprisonment
that the person was serving, or each such period of detention to which the
person was subject, at that time expires while the person is being detained by,
or on the order of, the ICC;
the Attorney‑General must without delay inform the
ICC of the expiry.
48
Waiver of rule of speciality
(1) If the ICC requests Australia under
paragraph 2 of article 101 of the Statute to waive the requirements of
paragraph 1 of that article in respect of a person surrendered by Australia,
the Attorney‑General may waive the requirements accordingly.
(2) Before deciding whether to waive the
requirements, the Attorney‑General may request the ICC to provide
additional information in accordance with article 91 of the Statute.
Part 4—Other requests by ICC
Division 1—Preliminary
49
Application of Part
This Part applies to a request for
cooperation other than a request for arrest and surrender, or a request for
provisional arrest, of a person.
Division 2—Documentation to accompany request
50
Documentation for request
(1) A request for cooperation (other than a
request to which subsection (2) applies) must, as applicable, contain or
be supported by:
(a) a concise statement of the purpose
of the request and the assistance requested, including the legal basis and the
grounds for the request; and
(b) as much detailed information as
possible about the location or identification of any person or place that must
be found or identified in order that the assistance requested can be provided;
and
(c) a concise statement of the essential
facts underlying the request; and
(d) the reasons for, and details of, any
procedure or requirement to be followed; and
(e) any other information required under
the regulations to enable the request to be executed; and
(f) any other relevant information that
is necessary to enable the assistance to be provided.
(2) A request for transit under paragraph 3
of article 89 of the Statute must contain, or be accompanied by, the following
information and documents:
(a) a description of the person to be
transported;
(b) a brief statement of the facts of
the case and their legal characterisation; and
(c) a copy of the warrant for arrest and
surrender.
Division 3—Restrictions on provision of assistance
51
Refusal of assistance
(1) The Attorney‑General must refuse a
request for cooperation in circumstances referred to in subsection 142(4) (which
relates to third party information that cannot be disclosed).
(2) The Attorney‑General may refuse a
request for cooperation:
(a) in circumstances referred to in
Part 8 (which relates to the protection of national security interests);
or
(b) if there are competing requests from
the ICC, and from a foreign country that is not a party to the Statute,
relating to the same conduct, and subsection 59(4) applies; or
(c) if there are competing requests from
the ICC, and from a foreign country, relating to different conduct, and
subsection 60(3) applies.
52
Postponement of execution of request
(1) The Attorney‑General may postpone
the execution of a request for cooperation if, and only if:
(a) the execution of the request would
interfere with an ongoing investigation or prosecution in Australia involving
different conduct from the conduct to which the request relates, and
section 54 applies; or
(b) a determination of admissibility is
pending before the ICC, and section 55 applies; or
(c) there are competing requests from
the ICC and from a foreign country to which Australia is under an international
obligation, and paragraph 56(2)(a) applies; or
(d) the request is for assistance under
paragraph 1(l) of article 93 of the Statute, and subsection 11(2) applies; or
(e) the request involves a conflict with
Australia’s international obligations, and subsection 12(4) applies.
(2) Even if subsection (1) applies to a
request for cooperation, the Attorney‑General may decide not to postpone
the execution of the request and, in that event, the request must be dealt with
in accordance with this Part.
(3) If the Attorney‑General postpones
the execution of the request for cooperation, the postponement may be for a
reasonable period and may, if the Attorney‑General considers it
desirable, be extended from time to time.
53
Procedure if assistance precluded under Australian law
If:
(a) the execution of a particular
measure of assistance specified in a request for cooperation is prohibited in Australia;
and
(b) the Attorney‑General consults
with the ICC in accordance with subsection 11(2) in respect of the request; and
(c) the matter is not resolved but the
ICC modifies the request so that it can be dealt with under this Act;
the Attorney‑General must deal with the request
accordingly.
54
Postponement where ongoing Australian investigation or prosecution would be
interfered with
(1) If the immediate execution of a request
for cooperation would interfere with an ongoing investigation or prosecution in
Australia involving different conduct from the conduct to which the request
relates, the Attorney‑General may postpone the execution of the request
for a period agreed between the Attorney‑General and the ICC.
(2) Despite subsection 52(3), the period of
postponement may be no longer than is reasonably necessary to complete the
investigation or prosecution.
(3) Before making a decision to postpone the
execution of a request, the Attorney‑General must consider whether the
assistance could be provided immediately subject to conditions.
(4) If the Attorney‑General decides to
postpone the execution of a request and the ICC requests assistance in the
preservation of evidence under paragraph 1(j) of article 93 of the Statute, the
Attorney‑General must deal with the request in accordance with this Part.
55
Postponement where admissibility challenge
(1) This section applies if the ICC is
considering an admissibility challenge under article 18 or 19 of the Statute in
respect of a case to which a request for cooperation relates.
(2) If the ICC has not made an order under
article 18 or 19 of the Statute allowing the Prosecutor to collect evidence to
which the request relates, the Attorney‑General may postpone the
execution of the request until the ICC has made its determination on admissibility.
(3) If the ICC has made an order under
article 18 or 19 of the Statute allowing the Prosecutor to collect evidence to
which the request relates, the Attorney‑General may not postpone the
execution of the request under this section but must deal with it under this
Part.
(4) If the ICC determines that the case to
which the request relates is inadmissible, the request must be refused.
(5) If the ICC determines that the case to
which the request relates is admissible, and there is no other ground for
refusing or postponing the request, the request must continue to be dealt with
under this Part.
56
Competing requests
(1) If a request for cooperation is made and
a foreign country makes a request for assistance to which Australia is under an
international obligation to respond, the Attorney‑General must, after
consultation with the ICC and that country, try to comply with both requests.
(2) For the purposes of subsection (1),
the Attorney‑General may do either or both of the following:
(a) postpone the execution of either of
the requests;
(b) attach conditions to the provision
of assistance under either or both of the requests.
(3) If it is not possible to resolve the
issue by consultation, the method of dealing with the requests must be resolved
in accordance with sections 57 to 61.
57
Request from ICC and a foreign country relating to same conduct
If a request for cooperation is made and
a foreign country requests assistance from Australia in respect of a matter
relating to the conduct that forms the basis of the crime to which the request
for cooperation relates, the Attorney‑General:
(a) must notify the ICC and the foreign
country of that fact; and
(b) must determine, in accordance with
section 58 or 59, whether the request for cooperation or the request from
the foreign country is to be complied with.
58
Procedure where competing request relating to same conduct from a foreign
country that is a party to the Statute
(1) This section applies if:
(a) section 57 applies; and
(b) the foreign country is a party to
the Statute.
(2) Priority must be given to the request for
cooperation if:
(a) the ICC has, under article 18 or 19
of the Statute, made a determination that the case is admissible and that
determination takes into account the investigation or prosecution conducted by
the foreign country; or
(b) the ICC makes such a determination
after receiving notification of the request from the foreign country.
(3) If the ICC has not made a determination
referred to in subsection (2), then, pending the making of such a
determination:
(a) any preliminary steps required to be
taken to give effect to the request from the foreign country may continue to be
taken; but
(b) the request may not be complied with
unless and until the ICC makes its determination on admissibility and
determines that the case is inadmissible.
(4) Paragraph (3)(b) does not apply if
the ICC does not make its determination on an expedited basis.
59
Procedure where competing request relating to same conduct from a foreign country
that is not a party to the Statute
(1) This section applies if:
(a) section 57 applies; and
(b) the foreign country is not a party
to the Statute.
(2) Priority must be given to the request for
cooperation if:
(a) Australia is not under an international
obligation to comply with the request from the foreign country; and
(b) the ICC has determined under article
18 or 19 of the Statute that the case is admissible.
(3) The request from the foreign country may
continue to be dealt with if:
(a) Australia is not under an
international obligation to comply with the request; and
(b) the ICC has not yet determined under
article 18 or 19 of the Statute that the case is admissible.
(4) If Australia is under an international
obligation to comply with the request from the foreign country, the Attorney‑General
must determine whether the request for cooperation or the request from the
foreign country is to be complied with.
(5) In making a determination under
subsection (4), the Attorney‑General must consider all relevant
matters, including, but not limited to:
(a) the respective dates of the
requests; and
(b) the interests of the foreign
country, including, if relevant, whether the crime to which the request from
that country relates was committed in its territory and the nationality of the
victims and of the person who is alleged to have engaged in the conduct forming
the basis of that crime.
60
Request from ICC and foreign country relating to different conduct
(1) If a request for cooperation is made and
a foreign country requests assistance from Australia in respect of a matter
relating to conduct other than the conduct that forms the basis of the crime to
which the request for cooperation relates, the Attorney‑General must
determine whether the request for cooperation or the request from the foreign
country is to be complied with.
(2) If Australia is not under an
international obligation to comply with the request from the foreign country,
priority must be given to the request for cooperation.
(3) If Australia is under an international
obligation to comply with the request from the foreign country, the Attorney‑General
must determine whether the request for cooperation or the request from the
foreign country is to be complied with.
(4) In making a determination under
subsection (3), the Attorney‑General must consider all relevant
matters, including, but not limited to, the matters specified in subsection
59(5), but must give special consideration to the relative seriousness of the
offences to which the requests relate.
61
Notification to ICC of decision refusing request by foreign country
(1) If, following notification under article
90 of the Statute, the ICC has determined that a case is inadmissible and the
Attorney‑General subsequently refuses the request for assistance from the
foreign country, the Attorney‑General must notify the ICC of the refusal.
(2) The obligation in this section is in
addition to the requirement of section 14 for the Attorney‑General
to respond formally to the request for cooperation.
62
Requests involving competing international obligations
If a request for cooperation relates to
a person who, or information or property that, is subject to the control of a
foreign country or an international organisation under an international
agreement, the Attorney‑General must inform the ICC so as to enable it to
direct its request to the foreign country or international organisation.
Division 4—Identifying or locating persons or things
63
Assistance in identifying or locating persons or things
(1) This section applies if:
(a) the ICC requests assistance in
locating, or identifying and locating, a person or thing; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) the person or thing is or
may be in Australia.
(2) The Attorney‑General is to execute
the request by authorising, in writing, the making of inquiries for the purpose
of locating, or identifying and locating, the person or thing.
(3) If the Attorney‑General authorises
the making of such inquiries, an appropriate authority is to locate, or
identify and locate, the person or thing.
(4) The authority is to notify the Attorney‑General
of the result of the inquiries.
(5) This section does not give to any person
a power to enter premises.
Division 5—Taking evidence or producing documents or articles
64
Attorney‑General may authorise taking of evidence or the production of
documents or articles
(1) This section applies if:
(a) the ICC requests that:
(i) evidence be taken in Australia;
or
(ii) documents or other
articles in Australia be produced; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) there are reasonable
grounds for believing that the evidence can be taken, or the documents or other
articles can be produced, as the case may be, in Australia.
(2) The Attorney‑General is to execute
the request by authorising, in writing:
(a) the taking of evidence or production
of documents or other articles; and
(b) the sending of evidence, documents
or other articles to the ICC.
65
Taking of evidence
(1) If the Attorney‑General authorises
the taking of evidence, a magistrate:
(a) must give written notice to each
person from whom evidence is to be taken stating that the authorisation has
been given and setting out the date and time when, and the place where, the
evidence is to be taken; and
(b) may take the evidence on oath from
each witness appearing before the magistrate to give evidence in relation to
the matter.
(2) Evidence from a witness may be taken by
means of video or audio technology.
(3) A magistrate who takes any such evidence
must:
(a) cause the evidence to be recorded in
writing or in any other form that the magistrate considers to be appropriate in
the circumstances; and
(b) certify that the evidence was taken
by the magistrate; and
(c) cause the writing, or other record
of the evidence, so certified to be sent to the Attorney‑General.
66
Producing documents or other articles
(1) If the Attorney‑General authorises
the production of documents or other articles, a magistrate:
(a) must give written notice to each
person by whom documents or other articles are to be produced stating that the
authorisation has been given and setting out the date and time when, and the
place where, the documents or other articles are to be produced; and
(b) may require production of the
documents or other articles.
(2) Subject to subsection (3), if the
documents or other articles are produced, the magistrate must send them to the
Attorney‑General together with a written statement certifying that they
were produced to the magistrate.
(3) In the case of documents, the magistrate
may send to the Attorney‑General copies of the documents certified by the
magistrate to be true copies.
67
Legal representation
(1) The evidence of a witness may be taken
under section 65 in the presence or absence of:
(a) the person to whom the investigation
conducted by the Prosecutor, or the proceeding before the ICC, relates; or
(b) his or her legal representative (if
any).
(2) The magistrate conducting a proceeding
under either section 65 or 66, or both, may permit:
(a) if the person to whom the
investigation conducted by the Prosecutor, or the proceeding before the ICC,
relates has been notified of the proceeding before the magistrate—that person;
and
(b) any other person giving evidence or
producing documents or other articles at the proceeding before the magistrate;
and
(c) a representative of the Prosecutor
or of the ICC;
to have legal representation at the proceeding before the
magistrate.
68 Form
of certificates
A certificate by a magistrate under
subsection 65(3) or 66(2) must state whether, when the evidence was taken or
the documents or other articles were produced, any of the following persons
were present:
(a) the person to whom the investigation
conducted by the Prosecutor, or the proceeding before the ICC, relates, or his
or her legal representative (if any);
(b) any other person giving evidence or
producing documents or other articles, or his or her legal representative (if
any).
69
Compellability of persons to attend etc.
(1) Subject to subsections (2) and (3),
the laws of each State or Territory with respect to compelling persons:
(a) to attend before a magistrate; and
(b) to give evidence, answer questions,
and produce documents or other articles;
on the hearing of a charge against a person for an offence
against the law of that State or Territory apply, so far as they are capable of
application, with respect to so compelling persons for the purposes of this
Division.
(2) For the purposes of this Division, the
person to whom the investigation conducted by the Prosecutor, or the proceeding
before the ICC, relates, is competent but not compellable to give evidence.
(3) If:
(a) a person is required to give
evidence, or produce documents or other articles, for the purposes of an
investigation conducted by the Prosecutor or a proceeding before the ICC; and
(b) the person is not compellable to
answer a particular question, or to produce a particular document or article,
for the purposes of that investigation or proceeding;
the person is not compellable to answer the question, or
produce the document or article, for the purposes of this Division.
Division 6—Questioning of person being investigated or prosecuted
70
Assistance in questioning persons
(1) This section applies if:
(a) the ICC requests assistance in
questioning a person; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation of the person that is being conducted by the Prosecutor or to a
prosecution of the person before the ICC; and
(ii) the person is or may be in
Australia.
(2) The Attorney‑General is to execute
the request by authorising, in writing, the questioning of the person.
(3) If the Attorney‑General authorises
the questioning of the person, a magistrate is to ask the person in writing to
appear before the magistrate at a specified time and place for the purpose of
being questioned.
(4) If the person appears before the
magistrate:
(a) the magistrate, a police officer or
the DPP may ask the person questions to which the request relates; and
(b) the magistrate must cause a record
in writing, or in another form that the magistrate considers to be appropriate
in the circumstances, to be made of the questions asked and any answers given;
and
(c) the magistrate must certify the
correctness of the record; and
(d) the magistrate must cause the record
so certified to be sent to the Attorney‑General.
(5) If the person refuses or fails to appear
before the magistrate, the magistrate is to notify the Attorney‑General
in writing of the refusal or failure.
71
Procedure where person questioned
(1) Before a person is questioned under
section 70, the person must be informed that there are grounds to believe
that he or she has committed a crime within the jurisdiction of the ICC and
that he or she has the following rights:
(a) the right to remain silent without
such silence being a consideration in the determination of guilt or innocence;
(b) the right to have legal assistance
of his or her choosing or, if he or she does not have legal assistance, to have
legal assistance assigned to him or her in any case where the interests of
justice so require and without payment by him or her in such a case if he or
she does not have sufficient means to pay for the assistance;
(c) the right to have his or her legal
representative present when he or she is questioned unless he or she has
voluntarily waived that right.
(2) If there is any inconsistency between
subsection (1) and any other Australian law, subsection (1) prevails.
(3) This section does not give to any person
a power to require another person to answer questions.
Division 7—Service of documents
72
Assistance in arranging service of documents
(1) This section applies if:
(a) the ICC requests assistance in
arranging for the service of a document in Australia; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) the person is or may be in
Australia.
(2) The Attorney‑General is to execute
the request by authorising, in writing, the service of the document.
(3) If the Attorney‑General authorises
the service of the document, an appropriate authority is to:
(a) cause the document to be served:
(i) in accordance with any
procedure specified in the request; or
(ii) if that procedure would be
unlawful or inappropriate in Australia, or no procedure is specified—in
accordance with Australian law;
and send to the Attorney‑General
a certificate stating that the document has been served; or
(b) if the document is not served—send
to the Attorney‑General a statement of the matters that prevented
service.
(4) In this section:
document includes:
(a) a summons requiring a person to
appear as a witness; and
(b) a summons to an accused person that
has been issued under paragraph 7 of article 58 of the Statute.
(5) If:
(a) a document that is served on a
person pursuant to an authority given under this section is a summons referred
to in subsection (4); and
(b) the person fails to comply with the
summons;
the person commits an offence punishable, on conviction,
by imprisonment for a period not exceeding 12 months.
Division 8—Facilitating the voluntary appearance of persons (other than
prisoners) as witnesses or experts before the ICC
73 Persons
(other than prisoners) assisting investigation or giving evidence
(1) This section applies if:
(a) the ICC requests assistance in
facilitating the voluntary appearance of a person as a witness or expert before
the ICC; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) the person’s appearance is
requested so that the person can assist the investigation or give evidence at
the proceeding; and
(iii) the person is in Australia
and is not a prisoner; and
(iv) the person has consented in
writing to assisting the investigation or giving evidence at the proceeding.
(2) The Attorney‑General is to execute
the request by making arrangements for the travel of the person to the ICC.
Division 9—Temporary transfer of prisoners to the ICC
74
Prisoners assisting investigation or giving evidence
(1) This section applies if:
(a) the ICC requests assistance in
facilitating the temporary transfer of a person to the ICC; and
(b) the person is a prisoner who is in Australia
(whether or not in custody); and
(c) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) the prisoner’s attendance
is requested for the purpose of assisting the investigation or giving evidence
at the proceeding; and
(iii) the prisoner has consented
in writing to assisting the investigation or giving evidence at the proceeding;
and
(iv) the prisoner will be
returned without delay by the ICC to Australia when the purposes of the
transfer have been fulfilled.
(2) If the prisoner is being held in custody,
the Attorney‑General is to execute the request by:
(a) if the prisoner is a federal
prisoner and is not also a State prisoner—directing that the prisoner be
released from prison for the purpose of travelling to the ICC to assist the
investigation or give evidence at the proceeding; or
(b) if the prisoner is a federal prisoner
and also a State prisoner—directing, subject to the obtaining of any approvals
required to be obtained from an authority of the relevant State, that the
prisoner be released from prison for the purpose of such travel; or
(c) if the prisoner is a State prisoner
and is not also a federal prisoner—seeking any approvals required to be
obtained from an authority of the relevant State;
and, in any case, subject to the giving of any necessary
directions or the obtaining of any necessary approvals relevant to release of
the prisoner, making arrangements for such travel in the custody of a police
officer, or prison officer, appointed by the Attorney‑General for the
purpose.
(3) If the prisoner, having been released
from custody on parole, is not being held in custody, the Attorney‑General
is to execute the request by:
(a) if the prisoner is a federal
prisoner and is not also a State prisoner:
(i) approving the travel of
the prisoner to the ICC to assist the investigation or give evidence at the
proceeding; and
(ii) obtaining such parole
decisions as may be required; or
(b) if the prisoner is a federal
prisoner and also a State prisoner—subject to the obtaining of any parole
decisions required to be obtained from an authority of the relevant State:
(i) approving the travel of
the prisoner to the ICC to assist the investigation or give evidence at the
proceeding; and
(ii) obtaining such parole
decisions as may be required; or
(c) if the prisoner is a State prisoner
and is not also a federal prisoner:
(i) approving the travel of
the prisoner to the ICC to assist the investigation or give evidence at the
proceeding; and
(ii) seeking such parole
decisions under the law of the relevant State as may be required;
and, in any case, subject to the obtaining of any
necessary parole decisions, making arrangements for the travel of the prisoner
to the ICC.
(4) In this section:
parole includes any order or licence to be at
large.
parole decision means any approval, authority
or permission relating to parole, and includes any variation of parole.
75
Effect of removal to foreign country on prisoners’ terms of imprisonment
A person who is serving a sentence of
imprisonment for an offence against a law of the Commonwealth or of a
Territory, or is otherwise subject to detention under a law of the Commonwealth
or of a Territory, is taken to continue to serve that sentence of imprisonment,
or to continue to be subject to that detention, at any time during which the
person:
(a) is released from a prison under
section 74 pursuant to a request by the ICC; and
(b) is in custody in connection with the
request (including custody outside Australia).
Division 10—Examination of places or sites
76
Assistance in examining places or sites
(1) This section applies if:
(a) the ICC requests assistance in
examining places or sites in Australia; and
(b) the Attorney‑General is
satisfied that the request relates to an investigation being conducted by the
Prosecutor or a proceeding before the ICC.
(2) The Attorney‑General is to execute
the request by authorising, in writing, the examination of the places or sites.
(3) If the Attorney‑General authorises
the examination of a place or site, an appropriate authority is to:
(a) examine the place or site in the way
sought in the request; and
(b) make such report on the examination
as the authority considers appropriate in the circumstances; and
(c) send the report to the Attorney‑General.
(4) An authorisation under this section
confers power on a person acting under the authorisation to enter a place or
site for the purpose of examining it.
Division 11—Search and seizure
77
Attorney‑General may authorise applications for search warrants
(1) This section applies if:
(a) the ICC makes a request to the
Attorney‑General compliance with which may involve the issue of a search
warrant in relation to evidential material; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) there are reasonable
grounds to believe that the material is in Australia.
(2) The Attorney‑General is to execute
the request by authorising, in writing, a police officer to apply to a
magistrate of the State or Territory in which that material is believed to be
located for a search warrant.
78
Applications for search warrants
(1) If:
(a) a police officer is authorised under
section 77 to apply for a search warrant; and
(b) the police officer has reasonable
grounds for suspecting that the evidential material is, or within the
applicable period referred to in subsection (3) of this section will be,
at any premises;
the police officer may, by an information on oath setting
out the grounds for that suspicion, apply for a search warrant in relation to
the premises to search for that material.
(2) If:
(a) a police officer is authorised under
section 77 to apply for a search warrant; and
(b) the police officer has reasonable
grounds for suspecting that the evidential material is, or within the
applicable period referred to in subsection (3) of this section will be,
in a person’s possession;
the police officer may, by an information on oath setting
out the grounds for that suspicion, apply for a search warrant in relation to
that person to search for that material.
(3) For the purposes of this section, the applicable
period is:
(a) if the application for the warrant
is made by telephone, telex, fax or other electronic means, as provided by
section 116—48 hours; or
(b) otherwise—72 hours.
Note: Part 6 deals with search warrants.
Division 12—Provision of records or documents
79
Facilitating the provision of records or documents
(1) This section applies if:
(a) the ICC requests assistance for the
provision of records or documents, including official records or official
documents; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) the records or documents
are or may be in Australia.
(2) The Attorney‑General is to execute
the request by authorising, in writing, the provision of the records or
documents.
(3) If the Attorney‑General authorises
the provision of records or documents, an appropriate authority is to:
(a) locate and make available the
records or documents; and
(b) make such report on his or her
efforts as he or she considers to be appropriate in the circumstances; and
(c) send to the Attorney‑General
the report and any of the records or documents that are located.
(4) This section does not give to any person
power to require the production of a record or document.
Division 13—Protecting victims and witnesses and preserving evidence
80
Protecting victims and witnesses and preserving evidence
(1) This section applies if:
(a) the ICC requests assistance in
protecting victims or witnesses or preserving evidence; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) the assistance sought is
not prohibited by Australian law.
(2) The Attorney‑General is to execute
the request by authorising, in writing, the provision of the assistance.
(3) If the Attorney‑General authorises
the provision of the assistance, an appropriate authority is to:
(a) give effect to the request; and
(b) prepare such report on his or her
efforts as he or she considers to be appropriate in the circumstances; and
(c) send the report to the Attorney‑General.
Division 14—Identification, tracing, and freezing or seizure, of proceeds
of crimes within the jurisdiction of the ICC
Subdivision A—Preliminary
81
Application of Division
This Division applies if:
(a) the ICC makes a request to the
Attorney‑General for the identification, tracing, and freezing or
seizure, of the proceeds of a crime within the jurisdiction of the ICC; and
(b) the Attorney‑General is
satisfied that a person (in this Division called the defendant):
(i) has been, or is about to
be, charged with the crime before the ICC; or
(ii) has been convicted by the
ICC of the crime.
Subdivision B—Restraining orders
82
Applying for and making restraining orders
(1) If the request from the ICC referred to
in section 81 involves the making of a restraining order, the Attorney‑General
is to authorise the DPP to apply to a specified court for a restraining order
against the property concerned.
(2) The court specified must be a court with
proceeds jurisdiction in a State or Territory in which the property, or some or
all of the property, is reasonably suspected of being located.
(3) If so authorised, the DPP may apply for
such a restraining order against that property in respect of the crime.
(4) Part 2‑1 of the Proceeds of
Crime Act applies to the application, and to any restraining order made as a
result.
(5) It applies as if:
(a) references in that Part to an
indictable offence were references to the crime within the jurisdiction of the
ICC; and
(b) references in that Part to a court
with proceeds jurisdiction were references to the court specified in the DPP’s
authorisation under subsection (1); and
(c) references in that Part to a person
charged with an indictable offence were references to a person against whom a
criminal proceeding in respect of a crime within the jurisdiction of the ICC
has commenced in the ICC; and
(d) references in that Part to it being
proposed to charge a person with an indictable offence were references to it
being reasonably suspected that criminal proceedings are about to commence
against the person in the ICC in respect of a crime within the jurisdiction of
the ICC; and
(e) paragraphs 17(1)(e) and (f),
subsections 17(3) and (4) and sections 18 to 20, 29, 44 and 45 of that Act
were omitted.
83
Excluding property from restraining orders
If:
(a) a court makes a restraining order
under Part 2‑1 of the Proceeds of Crime Act against property in
respect of the crime within the jurisdiction of the ICC; and
(b) a person having an interest in the
property applies to the court under Division 3 of Part 2‑1 of
that Act for an order varying the restraining order to exclude the person’s
interest from the restraining order;
the court must grant the application if the court is
satisfied that:
(c) in a case where the applicant is not
the defendant:
(i) the applicant was not, in
any way, involved in the commission of the crime; and
(ii) if the applicant acquired
the interest at the time of or after the commission, or alleged commission, of
the crime—the property was not proceeds of the crime; or
(d) in any case—it is in the public
interest to do so having regard to any financial hardship or other consequence
of the interest remaining subject to the order.
84 When
restraining order ceases to be in force
(1) If, at the end of the period of one month
after the making of a restraining order in reliance on the proposed charging of
a person with a crime within the jurisdiction of the ICC, the person has not
been charged with the crime or a related crime within the jurisdiction of the
ICC, the order ceases to be in force at the end of that period.
(2) If:
(a) a restraining order is made in
reliance on a person’s conviction of a crime within the jurisdiction of the ICC
or the charging of a person with such a crime; or
(b) a restraining order is made in
reliance on the proposed charging of a person with a crime within the
jurisdiction of the ICC and the person is, within one month after the making of
the order, charged with the crime or a related crime within the jurisdiction of
the ICC;
the following provisions have effect:
(c) if the charge is withdrawn and the
person is not charged with a related crime within the jurisdiction of the ICC
within 28 days after the day on which the charge is withdrawn, the restraining
order ceases to be in force at the end of that period;
(d) if the person is acquitted of the
charge and the person is not charged with a related crime within the
jurisdiction of the ICC within 28 days after the day on which the acquittal
occurs, the restraining order ceases to be in force at the end of that period;
(e) if some or all of the property
subject to the restraining order is forfeited under Part 11, the
restraining order, to the extent to which it relates to that property, ceases
to be in force when that property is forfeited;
(f) the restraining order ceases to be
in force if and when it is revoked.
Subdivision C—Production orders relating to crimes within the jurisdiction
of the ICC
85
Requests for production orders
(1) If:
(a) the request from the ICC referred to
in section 81 involves the issue of a production order requiring that a
property‑tracking document be produced or made available for inspection
in accordance with Australian law; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) there are reasonable
grounds for suspecting that a property‑tracking document in relation to
the crime is located in Australia;
the Attorney‑General may authorise an authorised
officer of an enforcement agency to apply to a magistrate of a specified State
or Territory for a production order under the Proceeds of Crime Act in respect
of the crime for the purpose of obtaining possession of the property‑tracking
document.
(2) The State or Territory specified must be
a State or Territory in which the document is, or some or all of the documents
are, reasonably suspected of being located.
86
Applying for and making production orders
(1) If so authorised, the authorised officer
may apply for such a production order against the property in respect of the
crime.
(2) Part 3‑2 of the Proceeds of
Crime Act applies to the application, and to any production order made as a
result.
(3) It applies as if:
(a) references in that Part to an
indictable offence or to a serious offence were references to the crime within
the jurisdiction of the ICC; and
(b) references in that Part to a
magistrate were references to a magistrate of the State or Territory specified
in the authorised officer’s authorisation under subsection 85(1); and
(c) subparagraphs 202(5)(a)(ii) and
(iii) and (c)(ii) and (iii), paragraph 202(5)(e) and subsection 205(1) of that
Act were omitted.
87
Retaining produced documents
(1) An authorised officer who takes
possession of a document under a production order made in respect of a crime
within the jurisdiction of the ICC may retain the document pending a written
direction from the Attorney‑General as to how to deal with the document.
(2) Directions from the Attorney‑General
may include a direction that the document be sent to the ICC.
Subdivision D—Notices to financial institutions
88
Giving notices to financial institutions
(1) The Attorney‑General or a senior
Departmental officer may give a written notice to a financial institution
requiring the institution to provide to an authorised officer any information
or documents relevant to any one or more of the following:
(a) determining whether an account is
held by a specified person with the financial institution;
(b) determining whether a particular
person is a signatory to an account;
(c) if a person holds an account with
the institution, the current balance of the account;
(d) details of transactions on such an
account over a specified period of up to 6 months;
(e) details of any related accounts
(including names of those who hold those accounts);
(f) a transaction conducted by the
financial institution on behalf of a specified person.
(2) The Attorney‑General or the senior
Departmental officer must not issue the notice unless he or she reasonably
believes that giving the notice is required:
(a) to determine whether to take any
action under this Division, or under the Proceeds of Crime Act in connection
with the operation of this Division; or
(b) in relation to proceedings under
this Division, or under the Proceeds of Crime Act in connection with the
operation of this Division.
(3) In this section:
senior Departmental officer has the same
meaning as in the Proceeds of Crime Act.
89
Contents of notices to financial institutions
The notice must:
(a) state that the officer giving the
notice believes that the notice is required:
(i) to determine whether to
take any action under this Division, or under the Proceeds of Crime Act in
connection with the operation of this Division; or
(ii) in relation to proceedings
under this Division, or under the Proceeds of Crime Act in connection with the
operation of this Division;
(as the case requires); and
(b) specify the name of the financial
institution; and
(c) specify the kind of information or
documents required to be provided; and
(d) specify the form and manner in which
that information or those documents are to be provided; and
(e) state that the information or
documents must be provided within 14 days after the day on which the notice is
received; and
(f) if the notice specifies that
information about the notice must not be disclosed—set out the effect of
section 92 (disclosing existence or nature of a notice); and
(g) set out the effect of
section 93 (failing to comply with a notice).
90
Protection from suits etc. for those complying with notices
(1) No action, suit or proceeding lies
against:
(a) a financial institution; or
(b) an officer, employee or agent of the
institution acting in the course of that person’s employment or agency;
in relation to any action taken by the institution or
person under a notice under section 88 or in the mistaken belief that
action was required under the notice.
(2) A financial institution which, or an
employee or agent of a financial institution who, provides information under a
notice under section 88 is taken, for the purposes of Part 10.2 of
the Criminal Code (offences relating to money‑laundering), not to
have been in possession of that information at any time.
91
Making false statements in applications
A person is guilty of an offence if:
(a) the person makes a statement
(whether orally, in a document or in any other way); and
(b) the statement:
(i) is false or misleading; or
(ii) omits any matter or thing
without which the statement is misleading; and
(c) the statement is made in, or in
connection with, a notice under section 88.
Penalty: Imprisonment for 12 months or 60 penalty units, or
both.
92
Disclosing existence or nature of notice
A person is guilty of an offence if:
(a) the person is given a notice under
section 88; and
(b) the notice states that information
about the notice must not be disclosed; and
(c) the person discloses the existence
or nature of the notice.
Penalty: Imprisonment for 2 years or 120 penalty units, or
both.
93
Failing to comply with a notice
A person is guilty of an offence if:
(a) the person is given a notice under
section 88; and
(b) the person fails to comply with the
notice.
Penalty: Imprisonment for 6 months or 30 penalty units, or
both.
Note: Sections 137.1 and 137.2 of the Criminal
Code also create offences for providing false or misleading information or
documents.
Subdivision E—Monitoring orders relating to crimes within the jurisdiction
of the ICC
94
Requests for monitoring orders
(1) If:
(a) the request from the ICC referred to
in section 81 involves the issue of an order directing a financial
institution to give information about transactions conducted through an account
with the financial institution in Australia; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) information about
transactions conducted through the account with the financial institution in Australia
is reasonably suspected of being relevant to the investigation or proceedings;
the Attorney‑General may authorise an authorised
officer of an enforcement agency to apply to a judge of a specified court for a
monitoring order under the Proceeds of Crime Act in respect of the crime within
the jurisdiction of the ICC for the purpose of obtaining the information
requested by the ICC.
(2) The court specified must be a court of a
State or Territory that has jurisdiction to deal with criminal matters on
indictment.
95
Applying for and making monitoring orders
(1) If so authorised, the authorised officer
may apply for such a monitoring order against the account in respect of the
crime.
(2) Part 3‑4 of the Proceeds of
Crime Act applies to the application, and to any monitoring order made as a
result.
(3) It applies as if:
(a) references in that Part to a serious
offence were references to a crime within the jurisdiction of the ICC; and
(b) disclosing the existence or the
operation of the order for the purpose of complying with a person’s obligations
under section 96 of this Act were a purpose specified in subsection 223(4)
of the Proceeds of Crime Act.
96
Passing on information given under monitoring orders
If an enforcement agency is given
information under a monitoring order made in relation to a crime within the
jurisdiction of the ICC, the enforcement agency must, as soon as practicable
after receiving the information, pass the information on to:
(a) the Attorney‑General; or
(b) an APS employee in the Attorney‑General’s
Department specified by the Attorney‑General by written notice to the
enforcement agency.
Subdivision F—Search warrants relating to proceeds of crime and property‑tracking
documents
97
Requests for search warrants
(1) If:
(a) the request from the ICC referred to
in section 81 involves the issue of a search warrant relating to the
proceeds of the crime within the jurisdiction of the ICC or a property‑tracking
document; and
(b) the Attorney‑General is
satisfied that:
(i) the request relates to an
investigation being conducted by the Prosecutor or a proceeding before the ICC;
and
(ii) proceeds of the crime, or
a property‑tracking document in relation to the crime, is reasonably
suspected of being located in Australia;
the Attorney‑General may authorise an authorised
officer of an enforcement agency to apply to a magistrate of a specified State
or Territory for a search warrant under the Proceeds of Crime Act in relation
to the proceeds or document.
(2) The State or Territory specified must be
a State or Territory in which:
(a) the proceeds, or some or all of the
proceeds, are reasonably suspected of being located; or
(b) the document is, or some or all of
the documents are, reasonably suspected of being located.
98
Applying for and issuing search warrants
(1) If so authorised, the authorised officer
may apply for such a search warrant, in relation to those proceeds or that
document, in respect of the crime.
(2) Part 3‑5 of the Proceeds of
Crime Act applies to the application, and to any search warrant issued as a
result.
(3) It applies as if:
(a) references in that Part to a
property‑tracking document were references to a property‑tracking
document relating to the crime; and
(b) references in that Part to a
magistrate were references to a magistrate of the State or Territory specified
in the authorised officer’s authorisation under subsection 97(1); and
(c) paragraph 228(1)(d) and
sections 256 to 258 of that Act were omitted.
99
Seizure of other property and documents
(1) A search warrant issued under Part 3‑5
of the Proceeds of Crime Act in relation to a crime within the jurisdiction of
the ICC authorises an authorised officer to seize property or a thing that he
or she finds and believes on reasonable grounds to be:
(a) proceeds of the crime or a property‑tracking
document in relation to the crime, although not of the kind specified in the
warrant; or
(b) proceeds of, or a property‑tracking
document in relation to, another crime within the jurisdiction of the ICC in
relation to which a search warrant issued under that Part is in force; or
(c) something that:
(i) is relevant to a
proceeding in the ICC in respect of the crime within the jurisdiction of the
ICC; or
(ii) will afford evidence as to
the commission of an Australian criminal offence.
(2) However, this section only applies if the
authorised officer believes on reasonable grounds that it is necessary to seize
the property or thing in order to prevent its concealment, loss or destruction
or its use in committing an offence.
100
Return of seized property to third parties
(1) A person who claims an interest in
property (other than a property‑tracking document) that has been seized
under a search warrant issued under Part 3‑5 of the Proceeds of
Crime Act in relation to a crime within the jurisdiction of the ICC may apply
to a court for an order that the property be returned to the person.
(2) The court must be a court of the State or
Territory in which the warrant was issued that has proceeds jurisdiction.
(3) The court must order the head of the
authorised officer’s enforcement agency to return the property to the applicant
if the court is satisfied that:
(a) the applicant is entitled to
possession of the property; and
(b) the property is not proceeds of the
relevant crime within the jurisdiction of the ICC; and
(c) the
person who is believed or alleged to have committed the relevant crime within
the jurisdiction of the ICC has no interest in the property.
(4) If the court makes such an order, the
head of the authorised officer’s enforcement agency must arrange for the
property to be returned to the applicant.
(5) This section does not apply to property
that has been seized because it may afford evidence as to the commission of an
Australian criminal offence.
101
Dealing with seized property (other than property‑tracking documents)
Property covered by this section
(1) Property (other than a property‑tracking
document) must be dealt with in accordance with this section if:
(a) it has been seized under a search
warrant issued, pursuant to an authorisation under section 97, under
Part 3‑5 of the Proceeds of Crime Act in relation to a crime within
the jurisdiction of the ICC; and
(b) it has not been seized under
paragraph 99(1)(c).
General rule—property to be returned after 30 days
(2) If, at the end of the period of 30 days
after the day on which the property was seized:
(a) a forfeiture order in relation to
the property has been registered in a court under Part 11; and
(b) a restraining order has not been
made under Subdivision B in respect of the property in relation to the crime
within the jurisdiction of the ICC;
the head of the enforcement agency whose authorised
officer seized the property must, unless subsection (3), (5) or (7)
applies, arrange for the property to be returned to the person from whose
possession it was seized as soon as practicable after the end of that period.
Effect of restraining orders being registered or
obtained
(3) If, before the end of that period, a
restraining order is made under Subdivision B in respect of the property in
relation to the crime within the jurisdiction of the ICC, the head of the
enforcement agency whose authorised officer seized the property:
(a) if there is in force, at the end of
that period, a direction by a court that the Official Trustee take custody and
control of the property—must arrange for the property to be given to the
Official Trustee in accordance with the direction; or
(b) if there is in force at the end of
that period an order under subsection (6) in relation to the property—must
arrange for the property to be retained until it is dealt with in accordance
with another provision of this Act or the Proceeds of Crime Act.
(4) If the property is subject to a direction
of a kind referred to in paragraph (3)(a), the Proceeds of Crime Act
applies to the property as if it were controlled property within the meaning of
that Act.
Retaining property despite restraining orders
(5) If, at a time when the property is in the
possession of the head of the enforcement agency whose authorised officer
seized the property, a restraining order has been made under Subdivision B in
respect of the property in relation to the crime within the jurisdiction of the
ICC, the head of the enforcement agency may apply to the court in which the
restraining order was registered, or by which the restraining order was made,
for an order that the head of the enforcement agency retain possession of the
property.
(6) If the court is satisfied that the head
of the enforcement agency requires the property to be dealt with in accordance
with a request under section 81 that the restraining order be obtained,
the court may make an order that the head of the enforcement agency may retain
the property for so long as the property is so required.
Effect of forfeiture orders by the ICC being registered
or obtained
(7) If, while the property is in the
possession of the head of the enforcement agency whose authorised officer
seized it, a forfeiture order in respect of the property is registered in a
court under Part 11, the head of the enforcement agency must deal with the
property as required by the forfeiture order.
102
Dealing with seized property‑tracking documents
(1) An authorised officer who takes
possession of a property‑tracking document under a warrant issued in
respect of a crime within the jurisdiction of the ICC may retain the document
for a period not exceeding one month pending a written direction from the
Attorney‑General as to how to deal with the document.
(2) Directions from the Attorney‑General
may include a direction that the document be sent to the ICC.
Division 15—Other types of assistance
103
Other types of assistance
(1) This section applies if:
(a) the ICC requests any type of
assistance referred to in paragraph 7(1)(b); and
(b) the Attorney‑General is
satisfied that the request relates to an investigation being conducted by the
Prosecutor or a proceeding before the ICC.
(2) The Attorney‑General must refuse
the request if the request is prohibited by Australian law and:
(a) the ICC does not modify the request
as contemplated by paragraph 3 of article 93 of the Statute and
section 53; or
(b) the assistance requested cannot be
provided in a way referred to in paragraph 5 of article 93 of the Statute and
subsection 11(2) or can only be provided subject to conditions that the ICC
does not accept.
(3) If subsection (2) does not apply,
the Attorney‑General is to execute the request by authorising, in
writing, the provision of the assistance.
(4) If the Attorney‑General authorises
the provision of the assistance, an appropriate authority is to:
(a) take such action as the authority
thinks appropriate in the particular case; and
(b) prepare a written report with
respect to the action taken; and
(c) send the report to the Attorney‑General.
Division 16—Miscellaneous
104
Effect of authorisation to execute request
At any time before a formal response to
a request for cooperation is sent to the ICC, the Attorney‑General may
decide that the request is to be refused, or the execution of the request is to
be postponed, on a ground specified in section 51 or 52 even if the
Attorney‑General has previously authorised the execution of the request.
105
Request may relate to assistance sought by defence
To avoid doubt, if the ICC makes a request
to assist a defendant in the preparation of his or her defence, the request
must be dealt with in the same way as a request for assistance of a similar
type made by the ICC to assist the Prosecutor would be dealt with.
106
Prosecutor may execute request
(1) The Prosecutor may execute a request for
cooperation that does not involve the taking of any compulsory measures in Australia
in the circumstances specified in paragraph 4 of article 99 of the Statute.
(2) If the Attorney‑General identifies
problems with the execution of a request to which paragraph 4(b) of article 99
of the Statute relates, the Attorney‑General must, without delay, consult
with the ICC in order to resolve the matter.
(3) The provisions of this Act and the
Statute, allowing a person heard or examined by the ICC under article 72 of the
Statute to invoke restrictions designed to prevent disclosure of confidential
information connected with national security, apply to the execution of
requests for assistance under article 99 of the Statute.
Part 5—Investigations or sittings of the ICC in Australia
107
Prosecutor may conduct investigations in Australia
The Prosecutor may conduct
investigations in Australia:
(a) in accordance with Part 9 of
the Statute; or
(b) as authorised by the Pre‑Trial
Chamber under paragraph 3(d) of article 57 of the Statute.
108 ICC
sittings in Australia
(1) The ICC may sit in Australia for the
purpose of performing its functions under the Statute or the Rules.
(2) Without limiting subsection (1), the
ICC may sit in Australia for the purpose of:
(a) taking evidence; or
(b) conducting or continuing a
proceeding; or
(c) giving judgment in a proceeding; or
(d) reviewing a sentence.
109
ICC’s powers while sitting in Australia
While the ICC is sitting in Australia,
it may exercise its functions and powers as provided under the Statute and the
Rules.
110 ICC
may require witnesses at sittings in Australia to give undertakings as to
truthfulness of their evidence
The ICC may, at any sitting of the ICC
in Australia, require, in accordance with the Rules, a witness to give an
undertaking as to the truthfulness of the evidence to be given by the witness.
Part 6—Search, seizure and powers of arrest
Division 1—Search warrants
111
When search warrants can be issued
(1) A magistrate may issue a warrant to
search premises if:
(a) an application has been made to the
magistrate under subsection 27(1) or 78(1); and
(b) the magistrate is satisfied by
information on oath that there are reasonable grounds for suspecting that there
is, or within the applicable period referred to in subsection (3) of this
section will be, any evidential material at the premises.
(2) A magistrate may issue a warrant
authorising an ordinary search or a frisk search of a person if:
(a) an application has been made to the
magistrate under subsection 27(2) or 78(2); and
(b) the magistrate is satisfied by
information on oath that there are reasonable grounds for suspecting that the
person has, or within the applicable period referred to in subsection (3)
of this section will have, any evidential material in his or her possession.
(3) For the purposes of subsections (1)
and (2), the applicable period is:
(a) if the application for the warrant
is made by telephone, telex, fax or other electronic means, as provided by
section 116—48 hours; or
(b) otherwise—72 hours.
(4) If the person applying for the warrant
suspects that, in executing the warrant, it will be necessary to use firearms,
the person must state that suspicion, and the grounds for that suspicion, in
the information.
(5) If the person applying for the warrant is
a member or special member of the Australian Federal Police and has, at any
time previously, applied for a warrant relating to the same person or premises,
the person must state particulars of those applications and their outcome in
the information.
(6) A magistrate in New South Wales or the Australian
Capital Territory may issue a warrant in relation to premises or a person in
the Jervis Bay Territory.
(7) A magistrate in a State may:
(a) issue a warrant in relation to
premises or a person in that State; or
(b) issue a warrant in relation to
premises or a person in an external Territory; or
(c) issue a warrant in relation to
premises or a person in another State or in the Jervis Bay Territory if he or
she is satisfied that there are special circumstances that make the issue of
the warrant appropriate; or
(d) issue a warrant in relation to a
person wherever the person is in Australia if he or she is satisfied that it is
not possible to predict where the person may be.
112
Content of warrants
(1) If a magistrate issues a search warrant,
the magistrate is to state in the warrant:
(a) the purpose for which it is issued,
including the crime within the jurisdiction of the ICC to which the application
for the warrant relates; and
(b) a description of the premises to
which the warrant relates or the name or description of the person to whom it
relates; and
(c) the kinds of evidential material
that are to be searched for under the warrant; and
(d) the name of the police officer who,
unless he or she inserts the name of another police officer in the warrant, is
to be responsible for executing the warrant; and
(e) the period for which the warrant
remains in force, which must not be more than:
(i) if the warrant is issued
on an application by telephone, telex, fax or other electronic means as
provided by section 116—48 hours; or
(ii) otherwise—7 days; and
(f) whether the warrant may be executed
at any time or only during particular hours.
(2) Paragraph (1)(e) does not prevent
the issue of successive warrants in relation to the same premises or person.
(3) The magistrate is also to state, in a
warrant in relation to premises:
(a) that the warrant authorises the
seizure of a thing (other than evidential material of the kind referred to in
paragraph (1)(c)) found at the premises in the course of the search that
the executing officer or an officer assisting believes on reasonable grounds to
be:
(i) evidential material; or
(ii) a thing relevant to an
indictable offence against an Australian law;
if the executing officer or an
officer assisting believes on reasonable grounds that seizure of the thing is
necessary to prevent its concealment, loss or destruction or its use in
committing the crime within the jurisdiction of the ICC or an indictable
offence against an Australian law; and
(b) whether the warrant authorises an
ordinary search or a frisk search of a person who is at or near the premises
when the warrant is executed if the executing officer or an officer assisting
suspects on reasonable grounds that the person has any evidential material or
seizable items in his or her possession.
(4) The magistrate is also to state, in a
warrant in relation to a person:
(a) that the warrant authorises the
seizure of a thing (other than evidential material of the kind referred to in
paragraph (1)(c)) found, in the course of the search, in the possession of
the person or in or on a recently used conveyance, being a thing that the
executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material; or
(ii) a thing relevant to an
indictable offence against an Australian law;
if the executing officer or an
officer assisting believes on reasonable grounds that seizure of the thing is
necessary to prevent its concealment, loss or destruction or its use in
committing the crime within the jurisdiction of the ICC or an indictable
offence against an Australian law; and
(b) the kind of search of a person that
the warrant authorises.
113 The
things authorised by a search warrant in relation to premises
(1) A warrant in force in relation to
premises authorises the executing officer or an officer assisting:
(a) to enter the warrant premises and,
if the premises are a conveyance, to enter the conveyance, wherever it is; and
(b) to search for and record
fingerprints found at the premises and to take samples of things found at the
premises for forensic purposes; and
(c) to search the premises for the kinds
of evidential material specified in the warrant, and to seize things of that
kind found at the premises; and
(d) to seize other things found at the
premises in the course of the search that the executing officer or an officer
assisting believes on reasonable grounds to be:
(i) evidential material; or
(ii) things relevant to an
indictable offence against an Australian law;
if the executing officer or an
officer assisting believes on reasonable grounds that seizure of the things is
necessary to prevent their concealment, loss or destruction or their use in
committing the crime within the jurisdiction of the ICC or an indictable
offence against an Australian law; and
(e) to seize other things found at the
premises in the course of the search that the executing officer or an officer
assisting believes on reasonable grounds to be seizable items; and
(f) if the warrant so allows—to conduct
an ordinary search or a frisk search of a person at or near the premises if the
executing officer or an officer assisting suspects on reasonable grounds that
the person has any evidential material or seizable items in his or her
possession.
(2) If the warrant states that it may be
executed only during particular hours, it must not be executed outside those
hours.
114 The
things authorised by a search warrant in relation to a person
(1) A warrant in force in relation to a
person authorises the executing officer or an officer assisting:
(a) to:
(i) search the person as
specified in the warrant; and
(ii) search things found in the
possession of the person; and
(iii) search any recently used
conveyance;
for things of the kind specified
in the warrant; and
(b) to:
(i) seize things of that kind;
and
(ii) record fingerprints from
things; and
(iii) take forensic samples from
things;
found in the course of the search;
and
(c) to seize other things found in the
possession of the person or in or on the conveyance in the course of the search
that the executing officer or an officer assisting believes on reasonable grounds
to be:
(i) evidential material; or
(ii) things relevant to an
indictable offence against an Australian law;
if the executing officer or a
police officer assisting believes on reasonable grounds that seizure of the
things is necessary to prevent their concealment, loss or destruction or their
use in committing the crime within the jurisdiction of the ICC or an indictable
offence against an Australian law; and
(d) to seize other things found in the
course of the search that the executing officer or a police officer assisting
believes on reasonable grounds to be seizable items.
(2) If the warrant states that it may be
executed only during particular hours, it must not be executed outside those
hours.
(3) If the warrant authorises an ordinary
search or a frisk search of a person, a search of the person different from
that so authorised must not be done under the warrant.
115
Restrictions on personal searches
A warrant cannot authorise a strip
search or a search of a person’s body cavities.
116
Warrants may be issued by telephone etc.
(1) A police officer may apply to a
magistrate for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an
application were made in person would frustrate the effective execution of the
warrant.
(2) The magistrate may require communication
by voice to the extent that is practicable in the circumstances.
(3) An application under this section must
include all information required to be provided in an ordinary application for
a warrant, but the application may, if necessary, be made before the
information is sworn.
(4) If an application is made to a magistrate
under this section and the magistrate, after considering the information and
having received and considered such further information (if any) as the
magistrate requires, is satisfied that:
(a) a warrant in the terms of the
application should be issued urgently; or
(b) the delay that would occur if an
application were made in person would frustrate the effective execution of the
warrant;
the magistrate may complete and sign the same form of
warrant as would be issued under section 111.
117
Formalities relating to warrants issued by telephone etc.
(1) If the magistrate decides to issue the
warrant under section 116, the magistrate is to inform the applicant, by
telephone, telex, fax or other electronic means, of the terms of the warrant
and the day on which and the time at which it was signed.
(2) The applicant must then complete a form
of warrant in terms substantially corresponding to those given by the
magistrate, stating on the form the name of the magistrate and the day on which
and the time at which the warrant was signed.
(3) The applicant must, not later than the
day after the day of expiry of the warrant or the day after the day on which
the warrant was executed, whichever is the earlier, give or send to the
magistrate:
(a) the form of warrant completed by the
applicant; and
(b) if the information referred to in
subsection 116(3) was not sworn—that information duly sworn.
(4) The magistrate is to attach to the
documents provided under subsection (3) the form of warrant completed by
the magistrate.
(5) If:
(a) it is material, in any proceedings,
for a court to be satisfied that the exercise of a power under a warrant issued
under section 116 was duly authorised; and
(b) the form of warrant signed by the
magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved,
that the exercise of the power was not duly authorised.
Division 2—Provisions relating to execution of search warrants
118
Availability of assistance and use of force in executing a warrant
In executing a search warrant:
(a) the executing officer may obtain
such assistance; and
(b) the executing officer, or a person
who is a police officer assisting in executing the warrant, may use such force
against persons and things; and
(c) a person who is not a police officer
and has been authorised to assist in executing the warrant may use such force
against things;
as is necessary and reasonable in the circumstances.
119
Copy of warrant to be shown to occupier etc.
(1) If a search warrant in relation to
premises is being executed and the occupier of the premises, or another person
who apparently represents the occupier, is present at the premises, the
executing officer or an officer assisting must make available to that person a
copy of the warrant.
(2) If a search warrant in relation to a
person is being executed, the executing officer or an officer assisting must
make available to that person a copy of the warrant.
(3) If a person is searched under a search
warrant in relation to premises, the executing officer or an officer assisting
must show the person a copy of the warrant.
(4) The executing officer must identify
himself or herself to the person at the premises or the person being searched.
(5) The copy of the warrant referred to in
subsections (1), (2) and (3) need not include the signature of the
magistrate who issued it or the seal of the relevant court.
120
Specific powers available to officers executing warrants
(1) In executing a search warrant in relation
to premises, the executing officer or an officer assisting may:
(a) for a purpose incidental to
execution of the warrant; or
(b) if the occupier of the warrant
premises consents in writing;
take photographs (including video recordings) of the
premises or of things at the premises.
(2) In executing a search warrant in relation
to premises, the executing officer and the police officers assisting may, if
the warrant is still in force, complete the execution of the warrant after all
of them temporarily cease its execution and leave the warrant premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier
of the premises consents in writing.
(3) If:
(a) the execution of a search warrant is
stopped by an order of a court; and
(b) the order is later revoked or
reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
121 Use
of equipment to examine or process things
(1) The executing officer or an officer
assisting may bring to the warrant premises any equipment reasonably necessary
for the examination or processing of things found at the premises in order to
determine whether the things may be seized under the warrant.
(2) If:
(a) it is not practicable to examine or
process the things at the warrant premises; or
(b) the occupier of the premises
consents in writing;
the things may be moved to another place so that the
examination or processing can be carried out in order to determine whether the
things may be seized under the warrant.
(3) If things are moved to another place for
the purpose of examination or processing under subsection (2), the
executing officer must, if it is practicable to do so:
(a) inform the occupier of the address
of the place and the time at which the examination or processing will be
carried out; and
(b) allow the occupier or his or her
representative to be present during the examination or processing.
(4) The executing officer or an officer
assisting may operate equipment already at the warrant premises to carry out
the examination or processing of a thing found at the premises in order to
determine whether it may be seized under the warrant if the executing officer
or police officer assisting believes on reasonable grounds that:
(a) the equipment is suitable for the
examination or processing; and
(b) the examination or processing can be
carried out without damage to the equipment or thing.
122 Use
of electronic equipment at premises
(1) The executing officer or an officer
assisting may operate electronic equipment at the warrant premises to see
whether evidential material is accessible by doing so if he or she believes on
reasonable grounds that the operation of the equipment can be carried out
without damage to the equipment.
(2) If the executing officer or an officer
assisting, after operating the equipment, finds that evidential material is
accessible by doing so, he or she may:
(a) seize the equipment and any disk,
tape or other associated device; or
(b) if the material can, by using
facilities at the premises, be put in a documentary form—operate the facilities
to put the material in that form and seize the documents so produced; or
(c) if the material can be transferred
to a disk, tape or other storage device:
(i) that is brought to the
premises; or
(ii) that is at the premises
and the use of which for the purpose has been agreed to in writing by the
occupier of the premises;
operate the equipment or other
facilities to copy the material to the storage device and take the storage
device from the premises.
(3) Equipment may be seized under
paragraph (2)(a) only if:
(a) it is not practicable to put the
material in documentary form as mentioned in paragraph (2)(b) or to copy
the material as mentioned in paragraph (2)(c); or
(b) possession by the occupier of the
equipment could constitute an offence against an Australian law.
(4) If the executing officer or an officer
assisting believes on reasonable grounds that:
(a) evidential material may be
accessible by operating electronic equipment at the warrant premises; and
(b) expert assistance is required to
operate the equipment; and
(c) if he or she does not take action
under this subsection, the material may be destroyed, altered or otherwise
interfered with;
he or she may do whatever is necessary to secure the
equipment, whether by locking it up, placing a guard or otherwise.
(5) The executing officer or an officer
assisting must give notice to the occupier of the premises of his or her
intention to secure equipment and of the fact that the equipment may be secured
for up to 24 hours.
(6) The equipment may be secured:
(a) for up to 24 hours; or
(b) until the equipment has been
operated by the expert;
whichever happens first.
(7) If the executing officer or an officer
assisting believes on reasonable grounds that the expert assistance will not be
available within 24 hours, he or she may apply to the magistrate who issued the
warrant for an extension of that period.
(8) The executing officer or an officer
assisting must give notice to the occupier of the premises of his or her
intention to apply for an extension, and the occupier is entitled to be heard
in relation to the application.
(9) Division 1 applies, with such
modifications as are necessary, to issuing an extension.
123
Compensation for damage to electronic equipment
(1) This section applies if:
(a) damage is caused to equipment as a
result of it being operated as mentioned in section 121 or 122; or
(b) the data recorded on the equipment
is damaged or programs associated with its use are damaged or corrupted;
because of:
(c) insufficient care being exercised in
selecting the person who was to operate the equipment; or
(d) insufficient care being exercised by
the person operating the equipment.
(2) The Commonwealth must pay to the owner of
the equipment, or the user of the data or programs, such reasonable
compensation for the damage or corruption as they agree on.
(3) However, if the owner or user and the
Commonwealth fail to agree, the owner or user may institute proceedings against
the Commonwealth in the Federal Court for such reasonable amount of
compensation as the Court determines.
(4) In determining the amount of compensation
payable, regard is to be had to whether the occupier of the warrant premises or
the occupier’s employees and agents, if they were available at the time,
provided any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money
appropriated by the Parliament.
(6) For the purposes of subsection (1), damage
to data includes damage by erasure of data or addition of other data.
124
Copies of seized things to be provided
(1) Subject to subsection (2), if an
executing officer or officer assisting seizes, under a warrant in relation to
premises:
(a) a document, film, computer file or
other thing that can be readily copied; or
(b) a storage device the information in
which can be readily copied;
the executing officer or officer assisting must, if
requested to do so by the occupier of the warrant premises or another person
who apparently represents the occupier and is present when the warrant is
executed, give a copy of the thing or the information to that person as soon as
practicable after the seizure.
(2) Subsection (1) does not apply if:
(a) the thing was seized under paragraph
122(2)(b) or (c); or
(b) possession by the occupier of the
document, film, computer file, thing or information could constitute an offence
against an Australian law.
125
Occupier entitled to be present during search
(1) If a warrant in relation to premises is
being executed and the occupier of the premises or another person who
apparently represents the occupier is present at the premises, the person is
entitled to observe the search being conducted.
(2) The right to observe the search being
conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more
areas of the premises being searched at the same time.
126
Receipts for things seized under warrant
(1) If a thing is seized under a warrant or
moved under subsection 121(2), the executing officer or an officer assisting
must provide a receipt for the thing.
(2) If 2 or more things are seized or
removed, they may be covered in the one receipt.
Division 3—Stopping and searching conveyances
127
Searches without warrant in emergency situations
(1) This section applies if a police officer
suspects, on reasonable grounds, that:
(a) evidential material is in or on a
conveyance; and
(b) it is necessary to exercise a power
under subsection (2) in order to prevent the material from being
concealed, lost or destroyed; and
(c) it is necessary to exercise the
power without the authority of a search warrant because the circumstances are
serious and urgent.
(2) The police officer may:
(a) stop and detain the conveyance; and
(b) search the conveyance, and any
container in or on the conveyance, for the material; and
(c) seize the material if he or she
finds it there.
(3) If, in the course of searching for the
material, the police officer finds other evidential material or a thing
relevant to an offence against an Australian law, the police officer may seize
that material or thing if he or she suspects, on reasonable grounds, that:
(a) it is necessary to seize it in order
to prevent its concealment, loss or destruction; and
(b) it is necessary to seize it without
the authority of a search warrant because the circumstances are serious and
urgent.
(4) The police officer must exercise his or
her powers subject to section 128.
128 How
a police officer exercises a power to search without warrant
When a police officer exercises a power
under section 127 in relation to a conveyance, he or she:
(a) may use such assistance as is
necessary; and
(b) must search the conveyance in a
public place or in some other place to which members of the public have ready
access; and
(c) must not detain the conveyance for
longer than is necessary and reasonable to search it and any container found in
or on the conveyance; and
(d) may use such force as is necessary
and reasonable in the circumstances, but must not damage the conveyance or any
container found in or on the conveyance by forcing open a part of the
conveyance or container unless:
(i) the person (if any)
apparently in charge of the conveyance has been given a reasonable opportunity
to open that part or container; or
(ii) it is not possible to give
that person such an opportunity.
Division 4—Arrest and related matters
129
Power to enter premises to arrest person
(1) Subject to subsection (2), if:
(a) a police officer has, under this Act
or pursuant to a warrant issued under this Act, power to arrest a person; and
(b) the police officer believes on
reasonable grounds that the person is on any premises;
the police officer may enter the premises, using such
force as is necessary and reasonable in the circumstances, at any time of the
day or night for the purpose of searching the premises for the person or
arresting the person.
(2) A police officer must not enter a
dwelling house under subsection (1) at any time during the period
commencing at 9 pm on a day and ending at 6 am on the following day unless the
police officer believes on reasonable grounds that:
(a) it would not be practicable to
arrest the person, either at the dwelling house or elsewhere, at another time;
or
(b) it is necessary to do so in order to
prevent the concealment, loss or destruction of evidential material.
(3) In subsection (2):
dwelling house includes a conveyance, and a
room in a hotel, motel, boarding house, or club, in which people ordinarily
retire for the night.
130 Use
of force in making arrest
(1) A person must not, in the course of
arresting another person under this Act or pursuant to a warrant issued under
this Act, use more force, or subject the other person to greater indignity,
than is necessary and reasonable to make the arrest or to prevent the escape of
the other person after the arrest.
(2) Without limiting the operation of
subsection (1), a police officer must not, in the course of arresting a
person under this Act or pursuant to a warrant issued under this Act:
(a) do anything that is likely to cause
the death of, or grievous bodily harm to, the person unless the police officer
believes on reasonable grounds that doing that thing is necessary to protect
life or to prevent serious injury to another person (including the police
officer); or
(b) if the person is attempting to
escape arrest by fleeing—do such a thing unless:
(i) the police officer
believes on reasonable grounds that doing that thing is necessary to protect
life or to prevent serious injury to another person (including the police
officer); and
(ii) the person has, if
practicable, been called on to surrender and the police officer believes on
reasonable grounds that the person cannot be apprehended in any other manner.
131
Persons to be informed of grounds of arrest
(1) A person who arrests another person under
this Act or pursuant to a warrant issued under this Act must inform the other
person, at the time of the arrest, of the crime in respect of which, or, if the
other person is arrested under section 182, the reason for which, the
other person is being arrested.
(2) It is sufficient if the other person is
informed of the substance of the crime or reason, and it is not necessary that
this be done in language of a precise or technical nature.
(3) Subsection (1) does not apply to the
arrest of the other person if:
(a) the other person should, in the
circumstances, know the substance of the crime in respect of which, or the
reason for which, he or she is being arrested; or
(b) the other person’s actions make it
impracticable for the person making the arrest to inform the other person of
the crime in respect of which, or the reason for which, he or she is being
arrested.
132
Power to conduct a frisk search of an arrested person
A police officer who arrests a person
under this Act or pursuant to a warrant issued under this Act, or is present at
such an arrest, may, if the police officer suspects on reasonable grounds that
it is prudent to do so in order to ascertain whether the person is carrying any
seizable items:
(a) conduct a frisk search of the person
at or soon after the time of arrest; and
(b) seize any seizable items found as a
result of the search.
133
Power to conduct an ordinary search of an arrested person
A police officer who arrests a person
under this Act or pursuant to a warrant issued under this Act, or is present at
such an arrest, may, if the police officer suspects on reasonable grounds that
the person is carrying:
(a) evidential material relating to the
crime to which the person’s custody relates; or
(b) a seizable item;
conduct an ordinary search of the person at or soon after
the time of arrest, and seize any such thing found as a result of the search.
134
Power to conduct search of arrested person’s premises
A police officer who arrests a person at
premises under this Act or pursuant to a warrant issued under this Act, or is
present at such an arrest, may seize things in plain view at those premises
that the police officer believes on reasonable grounds to be:
(a) evidential material relating to the
crime to which the person’s custody relates; or
(b) seizable items.
135
Power to conduct an ordinary search or strip search
(1) If a person who has been arrested under
this Act or pursuant to a warrant issued under this Act is brought to a police
station, a police officer may:
(a) if an ordinary search of the person
has not been conducted—conduct an ordinary search of the person; or
(b) subject to this section, conduct a
strip search of the person.
(2) A strip search may be conducted if:
(a) a police officer suspects on
reasonable grounds that:
(i) the person has in his or
her possession evidential material relating to the crime to which the person’s
custody relates; or
(ii) the person has in his or
her possession a seizable item; or
(iii) a visual inspection of the
person’s body will provide evidence of the person’s involvement in that crime;
and
(b) the police officer suspects on
reasonable grounds that it is necessary to conduct a strip search of the person
in order to recover that thing or to discover that evidence; and
(c) a police officer of the rank of
superintendent or higher has approved the conduct of the search.
(3) Subject to section 136, a strip
search may also be conducted if the person consents in writing.
(4) Subject to section 136, a strip
search may be conducted in the presence of a medical practitioner, who may
assist in the search.
(5) The approval may be obtained by
telephone, telex, fax or other electronic means.
(6) A police officer who gives or refuses to
give an approval for the purposes of paragraph (2)(c) must make a record
of the decision and of the reasons for the decision.
(7) Such force as is necessary and reasonable
in the circumstances may be used to conduct a strip search under
subsection (2).
(8) Any item of a kind referred to in
subparagraph (2)(a)(i) or (ii) that is found during a strip search may be
seized.
136
Rules for conduct of strip search
(1) A strip search:
(a) must be conducted in a private area;
and
(b) must be conducted by a police
officer who is of the same sex as the person being searched; and
(c) subject to subsections (3) and
(4), must not be conducted in the presence or view of a person who is of the
opposite sex to the person being searched; and
(d) must not be conducted in the
presence or view of a person whose presence is not necessary for the purposes
of the search; and
(e) must not be conducted on a person
who is under 10 years of age; and
(f) if the person being searched is at
least 10 but under 18 years of age, or is incapable of managing his or her
affairs:
(i) may only be conducted if a
court orders that it be conducted; and
(ii) must be conducted in the
presence of a parent or guardian of the person being searched or, if that is
not acceptable to the person, in the presence of another person (other than a
police officer) who is capable of representing the interests of the person and,
as far as is practicable in the circumstances, is acceptable to the person; and
(g) must not involve a search of a
person’s body cavities; and
(h) must not involve the removal of more
garments than the police officer conducting the search believes on reasonable
grounds to be necessary to determine whether the person has in his or her
possession the item searched for or to establish the person’s involvement in
the crime to which the person’s custody relates; and
(i) must not involve more visual
inspection than the police officer believes on reasonable grounds to be
necessary to establish the person’s involvement in the crime to which the
person’s custody relates.
(2) In deciding whether to make an order
referred to in paragraph (1)(f), the court must have regard to:
(a) the serious nature of the crime to
which the person’s custody relates; and
(b) the age or any disability of the
person; and
(c) such other matters as the court
thinks fit.
(3) A strip search may be conducted in the
presence of a medical practitioner of the opposite sex to the person searched
if a medical practitioner of the same sex as the person being searched is not
available within a reasonable time.
(4) Paragraph (1)(c) does not apply to a
parent, guardian or personal representative of the person being searched if the
person being searched has no objection to the person being present.
(5) If any of a person’s garments are seized
as a result of a strip search, the person must be provided with adequate
clothing.
Division 5—General
137
Conduct of ordinary searches and frisk searches
(1) An ordinary search or a frisk search of a
person under this Part must, if practicable, be conducted by a person of the
same sex as the person being searched.
(2) An officer assisting who is not a police
officer must not take part in an ordinary search or a frisk search of a person
under this Part.
138
Announcement before entry
(1) A police officer must, before any person
enters premises under a warrant or to arrest a person:
(a) announce that he or she is
authorised to enter the premises; and
(b) give any person at the premises an
opportunity to allow entry to the premises.
(2) A police officer is not required to
comply with subsection (1) if he or she believes on reasonable grounds
that immediate entry to the premises is required to ensure:
(a) the safety of a person (including
the police officer); or
(b) that the effective execution of the
warrant or the arrest is not frustrated.
139 Offences
relating to telephone warrants
A person must not:
(a) state in a document that purports to
be a form of warrant under section 116 the name of a magistrate unless
that magistrate issued the warrant; or
(b) state on a form of warrant under
that section a matter that, to the person’s knowledge, departs in a material
particular from the form authorised by the magistrate; or
(c) purport to execute, or present to a
person, a document that purports to be a form of warrant under that section
that:
(i) the person knows has not
been approved by a magistrate under that section; or
(ii) the person knows to depart
in a material particular from the terms authorised by a magistrate under that
section; or
(d) send to a magistrate a form of
warrant under that section that is not the form of warrant that the person
purported to execute.
Penalty: Imprisonment for 2 years.
140
Retention of things seized
(1) If a police officer seizes a thing under
this Part, he or she must deliver it into the custody and control of the
Commissioner of Police of the Australian Federal Police.
(2) Subject to subsection (5), the
Commissioner must:
(a) inform the Attorney‑General
that the thing has been so delivered; and
(b) retain the thing pending the
Attorney‑General’s direction under subsection (3) about how to deal
with the thing; and
(c) comply with any such direction that
the Attorney‑General gives.
(3) The Attorney‑General may, by
written notice, give the Commissioner a direction about how to deal with the
thing.
(4) Without limiting the directions that may
be given, a direction may require the Commissioner to send the thing to the
ICC.
(5) The Attorney‑General must direct
the Commissioner to return the thing if:
(a) the reason for its seizure no longer
exists; or
(b) it is decided that the thing is not
to be used in evidence by the ICC or in respect of criminal proceedings in Australia;
whichever first occurs, unless the thing is forfeited or
forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
141
Magistrate may permit a thing to be retained
(1) If a thing is seized under
section 140 and:
(a) before the end of 60 days after the
seizure; or
(b) before the end of a period
previously specified in an order of a magistrate under this section;
proceedings in respect of which the thing may afford
evidence have not commenced, the Commissioner of Police of the Australian
Federal Police may apply to a magistrate for an order that he or she may retain
the thing for a further period.
(2) If the magistrate is satisfied that it is
necessary for the Commissioner to continue to retain the thing:
(a) for the purposes of an investigation
as to whether an offence has been committed; or
(b) to enable evidence of an offence to
be secured for the purposes of a prosecution;
the magistrate may order that the Commissioner may retain
the thing for a period specified in the order.
(3) Before making the application, the
Commissioner must:
(a) take reasonable steps to discover
who has an interest in the retention of the thing; and
(b) if it is practicable to do so,
notify each person who the Commissioner believes has such an interest that the
application has been made.
Part 7—Information provided in confidence by third party
142
Disclosure of information provided in confidence by third party
(1) If the ICC requests the giving of
information or documents that were provided to Australia on a confidential
basis by a foreign country or by an intergovernmental or international
organisation (in either case referred to as the originator), the
Attorney‑General must seek the consent of the originator before giving
the information or documents to the ICC.
(2) If the originator is a party to the
Statute that consents to disclosure of the information or documents, the
Attorney‑General must, subject to Part 8, give the information or
documents to the ICC.
(3) If the originator is a party to the
Statute that undertakes to resolve the issue of disclosure of the information
or documents with the ICC under article 73 of the Statute, the Attorney‑General
must inform the ICC of the undertaking.
(4) If the originator is not a party to the
Statute and refuses to consent to disclosure of the information or documents,
the Attorney‑General must inform the ICC that he or she is unable to give
the information or documents because of an existing obligation of
confidentiality to the originator.
(5) If the originator is not a party to the
Statute and consents to disclosure of the information or documents, the
Attorney‑General must, subject to Part 8, give the information or
documents to the ICC.
143
Request for Australia’s consent to disclosure
If a request is received from a foreign
country for Australia’s consent to the disclosure to the ICC of information or
documents that had been disclosed by Australia to the country on a confidential
basis, the Attorney‑General must either:
(a) consent to the disclosure; or
(b) undertake to deal with the matter in
accordance with Part 8.
Part 8—Protection of Australia’s national security interests
144 How
national security issues are to be dealt with
If the Attorney‑General becomes
aware of an issue relating to Australia’s national security interests arising
at any stage of any proceedings before the ICC, the issue is to be dealt with in
the manner provided in this Part.
145
Request for cooperation involving national security
(1) If a request for cooperation appears to
relate to the disclosure of any information or documents that would, in the
Attorney‑General’s opinion, prejudice Australia’s national security
interests, the request must be dealt with in accordance with the procedure
specified in sections 148 and 149.
(2) If, after the procedure specified in
sections 148 and 149 is followed, the request for cooperation is not able
to be resolved, the Attorney‑General may refuse the request or decline to
authorise the disclosure.
146
Request to disclose information or documents involving national security
(1) This section applies if a person who has
been requested to disclose information or documents to the ICC:
(a) refuses to do so on the ground that
disclosure would prejudice Australia’s national security interests; or
(b) refers the matter to the Attorney‑General
on that ground.
(2) The Attorney‑General must determine
whether or not he or she is of the opinion that the disclosure would prejudice Australia’s
national security interests.
(3) If the Attorney‑General forms the
opinion that the disclosure would prejudice Australia’s national security
interests, the request for disclosure must be dealt with in accordance with the
procedure specified in sections 148 and 149.
(4) If, after the procedure specified in
sections 148 and 149 is followed, the request for disclosure is not able
to be resolved, the Attorney‑General may refuse the request or decline to
authorise the disclosure.
147
Other situations involving national security
(1) If, in any circumstances other than those
mentioned in sections 145 and 146, the Attorney‑General is of the
opinion that the disclosure of information or documents to the ICC would
prejudice Australia’s national security interests, the matter must be dealt
with in accordance with the procedure specified in section 148 and
subsection 149(1).
(2) Without limiting subsection (1), if:
(a) the Attorney‑General learns
that information or documents relating to Australia are being, or are likely to
be, disclosed at any stage of the proceedings before the ICC and intervenes in
accordance with paragraph 4 of article 72 of the Statute; and
(b) after the procedure specified in
section 148 and subsection 149(1) is followed, the matter is not resolved;
the Attorney‑General may decline to authorise the
disclosure.
148
Consultation with ICC required
The Attorney‑General must consult
with the ICC and, if appropriate, the defence, in accordance with paragraph 5
of article 72 of the Statute.
149
Procedure where no resolution
(1) If, after the consultation, the Attorney‑General
decides that there are no means or conditions under which the information or
documents could be disclosed without prejudice to Australia’s national security
interests, the Attorney‑General must notify the ICC, in accordance with
paragraph 6 of article 72 of the Statute, of the specific reasons for his or
her decision unless a specific description of the reasons would itself result
in prejudice to Australia’s national security interests.
(2) If:
(a) the ICC determines that the
disclosure is relevant and necessary for the establishment of the guilt or
innocence of the accused; and
(b) the issue of disclosure arises in
the circumstances specified in section 145 or 146; and
(c) the Attorney‑General is of the
opinion that Australia’s national security interests would be prejudiced by the
disclosure; and
(d) the ICC requests further
consultations for the purpose of considering the representations, which may
include hearings in camera and ex parte;
the Attorney‑General must consult with the ICC.
Part 9—Transportation of persons in custody through Australia
150
Transportation of persons in custody through Australia
(1) This Part applies to a person (the
transportee) who:
(a) is being surrendered to the ICC by a
foreign country under article 89 of the Statute; or
(b) has been sentenced to imprisonment
by the ICC and is being transferred to or from the ICC, or between foreign
countries, in connection with the sentence.
(2) Subject to this section, the Attorney‑General
must authorise the transportation of the transportee through Australia in the
custody of a person specified by the Attorney‑General if the ICC has, in
accordance with section 8, made a request for the transportation that
contains:
(a) a description of the transportee;
and
(b) a brief statement of the facts of
the case and their legal characterisation; and
(c) the warrant for the arrest and
surrender of the transportee.
(3) The Attorney‑General must not
authorise the transportation through Australia of a person referred to in
paragraph (1)(a) if the Attorney‑General reasonably believes that
the transportation through Australia would impede or delay the surrender of the
person to the ICC.
(4) No authorisation is required for the
transportation of the transportee through Australia by air if no landing of the
aircraft is scheduled to take place in Australia.
(5) However, if an unscheduled landing of an
aircraft carrying the transportee takes place in Australia, the following
provisions have effect:
(a) a police officer may detain the
transportee in custody for a period of 96 hours from the time of the landing;
(b) the Attorney‑General must seek
from the ICC a request for the transportation of the transportee through Australia;
(c) if the Attorney‑General
receives such a request within that period—the transportation of the
transportee may continue and the transportee is to continue to be detained in
custody during the transportation;
(d) if the Attorney‑General does
not receive such a request within that period—the transportee must be released
from custody.
(6) Despite any authorisation by the Attorney‑General
of the transportation through Australia of the transportee, that transportation
is subject to the requirements of section 42 of the Migration Act 1958.
Part 10—Enforcement in Australia of reparation orders made and fines imposed by ICC
151
Assistance with enforcement of orders for reparation to victims
(1) This section applies if:
(a) the ICC:
(i) makes an order under
article 75 of the Statute requiring reparation; and
(ii) requests that the order be
enforced as if article 109 of the Statute were applicable; and
(b) neither the conviction in respect of
which the order was made nor the order requiring reparation is subject to
appeal or further appeal in the ICC.
(2) The Attorney‑General is to execute
the request by authorising, by written notice in the statutory form, the DPP to
apply for the registration of the order in an appropriate court.
152
Assistance with enforcement of orders imposing fines
(1) This section applies if:
(a) the ICC:
(i) orders payment of a fine
under paragraph 2(a) of article 77 of the Statute; and
(ii) requests that the order be
enforced in accordance with article 109 of the Statute; and
(b) neither the conviction in respect of
which the order was made nor the order for payment of the fine is subject to
appeal or further appeal in the ICC.
(2) The Attorney‑General is to execute
the request by authorising, by written notice in the statutory form, the DPP to
apply for the registration of the order in an appropriate court.
153
Registration of order
(1) If the DPP applies to a court for registration
of an order in accordance with an authorisation under section 151 or 152,
the court must register the order and must direct the DPP to publish notice of
the registration in the manner and within the period that the court considers
appropriate.
(2) An order is to be registered in a court
in the same way as the court registers an order made by another Australian
court.
(3) Subject to subsection 154(3), a faxed
copy of an authenticated copy of an order is, for the purposes of
subsection (2) of this section, taken to be the same as the authenticated
copy.
154
Effect of order
(1) An order referred to in section 151
that is registered in a court has effect, and may be enforced, as if it were an
order for the payment of money made by the court at the time of the
registration.
(2) An order referred to in section 152
that is registered in a court has effect, and may be enforced, as if it were an
order imposing a fine made by the court at the time of the registration.
(3) A registration effected by registering a
faxed copy of an authenticated copy of an order ceases to have effect after 21
days unless the authenticated copy of the order has been filed by then in the
court that registered the order.
`
Part 11—Forfeiture of proceeds of international crimes
155
Requests for enforcement of forfeiture orders
(1) This section applies if:
(a) the ICC requests the Attorney‑General
to make arrangements for the enforcement of a forfeiture order made in relation
to property that is reasonably suspected of being in Australia; and
(b) the Attorney‑General is
satisfied:
(i) that a person has been
convicted by the ICC of the crime within the jurisdiction of the ICC to which
the order relates; and
(ii) the conviction and the
order are not subject to appeal or further appeal in the ICC.
(2) The Attorney‑General is to execute
the request by authorising, by written notice in the statutory form, the DPP to
apply for the registration of the order in a court specified in the notice.
(3) The court that the Attorney‑General
specifies in the notice under subsection (2) must be a court with proceeds
jurisdiction in a State or Territory in which the property, or some or all of
the property, is reasonably suspected of being located.
156
Registration of order
(1) If the DPP applies to a court for
registration of an order in accordance with an authorisation under
section 155, the court must register the order.
(2) The DPP must give notice of the
application:
(a) to specified persons who the DPP has
reason to suspect may have an interest in the property; and
(b) to such other persons as the court
directs.
(3) However, the court must consider the
application without notice having been given if the DPP requests the court to
do so.
(4) An order is to be registered in a court by
the registration, under the rules of the court, of a copy of the order
authenticated by the ICC.
(5) Subject to subsection (6), a faxed
copy of an authenticated copy of an order is, for the purposes of
subsection (4), taken to be the same as the authenticated copy.
(6) A registration effected by registering a
faxed copy of an authenticated copy of a forfeiture order ceases to have effect
after 21 days unless the authenticated copy has been filed by then in the court
that registered the order.
157
Effect of order
(1) A forfeiture order registered in a court
has effect, and may be enforced, as if it were an order made by the court under
the Proceeds of Crime Act at the time of registration.
(2) In particular, section 68 of that
Act applies in relation to the forfeiture order as if:
(a) the reference in subparagraph
68(1)(b)(i) of that Act to the DPP having applied for the order were a
reference to the DPP having applied for registration of the order under
section 156 of this Act; and
(b) subparagraph 68(1)(b)(ii) of that
Act were omitted.
(3) Subject to subsection (4) and to
section 158, property that is subject to a forfeiture order registered
under this Part may be disposed of, or otherwise dealt with, in accordance with
any direction of the Attorney‑General or of a person authorised in
writing by the Attorney‑General for the purposes of this subsection.
(4) In giving a direction under
subsection (3), the Attorney‑General or authorised person must
consider any order by the ICC for the property that is subject to the
forfeiture order to be transferred to the ICC Trust Fund.
(5) Sections 69 and 70, Divisions 5
to 7 of Part 2‑2, Part 4‑2 and sections 322 and 323
of the Proceeds of Crime Act do not apply in relation to an order registered
under this Part.
158
Effect on third parties of registration of forfeiture order
Applications by third parties
(1) If a court registers under
section 156 a forfeiture order in relation to property, a person who:
(a) claims an interest in the property;
and
(b) was not convicted of a crime within
the jurisdiction of the ICC to which the order relates;
may apply to the court for an order under
subsection (2).
Orders by the court
(2) If, on an application for an order under
this subsection, the court is satisfied that:
(a) the applicant was not, in any way,
involved in the commission of a crime within the jurisdiction of the ICC to
which the order relates; and
(b) if the applicant acquired the
interest in the property at the time of or after the commission of such a crime—the
property was not proceeds of such a crime;
the court must make an order:
(c) declaring the nature, extent and
value (as at the time when the order is made) of the applicant’s interest in
the property; and
(d) either:
(i) directing the Commonwealth
to transfer the interest to the applicant; or
(ii) declaring that there is
payable by the Commonwealth to the applicant an amount equal to the value
declared under paragraph (c).
Certain people need leave to apply
(3) A person who was given notice of, or
appeared at, the hearing held in connection with the making of the order is not
entitled to apply under subsection (1) unless the court gives leave.
(4) The court may grant leave if it is
satisfied that there are special grounds for doing so.
(5) Without limiting subsection (4), the
court may grant a person leave if the court is satisfied that:
(a) the person, for a good reason, did
not attend the hearing referred to in subsection (3) although the person
had notice of the hearing; or
(b) particular evidence that the person
proposes to adduce in connection with the proposed application under
subsection (1) was not available to the person at the time of the hearing
referred to in subsection (3).
Period for applying
(6) Unless the court gives leave, an application
under subsection (1) is to be made before the end of 6 weeks beginning on
the day when the order is registered in the court.
(7) The court may give leave to apply outside
that period if the court is satisfied that the person’s failure to apply within
that period was not due to any neglect on the person’s part.
Procedural matters
(8) A person who applies under
subsection (1) must give to the DPP notice, as prescribed, of the
application.
(9) The DPP is to be a party to proceedings
on an application under subsection (1). The Attorney‑General may
intervene in such proceedings.
159
Forfeiture may be treated as pecuniary penalty order
(1) This section applies if the Attorney‑General
is unable to give effect to a forfeiture order.
(2) The Attorney‑General must take
measures to recover:
(a) the value specified by the
International Criminal Court to be the value of the property ordered by that
Court to be forfeited; or
(b) if the International Criminal Court
has not specified the value of the property ordered by that Court to be
forfeited—the value that, in the Attorney‑General’s opinion, is the value
of that property.
(3) The forfeiture order is taken, for the
purposes of the Proceeds of Crime Act, to be a pecuniary penalty order for an
amount equal to the value referred to in subsection (2) and may be
enforced as if it were a pecuniary penalty order made by the court in which the
forfeiture order was registered.
(4) Division 4 of Part 2‑4 of
the Proceeds of Crime Act applies to the enforcement of the forfeiture order as
a pecuniary penalty order as if:
(a) references in that Division to
indictable offences or serious offences were references to crimes within the
jurisdiction of the ICC; and
(b) the reference in paragraph 142(2)(a)
of that Act to the order being discharged under Division 5 were a
reference to the conviction being quashed by the ICC; and
(c) subsections 140(3) and (5) of that
Act were omitted.
Part 12—Enforcement in Australia of sentences imposed by ICC
Division 1—Preliminary
160 Australia
may agree to act as State of enforcement
(1) The Attorney‑General may notify the
ICC that Australia is willing to allow persons who are ICC prisoners to serve
their sentences in Australia subject to such conditions (the enforcement
conditions) as Australia imposes and are specified in the instrument of
notification.
(2) The enforcement conditions that may be
imposed include, but are not limited to:
(a) a condition that, unless the
Attorney‑General determines that it is not necessary in a particular
case, the ICC prisoner or his or her representative has consented in writing to
the sentence being served in Australia; and
(b) a condition that the appropriate
Ministerial consent has been given to the sentence being served in Australia;
and
(c) a condition that any appeal or
application for revision in respect of the sentence or in respect of the
conviction on which it is based has been heard and determined or the period for
bringing such an appeal or application has expired; and
(d) a condition that:
(i) on the day of receipt by
Australia of the relevant designation under article 103 of the Statute, at
least 6 months of the ICC prisoner’s sentence remains to be served; or
(ii) if a shorter period
remains to be served on that day, the Attorney‑General has determined
that, in the circumstances, transfer of the ICC prisoner to Australia for a
shorter period is acceptable.
(3) The Attorney‑General may, at any
time, notify the ICC that Australia withdraws a condition specified in the
instrument of notification referred to in subsection (1).
161
Withdrawal of agreement to act as State of enforcement
(1) If the Attorney‑General notifies
the ICC under section 160, the Attorney‑General may, at any time,
withdraw the notification by notifying the ICC that Australia is no longer
willing to allow ICC prisoners to serve their sentences in Australia.
(2) Any notification given under
subsection (1) does not affect the enforcement of sentences for which the
Attorney‑General had, before the notification was given, accepted the
designation given to Australia by the ICC under section 164.
162
Designation of Australia as place for service of sentence
(1) If:
(a) the Attorney‑General has given
a notification under section 160 and has not withdrawn the notification
under section 161; and
(b) the ICC imposes a sentence of
imprisonment on a person convicted of a crime within the jurisdiction of the
ICC; and
(c) the ICC designates Australia, under
article 103 of the Statute, as the country in which the sentence is to be
served;
the Attorney‑General is to consider whether to
accept the designation.
(2) Before accepting the designation, the
Attorney‑General may request the ICC to provide the Attorney‑General
with any relevant information that will enable the Attorney‑General to
assess whether the designation should be accepted.
163
Governmental consent to acceptance of designation
(1) Before accepting the designation, the
Attorney‑General is to determine the State in which it would be most
appropriate for the ICC prisoner to serve the sentence of imprisonment imposed
by the ICC and is to seek the consent of the State Minister concerned.
(2) The Attorney‑General is to provide
the State Minister with particulars of any information that the ICC has given
to the Attorney‑General.
(3) As soon as possible after receiving the
particulars, the State Minister is to inform the Attorney‑General in
writing whether the State Minister consents to the sentence being served in the
State.
(4) If the State Minister refuses to consent
to the sentence being served in the State, the Attorney‑General may seek
the consent of another State Minister to the sentence being served in the State
concerned.
(5) If a State Minister consents to the
sentence being served in the State, that Minister is to notify the Attorney‑General
of:
(a) the prison, or hospital or other
place, in which the ICC prisoner is to serve the sentence in accordance with
this Part in the State; and
(b) any other matters that the State
Minister considers relevant to the service of the sentence in the State.
Note: An ICC prisoner may be transferred from the
prison, hospital or other place in the State in which he or she begins to serve
a sentence of imprisonment to another prison, hospital or other place in the
State or to a prison, hospital or other place in another State (see paragraphs
172(5)(c), (d) and (h)).
164
Acceptance of designation
(1) The Attorney‑General may accept the
designation if:
(a) the Attorney‑General is
satisfied that the ICC has agreed to the enforcement conditions; and
(b) in the case of a prisoner who is not
an Australian citizen—the Minister administering the Migration Act 1958
has consented to the sentence of imprisonment being served by the ICC prisoner
in Australia; and
(c) a State Minister has consented to
the sentence of imprisonment being served by the ICC prisoner in the State.
(2) When the Attorney‑General notifies
the ICC of the acceptance of the designation, the Attorney‑General is
also to notify the ICC whether the written consent of the ICC prisoner or his
or her representative to the sentence being served in Australia is required
and, if such a consent is required, ask the ICC to inform the Attorney‑General
when it has been obtained.
Division 2—Transfer to Australia of ICC prisoners
165
Issue of warrant for transfer to Australia
The Attorney‑General may issue a
warrant, by writing in the statutory form, for the transfer of an ICC prisoner
to Australia if:
(a) the ICC’s agreement to the
enforcement conditions; and
(b) the written consent of the prisoner
or his or her representative to the sentence being served in Australia (if the
Attorney‑General considers such consent is necessary); and
(c) the appropriate Ministerial consent
to the sentence being served in Australia;
have been obtained.
166
Warrants for transfer to Australia
(1) A warrant for the transfer of an ICC
prisoner to Australia authorises the transfer of the prisoner to Australia to
serve the sentence of imprisonment imposed by the ICC in accordance with the
enforcement conditions.
(2) A warrant must:
(a) specify the name and date of birth
of the prisoner to be transferred; and
(b) specify the country from which the
prisoner is to be transferred; and
(c) state that:
(i) the ICC’s agreement to the
enforcement conditions; and
(ii) the written consent of the
prisoner or his or her representative to the sentence being served in Australia
(if the Attorney‑General considers such consent is necessary); and
(iii) the appropriate
Ministerial consent to the sentence being served in Australia;
have been obtained.
(3) The warrant is:
(a) to authorise an escort officer to
collect the prisoner from a place (whether in Australia or a foreign country)
specified in the warrant; and
(b) if the place is in a foreign country—to
authorise:
(i) the escort officer to
transport the prisoner in custody to Australia for surrender to a person
appointed by the Attorney‑General to receive the prisoner; and
(ii) if appropriate, the
appointed person to escort the prisoner to the prison, or hospital or other
place, in Australia where the prisoner is to begin to serve the sentence of
imprisonment in accordance with this Part; and
(c) if the place is in Australia—to
authorise the escort officer to escort the prisoner to the prison, or hospital
or other place, in Australia where the prisoner is to begin to serve the
sentence of imprisonment in accordance with this Part; and
(d) if the prisoner is to be escorted to
a prison—to require the superintendent of the prison to take the prisoner into
custody to be dealt with in accordance with this Part; and
(e) if the prisoner is to be escorted to
a hospital or other place—to authorise his or her detention in the hospital or
place to be dealt with in accordance with this Part.
Note: An ICC prisoner may be transferred from the
prison, hospital or other place in the State in which he or she begins to serve
a sentence of imprisonment to another prison, hospital or other place in the
State or to a prison, hospital or other place in another State (see paragraphs
172(5)(e), (d) and (h)).
(4) The Attorney‑General may give any
direction or approval that is necessary to ensure that the warrant is executed
in accordance with its terms.
167
Cancellation of warrant
(1) The Attorney‑General may cancel a
warrant for the transfer of an ICC prisoner to Australia at any time before the
prisoner leaves the foreign country in which he or she is being held in
custody.
(2) Without limiting the grounds on which the
Attorney‑General may cancel a warrant for the transfer of an ICC prisoner
to Australia, it must be cancelled if:
(a) the ICC cancels the designation of Australia
or decides not to accept an enforcement condition; or
(b) the Attorney‑General, the
Minister administering the Migration Act 1958 or a State Minister
withdraws consent; or
(c) where the consent of the prisoner or
his or her representative to the sentence being served in Australia was
required by the Attorney‑General—the prisoner or representative withdraws
consent.
Division 3—Enforcement of sentences
168
Sentence enforcement in Australia
The Attorney‑General may determine
that a sentence of imprisonment imposed on an ICC prisoner by the ICC be
enforced on transfer of the prisoner to Australia under this Part.
169
Duration and nature of enforced sentence
(1) The sentence of imprisonment to be
enforced must not be harsher, in legal nature, than the sentence of
imprisonment imposed by the ICC.
(2) Without limiting subsection (1), the
sentence to be enforced under this Part:
(a) must not be for a longer duration
than the sentence imposed by the ICC; and
(b) must not be of a kind that involves
a more severe form of deprivation of liberty than the sentence of imprisonment
imposed by the ICC.
170
Directions about enforcement of sentence
(1) The Attorney‑General
may, subject to section 169, give such directions as the Attorney‑General
considers appropriate as to the duration and legal nature of the sentence of
imprisonment as it is to be enforced under this Part.
(2) However, a
direction reducing the sentence may only be given in accordance with a decision
of the ICC under article 110 of the Statute.
(3) Without
limiting subsection (1), directions may be given, in respect of a mentally
impaired prisoner, as to any review to be undertaken of his or her mental
condition and treatment to be provided to him or her following transfer.
(4) For the purpose
of forming an opinion or exercising a discretion under this section, the
Attorney‑General may inform himself or herself as he or she thinks fit
and, in particular, may have regard to the following:
(a) any relevant decisions of the ICC;
(b) any views expressed by any State
Minister concerned with the proposed transfer;
(c) any views expressed by prison
authorities of any State;
(d) the legal nature of the sentence of
imprisonment that might have been imposed if the acts or omissions constituting
the crime within the jurisdiction of the ICC had been committed in Australia;
(e) any limitations or requirements
arising under the Statute in relation to the way in which a sentence of
imprisonment imposed by the ICC may be enforced in Australia.
171 No
appeal or review of sentence of imprisonment imposed by ICC or of sentence
enforcement decisions of Attorney‑General
(1) On transfer of an ICC prisoner to
Australia under this Part, no appeal or review lies in Australia against the
sentence of imprisonment imposed by the ICC.
(2) No appeal or review lies against a
decision of the Attorney‑General about the enforcement in Australia under
this Part of a sentence of imprisonment imposed by the ICC.
172 ICC
prisoner transferred to Australia to be regarded as a federal prisoner
(1) For the purpose of enforcement in
Australia of a sentence of imprisonment by the ICC, on transfer of the ICC
prisoner to Australia under this Part:
(a) the sentence is taken to be a
federal sentence of imprisonment; and
(b) the prisoner is taken to be a
federal prisoner.
(2) Any period of the sentence of
imprisonment as originally imposed by the ICC that was served by the ICC prisoner
before the transfer is taken to have been served under the sentence of
imprisonment as it is enforced under this Part.
(3) An ICC prisoner who is transferred to
Australia under this Part may, while serving a sentence of imprisonment imposed
by the ICC that is enforced under this Part, be detained in a prison, or in a
hospital or other place, in a State.
(4) Subject to subsection (6), any
relevant Australian law, or practice or procedure lawfully observed, about the
detention of prisoners applies in relation to the ICC prisoner on or after his
or her transfer to Australia to the extent that it is capable of applying
concurrently with this Part.
(5) Without limiting subsection (4),
Australian law, and practice and procedure, relating to the following matters
are applicable to an ICC prisoner who is transferred to Australia under this
Part:
(a) conditions of imprisonment and
treatment of prisoners;
(b) classification and separation of
prisoners;
(c) removal of prisoners from one prison
to another;
(d) removal of prisoners between prisons
and hospitals or other places or between one hospital or other place and
another;
(e) treatment of mentally impaired
prisoners;
(f) subject to subsection (6),
eligibility for participation in prison programs;
(g) temporary absence from prison (for
example, to work or seek work, to attend a funeral or visit a relative
suffering a serious illness or to attend a place of education or training);
(h) transfer of prisoners between
States.
(6) Australian law, and practice and
procedure, relating to release of prisoners on parole or release under a pre‑release
permit scheme (however called) are not applicable to an ICC prisoner who is
transferred to Australia under this Part.
173
Other matters relating to ICC prisoners
(1) An ICC prisoner has the right to
communicate on a confidential basis with the ICC, without impediment from any
person.
(2) A Judge of the ICC or a member of the
staff of the ICC may visit an ICC prisoner for the purpose of hearing any
representations by the prisoner without the presence of any other person except
a representative of the prisoner.
(3) The Attorney‑General must advise
the ICC if an ICC prisoner is transferred from a prison to a hospital or other
place, or from a hospital or other place to another hospital or other place.
174
Pardon, amnesty or commutation of sentences of imprisonment imposed on ICC
prisoners transferred to Australia
(1) Subject to the prior agreement of the
ICC, during the period in which a sentence of imprisonment is served in
Australia by an ICC prisoner transferred to Australia under this Part, the
prisoner may be pardoned or granted any amnesty or commutation of sentence of
imprisonment that could be granted under Australian law if the sentence of
imprisonment had been imposed for an offence against an Australian law.
(2) The Attorney‑General is to direct,
by written notice in the statutory form, that an ICC prisoner must not be
detained in custody or otherwise be subjected to detention or supervision in
Australia under a sentence of imprisonment imposed by the ICC and enforced
under this Part if, during the period in which the sentence is served in
Australia:
(a) the ICC notifies the Attorney‑General
that the ICC prisoner may be pardoned or granted amnesty or commutation of
sentence of imprisonment under an Australian law and the ICC prisoner is so
pardoned or granted such amnesty or commutation of sentence of imprisonment; or
(b) the ICC notifies the Attorney‑General
that the ICC prisoner’s conviction has been quashed or otherwise nullified or
that the prisoner has been pardoned or granted commutation of sentence of
imprisonment by the ICC.
175 ICC
prisoner may apply to be transferred from Australia to a foreign country
An ICC prisoner serving a sentence in
Australia may, at any time, apply to the ICC to be transferred from Australia
to complete the service of the sentence in a foreign country.
176 How
ICC prisoner is to be transferred
(1) This section applies if an ICC prisoner
is to be transferred from Australia to a foreign country to complete the
service of his or her sentence.
(2) The Attorney‑General may issue a
warrant, by writing in the statutory form, for the transfer of the prisoner.
(3) The warrant authorises the transfer of
the prisoner from Australia to the foreign country to complete the service of
his or her sentence.
(4) The warrant must:
(a) specify the name and date of birth
of the prisoner; and
(b) state that the prisoner is to be
transferred from Australia to the foreign country to complete the service of
his or her sentence; and
(c) authorise an escort officer to
collect the prisoner from the prison in which he or she is held in custody, or
from the hospital or other place where he or she is detained, and transport the
prisoner in custody to the foreign country; and
(d) require the superintendent of the
prison, or the person in charge of the hospital or other place, to release the
prisoner into the custody of the escort officer.
177
Special rules in certain cases
(1) An ICC prisoner serving a sentence in
Australia may:
(a) be extradited to a foreign country
in accordance with the Extradition Act 1988 either:
(i) after the completion of,
or release from, the sentence; or
(ii) during the sentence, but
only for a temporary period; or
(b) be required to remain in Australia
in order to serve a sentence that he or she is liable to serve under Australian
law.
(2) Despite subsection (1):
(a) a person to whom
paragraph (1)(a) applies may not, without the prior agreement of the ICC,
be extradited to a foreign country; and
(b) a person to whom
paragraph (1)(b) applies may not, without the prior agreement of the ICC,
be prosecuted or punished in Australia;
for an offence constituted by an act or omission that
occurred before the making of the relevant designation referred to in paragraph
162(1)(c).
(3) Subsection (2) does not apply to a
person who:
(a) remains voluntarily in Australia for
more than 30 days after the date of completion of, or release from, the
sentence imposed by the ICC; or
(b) voluntarily returns to Australia
after having left it.
178
Extradition of escaped ICC prisoner
(1) If:
(a) an ICC prisoner serving a sentence
in a foreign country escapes from custody and is located in Australia; and
(b) the foreign country makes a request
to Australia for the person’s surrender in accordance with article 111 of the
Statute;
the Extradition Act 1988 applies to the request:
(c) subject to necessary limitations,
conditions, exceptions or qualifications; and
(d) as if the request related to a
person who had been convicted of an extradition offence (within the meaning of
that Act).
(2) If:
(a) an ICC prisoner serving a sentence
in Australia escapes from custody and is located in a foreign country; and
(b) the Attorney‑General wishes to
make a request to that country for the person’s surrender in accordance with
article 111 of the Statute;
the Attorney‑General may request the person’s
extradition under the Extradition Act 1988, and that Act applies:
(c) with any necessary limitations,
conditions, exceptions or qualifications; and
(d) as if the request related to a
person who had been convicted of an extradition offence (within the meaning of
that Act).
Part 13—Requests by Australia to ICC
179
Application of Part
This Part applies where:
(a) an investigation is taking place in Australia;
or
(b) a prosecution has been instituted in
Australia;
in respect of conduct that is a crime within the
jurisdiction of the ICC or is an indictable offence against Australian law.
180
Request by Attorney‑General
(1) The Attorney‑General may request
the ICC to provide assistance under paragraph 10 of article 93 of the Statute
in connection with the investigation or prosecution.
(2) The assistance that may be requested
includes, but is not limited to, the following:
(a) the sending of statements, documents
or other types of evidence obtained in the course of an investigation or trial
conducted by the ICC;
(b) the questioning of a person detained
by order of the ICC.
Part 14—Miscellaneous
181
Attorney‑General’s decisions in relation to certificates to be final
(1) Subject to any jurisdiction of the High
Court under the Constitution, a decision by the Attorney‑General to
issue, or to refuse to issue, a certificate under section 22 or 29:
(a) is final; and
(b) must not be challenged, appealed
against, reviewed, quashed or called in question; and
(c) is not subject to prohibition,
mandamus, injunction, declaration or certiorari.
(2) The reference in subsection (1) to a
decision includes a reference to the following:
(a) a decision to vary, suspend, cancel
or revoke a certificate that has been issued;
(b) a decision to impose a condition or
restriction in connection with the issue of, or a refusal to issue, a
certificate or to remove a condition or restriction so imposed;
(c) a decision to do anything
preparatory to the making of a decision to issue, or to refuse to issue, a
certificate or preparatory to the making of a decision referred to in
paragraph (a) or (b), including a decision for the taking of evidence or
the holding of an inquiry or investigation;
(d) a decision doing or refusing to do
anything else in connection with a decision to issue, or to refuse to issue, a
certificate or a decision referred to in paragraph (a), (b) or (c);
(e) a failure or refusal to make a
decision whether or not to issue a certificate or a decision referred to in a
paragraph (a), (b), (c) or (d).
(3) Any jurisdiction of the High Court
referred to in subsection (1) is exclusive of the jurisdiction of any
other court.
182
Arrest of persons escaping from custody or contravening conditions of
recognisances
(1) A police officer may, without warrant,
arrest a person, if the police officer has reasonable grounds to believe that
the person has escaped from custody authorised by this Act.
(2) A police officer may, without warrant,
arrest a person who has been released on bail under this Act if the police
officer has reasonable grounds for believing that the person has contravened,
or is about to contravene, a term or condition of a recognisance on which bail
was granted to the person.
(3) A police officer who arrests a person
under subsection (1) or (2) must, as soon as practicable, take the person
before a magistrate.
(4) If the magistrate is satisfied that the
person has escaped from custody authorised by this Act or has contravened, or
is about to contravene, a term or condition of a recognisance, the magistrate
may issue a warrant, by writing in the statutory form, authorising any police
officer to return the person to the custody from which the person escaped, or
was released on the recognisance, as the case may be.
183
Aiding persons to escape etc.
Sections 46, 47A and 48 of the Crimes
Act 1914 (other than paragraphs 46(1)(ab) and 47A(1)(d) of that Act) apply
as if:
(a) references in those sections to
custody in respect of any offence against a law of the Commonwealth were
references to custody while in Australia pursuant to this Act; and
(b) references in those sections to
arrest in respect of any offence against a law of the Commonwealth were
references to arrest pursuant to this Act.
184
Cost of execution of requests
The Commonwealth is liable to pay any
costs incurred in connection with dealing with a request for cooperation other
than costs that, under article 100 of the Statute, are to be borne by the ICC.
185
Legal assistance
(1) A person who:
(a) has instituted, or proposes to
institute, a proceeding before a magistrate or a court under this Act or in
respect of detention under this Act; or
(b) is, or will be, a party to such a
proceeding; or
(c) is, or will be, giving evidence or
producing documents or other articles at such a proceeding;
may apply to the Attorney‑General for assistance
under this section in respect of the proceeding.
(2) If the Attorney‑General is
satisfied that:
(a) it would involve hardship to the
person to refuse the application; and
(b) in all the circumstances, it is
reasonable that the application be granted;
the Attorney‑General may authorise provision by the
Commonwealth to the person of such legal or financial assistance in relation to
the proceeding as the Attorney‑General determines.
(3) The assistance may be granted
unconditionally or subject to such conditions as the Attorney‑General
determines.
186 Arrangements
with States
(1) The Governor‑General may make
arrangements with the Governor of a State with respect to the administration of
this Act, including arrangements relating to the performance of functions or
the exercise of powers under this Act by officers of the State.
(2) An arrangement may be varied or
terminated at any time.
(3) The Attorney‑General is to cause
notice of the making, variation or termination of an arrangement to be
published in the Gazette.
(4) The reference in subsection (1) to
the Governor of a State is:
(a) in relation to the Australian
Capital Territory—a reference to the Chief Minister for that Territory; or
(b) in relation to the Northern
Territory—a reference to the Administrator of that Territory; or
(c) in relation to Norfolk Island—a
reference to the Administrator of Norfolk Island.
187
Delegation
The Attorney‑General may delegate
in writing all or any of his or her powers and functions under this Act or the
regulations, other than powers and functions under section 12 and
Parts 3, 8 and 12 to:
(a) the Secretary of the Department; or
(b) an SES employee in the Department.
188
Regulations
(1) The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act to
be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) In particular, regulations may make
provision for or in respect of information to be provided to ICC prisoners for
the purposes of Part 12.
(3) The regulations may prescribe penalties
not exceeding a fine of 10 penalty units for offences against the regulations.
189
Annual report
The Department must publish each year,
as an appendix to the Department’s Annual Report for that year, a report on the
operation of this Act, the operations of the ICC, and the impact of the
operations of the ICC on Australia’s legal system.
Schedule 1—Rome Statute of the
International Criminal Court
Note: See section 4
ROME
STATUTE OF THE INTERNATIONAL CRIMINAL COURT
PREAMBLE
The States Parties to this Statute,
Conscious that all peoples are united by common bonds,
their cultures pieced together in a shared heritage, and concerned that this
delicate mosaic may be shattered at any time,
Mindful that during this century millions of children,
women and men have been victims of unimaginable atrocities that deeply shock
the conscience of humanity,
Recognizing that such grave crimes threaten the peace,
security and well‑being of the world,
Affirming that the most serious crimes of concern to
the international community as a whole must not go unpunished and that their
effective prosecution must be ensured by taking measures at the national level
and by enhancing international cooperation,
Determined to put an end to impunity for the
perpetrators of these crimes and thus to contribute to the prevention of such
crimes,
Recalling that it is the duty of every State to
exercise its criminal jurisdiction over those responsible for international
crimes,
Reaffirming the Purposes and Principles of the Charter
of the United Nations, and in particular that all States shall refrain from the
threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the
Purposes of the United Nations,
Emphasizing in this connection that nothing in this
Statute shall be taken as authorizing any State Party to intervene in an armed
conflict or in the internal affairs of any State,
Determined to these ends and for the sake of present and
future generations, to establish an independent permanent International
Criminal Court in relationship with the United Nations system, with
jurisdiction over the most serious crimes of concern to the international
community as a whole,
Emphasizing that the International Criminal Court
established under this Statute shall be complementary to national criminal
jurisdictions,
Resolved to guarantee lasting respect for and the
enforcement of international justice,
Have agreed as follows
PART
1. ESTABLISHMENT OF THE COURT
Article
1
The Court
An International Criminal Court (“the Court”) is
hereby established. It shall be a permanent institution and shall have the
power to exercise its jurisdiction over persons for the most serious crimes of
international concern, as referred to in this Statute, and shall be
complementary to national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the provisions of this Statute.
Article
2
Relationship of
the Court with the United Nations
The Court shall be brought into relationship
with the United Nations through an agreement to be approved by the Assembly of
States Parties to this Statute and thereafter concluded by the President of the
Court on its behalf.
Article
3
Seat of the Court
1. The seat of the Court shall be established at The
Hague in the Netherlands (“the host State”).
2. The Court shall enter into a headquarters
agreement with the host State, to be approved by the Assembly of States Parties
and thereafter concluded by the President of the Court on its behalf.
3. The Court may sit elsewhere, whenever it
considers it desirable, as provided in this Statute.
Article
4
Legal status and
powers of the Court
1. The Court shall have international legal
personality. It shall also have such legal capacity as may be necessary for the
exercise of its functions and the fulfilment of its purposes.
2. The Court may exercise its functions and powers,
as provided in this Statute, on the territory of any State Party and, by
special agreement, on the territory of any other State.
PART
2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW
Article
5
Crimes within the
jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to
the most serious crimes of concern to the international community as a whole.
The Court has jurisdiction in accordance with this Statute with respect to the
following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
2. The Court shall exercise jurisdiction over the
crime of aggression once a provision is adopted in accordance with articles 121
and 123 defining the crime and setting out the conditions under which the Court
shall exercise jurisdiction with respect to this crime. Such a provision shall
be consistent with the relevant provisions of the Charter of the United
Nations.
Article
6
Genocide
For the purpose of this Statute, “genocide”
means any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of
the group;
(c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within
the group;
(e) Forcibly transferring children of the group to
another group.
Article
7
Crimes against
humanity
1. For the purpose of this Statute, “crime against
humanity” means any of the following acts when committed as part of a
widespread or systematic attack directed against any civilian population, with
knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence of
comparable gravity;
(h) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural, religious,
gender as defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the
Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally
causing great suffering, or serious injury to body or to mental or physical
health.
2. For the purpose of paragraph 1:
(a) “Attack directed against any civilian population”
means a course of conduct involving the multiple commission of acts referred to
in paragraph 1 against any civilian population, pursuant to or in furtherance
of a State or organizational policy to commit such attack;
(b) “Extermination” includes the intentional infliction
of conditions of life, inter alia the deprivation of access to food and
medicine, calculated to bring about the destruction of part of a population;
(c) “Enslavement” means the exercise of any or all of
the powers attaching to the right of ownership over a person and includes the
exercise of such power in the course of trafficking in persons, in particular
women and children;
(d) “Deportation or forcible transfer of population”
means forced displacement of the persons concerned by expulsion or other
coercive acts from the area in which they are lawfully present, without grounds
permitted under international law;
(e) “Torture” means the intentional infliction of
severe pain or suffering, whether physical or mental, upon a person in the
custody or under the control of the accused; except that torture shall not
include pain or suffering arising only from, inherent in or incidental to,
lawful sanctions;
(f) “Forced pregnancy” means the unlawful confinement
of a woman forcibly made pregnant, with the intent of affecting the ethnic
composition of any population or carrying out other grave violations of
international law. This definition shall not in any way be interpreted as
affecting national laws relating to pregnancy;
(g) “Persecution” means the intentional and severe
deprivation of fundamental rights contrary to international law by reason of
the identity of the group or collectivity;
(h) “The crime of apartheid” means inhumane acts of a
character similar to those referred to in paragraph 1, committed in the context
of an institutionalized regime of systematic oppression and domination by one
racial group over any other racial group or groups and committed with the
intention of maintaining that regime;
(i) “Enforced disappearance of persons” means the
arrest, detention or abduction of persons by, or with the authorization,
support or acquiescence of, a State or a political organization, followed by a
refusal to acknowledge that deprivation of freedom or to give information on
the fate or whereabouts of those persons, with the intention of removing them
from the protection of the law for a prolonged period of time.
3. For the purpose of this Statute, it is understood
that the term “gender” refers to the two sexes, male and female, within the
context of society. The term “gender” does not indicate any meaning different
from the above.
Article
8
War crimes
1. The Court shall have jurisdiction in respect of
war crimes in particular when committed as part of a plan or policy or as part
of a large‑scale commission of such crimes.
2. For the purpose of this Statute, “war crimes”
means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property
protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological
experiments;
(iii) Wilfully
causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property,
not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected
person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other
protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs
applicable in international armed conflict, within the established framework of
international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian
population as such or against individual civilians not taking direct part in
hostilities;
(ii) Intentionally directing attacks against civilian
objects, that is, objects which are not military objectives;
(iii) Intentionally directing attacks against personnel,
installations, material, units or vehicles involved in a humanitarian
assistance or peacekeeping mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection given to civilians or
civilian objects under the international law of armed conflict;
(iv) Intentionally launching an attack in the knowledge
that such attack will cause incidental loss of life or injury to civilians or
damage to civilian objects or widespread, long‑term and severe damage to
the natural environment which would be clearly excessive in relation to the
concrete and direct overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means, towns,
villages, dwellings or buildings which are undefended and which are not
military objectives;
(vi) Killing or wounding a combatant who, having laid
down his arms or having no longer means of defence, has surrendered at
discretion;
(vii) Making improper use of a flag of truce, of the flag
or of the military insignia and uniform of the enemy or of the United Nations,
as well as of the distinctive emblems of the Geneva Conventions, resulting in
death or serious personal injury;
(viii) The transfer, directly or indirectly, by the
Occupying Power of parts of its own civilian population into the territory it
occupies, or the deportation or transfer of all or parts of the population of
the occupied territory within or outside this territory;
(ix) Intentionally directing attacks against buildings
dedicated to religion, education, art, science or charitable purposes, historic
monuments, hospitals and places where the sick and wounded are collected,
provided they are not military objectives;
(x) Subjecting persons who are in the power of an adverse
party to physical mutilation or to medical or scientific experiments of any
kind which are neither justified by the medical, dental or hospital treatment
of the person concerned nor carried out in his or her interest, and which cause
death to or seriously endanger the health of such person or persons;
(xi) Killing or wounding treacherously individuals
belonging to the hostile nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy’s property unless
such destruction or seizure be imperatively demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a
court of law the rights and actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take
part in the operations of war directed against their own country, even if they
were in the belligerent’s service before the commencement of the war;
(xvi) Pillaging a town or place, even when taken by
assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases,
and all analogous liquids, materials or devices;
(xix) Employing bullets which expand or flatten easily in
the human body, such as bullets with a hard envelope which does not entirely
cover the core or is pierced with incisions;
(xx) Employing weapons, projectiles and material and
methods of warfare which are of a nature to cause superfluous injury or
unnecessary suffering or which are inherently indiscriminate in violation of
the international law of armed conflict, provided that such weapons,
projectiles and material and methods of warfare are the subject of a
comprehensive prohibition and are included in an annex to this Statute, by an
amendment in accordance with the relevant provisions set forth in articles 121
and 123;
(xxi) Committing outrages upon personal dignity, in
particular humiliating and degrading treatment;
(xxii) Committing rape, sexual slavery, enforced
prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f),
enforced sterilization, or any other form of sexual violence also constituting
a grave breach of the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or other
protected person to render certain points, areas or military forces immune from
military operations;
(xxiv) Intentionally directing attacks against buildings,
material, medical units and transport, and personnel using the distinctive
emblems of the Geneva Conventions in conformity with international law;
(xxv) Intentionally using starvation of civilians as a
method of warfare by depriving them of objects indispensable to their survival,
including wilfully impeding relief supplies as provided for under the Geneva
Conventions;
(xxvi) Conscripting or enlisting children under the age of
fifteen years into the national armed forces or using them to participate
actively in hostilities.
(c) In the case of an armed conflict not of an
international character, serious violations of article 3 common to the four
Geneva Conventions of 12 August 1949, namely, any of the following acts
committed against persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed hors
de combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of
all kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in
particular humiliating and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of
executions without previous judgement pronounced by a regularly constituted
court, affording all judicial guarantees which are generally recognized as
indispensable.
(d) Paragraph 2 (c) applies to armed conflicts not of
an international character and thus does not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of
violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs
applicable in armed conflicts not of an international character, within the
established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian
population as such or against individual civilians not taking direct part in
hostilities;
(ii) Intentionally directing attacks against buildings,
material, medical units and transport, and personnel using the distinctive
emblems of the Geneva Conventions in conformity with international law;
(iii) Intentionally directing attacks against personnel,
installations, material, units or vehicles involved in a humanitarian
assistance or peacekeeping mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection given to civilians or
civilian objects under the international law of armed conflict;
(iv) Intentionally directing attacks against buildings
dedicated to religion, education, art, science or charitable purposes, historic
monuments, hospitals and places where the sick and wounded are collected, provided
they are not military objectives;
(v) Pillaging a town or place, even when taken by
assault;
(vi) Committing rape, sexual slavery, enforced
prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f),
enforced sterilization, and any other form of sexual violence also constituting
a serious violation of article 3 common to the four Geneva Conventions;
(vii) Conscripting or enlisting children under the age of
fifteen years into armed forces or groups or using them to participate actively
in hostilities;
(viii) Ordering the displacement of the civilian population
for reasons related to the conflict, unless the security of the civilians
involved or imperative military reasons so demand;
(ix) Killing or wounding treacherously a combatant adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another
party to the conflict to physical mutilation or to medical or scientific
experiments of any kind which are neither justified by the medical, dental or
hospital treatment of the person concerned nor carried out in his or her
interest, and which cause death to or seriously endanger the health of such
person or persons;
(xii) Destroying or seizing the property of an adversary
unless such destruction or seizure be imperatively demanded by the necessities
of the conflict;
(f) Paragraph 2 (e) applies to armed conflicts not of
an international character and thus does not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of
violence or other acts of a similar nature. It applies to armed conflicts that
take place in the territory of a State when there is protracted armed conflict
between governmental authorities and organized armed groups or between such
groups.
3. Nothing in paragraph 2 (c) and (e) shall affect
the responsibility of a Government to maintain or re‑establish law and
order in the State or to defend the unity and territorial integrity of the
State, by all legitimate means.
Article
9
Elements of Crimes
1. Elements of Crimes shall assist the Court in the
interpretation and application of articles 6, 7 and 8. They shall be adopted by
a two‑thirds majority of the members of the Assembly of States Parties.
2. Amendments to the Elements of Crimes may be
proposed by:
(a) Any State Party;
(b) The judges acting by an absolute majority;
(c) The Prosecutor.
Such amendments shall be adopted by a two‑thirds
majority of the members of the Assembly of States Parties.
3. The Elements of Crimes and amendments thereto
shall be consistent with this Statute.
Article
10
Nothing in this Part shall be interpreted as
limiting or prejudicing in any way existing or developing rules of
international law for purposes other than this Statute.
Article
11
Jurisdiction ratione
temporis
1. The Court has jurisdiction only with respect to
crimes committed after the entry into force of this Statute.
2. If a State becomes a Party to this Statute after
its entry into force, the Court may exercise its jurisdiction only with respect
to crimes committed after the entry into force of this Statute for that State,
unless that State has made a declaration under article 12, paragraph 3.
Article
12
Preconditions to
the exercise of jurisdiction
1. A State which becomes a Party to this Statute
thereby accepts the jurisdiction of the Court with respect to the crimes
referred to in article 5.
2. In the case of article 13, paragraph (a) or
(c), the Court may exercise its jurisdiction if one or more of the following
States are Parties to this Statute or have accepted the jurisdiction of the
Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in
question occurred or, if the crime was committed on board a vessel or aircraft,
the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime
is a national.
3. If the acceptance of a State which is not a Party
to this Statute is required under paragraph 2, that State may, by declaration
lodged with the Registrar, accept the exercise of jurisdiction by the Court
with respect to the crime in question. The accepting State shall cooperate with
the Court without any delay or exception in accordance with Part 9.
Article
13
Exercise of
jurisdiction
The Court may exercise its jurisdiction with
respect to a crime referred to in article 5 in accordance with the provisions
of this Statute if:
(a) A situation in which one or more of such crimes
appears to have been committed is referred to the Prosecutor by a State Party
in accordance with article 14;
(b) A situation in which one or more of such crimes
appears to have been committed is referred to the Prosecutor by the Security
Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in
respect of such a crime in accordance with article 15.
Article
14
Referral of a
situation by a State Party
1. A State Party may refer to the Prosecutor a
situation in which one or more crimes within the jurisdiction of the Court appear
to have been committed requesting the Prosecutor to investigate the situation
for the purpose of determining whether one or more specific persons should be
charged with the commission of such crimes.
2. As far as possible, a referral shall specify the relevant
circumstances and be accompanied by such supporting documentation as is
available to the State referring the situation.
Article
15
Prosecutor
1. The Prosecutor may initiate investigations proprio
motu on the basis of information on crimes within the jurisdiction of the
Court.
2. The Prosecutor shall analyse the seriousness of
the information received. For this purpose, he or she may seek additional
information from States, organs of the United Nations, intergovernmental or non‑governmental
organizations, or other reliable sources that he or she deems appropriate, and
may receive written or oral testimony at the seat of the Court.
3. If the Prosecutor concludes that there is a
reasonable basis to proceed with an investigation, he or she shall submit to
the Pre‑Trial Chamber a request for authorization of an investigation,
together with any supporting material collected. Victims may make
representations to the Pre‑Trial Chamber, in accordance with the Rules of
Procedure and Evidence.
4. If the Pre‑Trial Chamber, upon examination
of the request and the supporting material, considers that there is a
reasonable basis to proceed with an investigation, and that the case appears to
fall within the jurisdiction of the Court, it shall authorize the commencement
of the investigation, without prejudice to subsequent determinations by the
Court with regard to the jurisdiction and admissibility of a case.
5. The refusal of the Pre‑Trial Chamber to
authorize the investigation shall not preclude the presentation of a subsequent
request by the Prosecutor based on new facts or evidence regarding the same
situation.
6. If, after the preliminary examination referred to
in paragraphs 1 and 2, the Prosecutor concludes that the information provided
does not constitute a reasonable basis for an investigation, he or she shall
inform those who provided the information. This shall not preclude the
Prosecutor from considering further information submitted to him or her
regarding the same situation in the light of new facts or evidence.
Article
16
Deferral of
investigation or prosecution
No investigation or prosecution may be commenced
or proceeded with under this Statute for a period of 12 months after the
Security Council, in a resolution adopted under Chapter VII of the Charter of
the United Nations, has requested the Court to that effect; that request may be
renewed by the Council under the same conditions.
Article
17
Issues of
admissibility
1. Having regard to paragraph 10 of the Preamble and
article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a
State which has jurisdiction over it, unless the State is unwilling or unable
genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has
jurisdiction over it and the State has decided not to prosecute the person
concerned, unless the decision resulted from the unwillingness or inability of
the State genuinely to prosecute;
(c) The person concerned has already been tried for
conduct which is the subject of the complaint, and a trial by the Court is not
permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify
further action by the Court.
2. In order to determine unwillingness in a
particular case, the Court shall consider, having regard to the principles of
due process recognized by international law, whether one or more of the
following exist, as applicable:
(a) The proceedings were or are being undertaken or the
national decision was made for the purpose of shielding the person concerned
from criminal responsibility for crimes within the jurisdiction of the Court
referred to in article 5;
(b) There has been an unjustified delay in the
proceedings which in the circumstances is inconsistent with an intent to bring
the person concerned to justice;
(c) The proceedings were not or are not being conducted
independently or impartially, and they were or are being conducted in a manner
which, in the circumstances, is inconsistent with an intent to bring the person
concerned to justice.
3. In order to determine inability in a particular
case, the Court shall consider whether, due to a total or substantial collapse
or unavailability of its national judicial system, the State is unable to
obtain the accused or the necessary evidence and testimony or otherwise unable
to carry out its proceedings.
Article
18
Preliminary
rulings regarding admissibility
1. When a situation has been referred to the Court
pursuant to article 13 (a) and the Prosecutor has determined that there would
be a reasonable basis to commence an investigation, or the Prosecutor initiates
an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall
notify all States Parties and those States which, taking into account the
information available, would normally exercise jurisdiction over the crimes
concerned. The Prosecutor may notify such States on a confidential basis and,
where the Prosecutor believes it necessary to protect persons, prevent
destruction of evidence or prevent the absconding of persons, may limit the
scope of the information provided to States.
2. Within one month of receipt of that notification,
a State may inform the Court that it is investigating or has investigated its
nationals or others within its jurisdiction with respect to criminal acts which
may constitute crimes referred to in article 5 and which relate to the
information provided in the notification to States. At the request of that
State, the Prosecutor shall defer to the State’s investigation of those persons
unless the Pre‑Trial Chamber, on the application of the Prosecutor,
decides to authorize the investigation.
3. The Prosecutor’s deferral to a State’s
investigation shall be open to review by the Prosecutor six months after the
date of deferral or at any time when there has been a significant change of
circumstances based on the State’s unwillingness or inability genuinely to
carry out the investigation.
4. The State concerned or the Prosecutor may appeal
to the Appeals Chamber against a ruling of the Pre‑Trial Chamber, in
accordance with article 82. The appeal may be heard on an expedited basis.
5. When the Prosecutor has deferred an investigation
in accordance with paragraph 2, the Prosecutor may request that the State concerned
periodically inform the Prosecutor of the progress of its investigations and
any subsequent prosecutions. States Parties shall respond to such requests
without undue delay.
6. Pending a ruling by the Pre‑Trial Chamber,
or at any time when the Prosecutor has deferred an investigation under this
article, the Prosecutor may, on an exceptional basis, seek authority from the
Pre‑Trial Chamber to pursue necessary investigative steps for the purpose
of preserving evidence where there is a unique opportunity to obtain important
evidence or there is a significant risk that such evidence may not be
subsequently available.
7. A State which has challenged a ruling of the Pre‑Trial
Chamber under this article may challenge the admissibility of a case under article
19 on the grounds of additional significant facts or significant change of
circumstances.
Article
19
Challenges to the
jurisdiction of the Court
or the
admissibility of a case
1. The Court shall satisfy itself that it has
jurisdiction in any case brought before it. The Court may, on its own motion,
determine the admissibility of a case in accordance with article 17.
2. Challenges to the admissibility of a case on the
grounds referred to in article 17 or challenges to the jurisdiction of the
Court may be made by:
(a) An accused or a person for whom a warrant of arrest
or a summons to appear has been issued under article 58;
(b) A State which has jurisdiction over a case, on the
ground that it is investigating or prosecuting the case or has investigated or
prosecuted; or
(c) A State from which acceptance of jurisdiction is
required under article 12.
3. The Prosecutor may seek a ruling from the Court
regarding a question of jurisdiction or admissibility. In proceedings with
respect to jurisdiction or admissibility, those who have referred the situation
under article 13, as well as victims, may also submit observations to the
Court.
4. The admissibility of a case or the jurisdiction
of the Court may be challenged only once by any person or State referred to in
paragraph 2. The challenge shall take place prior to or at the commencement of
the trial. In exceptional circumstances, the Court may grant leave for a
challenge to be brought more than once or at a time later than the commencement
of the trial. Challenges to the admissibility of a case, at the commencement of
a trial, or subsequently with the leave of the Court, may be based only on
article 17, paragraph 1 (c).
5. A State referred to in paragraph 2 (b) and (c)
shall make a challenge at the earliest opportunity.
6. Prior to the confirmation of the charges,
challenges to the admissibility of a case or challenges to the jurisdiction of
the Court shall be referred to the Pre‑Trial Chamber. After confirmation
of the charges, they shall be referred to the Trial Chamber. Decisions with
respect to jurisdiction or admissibility may be appealed to the Appeals Chamber
in accordance with article 82.
7. If a challenge is made by a State referred to in
paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until
such time as the Court makes a determination in accordance with article 17.
8. Pending a ruling by the Court, the Prosecutor may
seek authority from the Court:
(a) To pursue necessary investigative steps of the kind
referred to in article 18, paragraph 6;
(b) To take a statement or testimony from a witness or
complete the collection and examination of evidence which had begun prior to
the making of the challenge; and
(c) In cooperation with the relevant States, to prevent
the absconding of persons in respect of whom the Prosecutor has already
requested a warrant of arrest under article 58.
9. The making of a challenge shall not affect the
validity of any act performed by the Prosecutor or any order or warrant issued
by the Court prior to the making of the challenge.
10. If the Court has decided that a case is
inadmissible under article 17, the Prosecutor may submit a request for a review
of the decision when he or she is fully satisfied that new facts have arisen
which negate the basis on which the case had previously been found inadmissible
under article 17.
11. If the Prosecutor, having regard to the matters
referred to in article 17, defers an investigation, the Prosecutor may request
that the relevant State make available to the Prosecutor information on the
proceedings. That information shall, at the request of the State concerned, be
confidential. If the Prosecutor thereafter decides to proceed with an
investigation, he or she shall notify the State to which deferral of the
proceedings has taken place.
Article
20
Ne bis in idem
1. Except as provided in this Statute, no person
shall be tried before the Court with respect to conduct which formed the basis
of crimes for which the person has been convicted or acquitted by the Court.
2. No person shall be tried by another court for a
crime referred to in article 5 for which that person has already been convicted
or acquitted by the Court.
3. No person who has been tried by another court for
conduct also proscribed under article 6, 7 or 8 shall be tried by the Court
with respect to the same conduct unless the proceedings in the other court:
(a) Were for the purpose of shielding the person
concerned from criminal responsibility for crimes within the jurisdiction of
the Court; or
(b) Otherwise were not conducted independently or
impartially in accordance with the norms of due process recognized by
international law and were conducted in a manner which, in the circumstances,
was inconsistent with an intent to bring the person concerned to justice.
Article
21
Applicable law
1. The Court shall apply:
(a) In the first place, this Statute, Elements of
Crimes and its Rules of Procedure and Evidence;
(b) In the second place, where appropriate, applicable
treaties and the principles and rules of international law, including the
established principles of the international law of armed conflict;
(c) Failing that, general principles of law derived by
the Court from national laws of legal systems of the world including, as
appropriate, the national laws of States that would normally exercise
jurisdiction over the crime, provided that those principles are not
inconsistent with this Statute and with international law and internationally
recognized norms and standards.
2. The Court may apply principles and rules of law
as interpreted in its previous decisions.
3. The application and interpretation of law
pursuant to this article must be consistent with internationally recognized
human rights, and be without any adverse distinction founded on grounds such as
gender as defined in article 7, paragraph 3, age, race, colour, language,
religion or belief, political or other opinion, national, ethnic or social
origin, wealth, birth or other status.
PART
3. GENERAL PRINCIPLES OF CRIMINAL LAW
Article
22
Nullum crimen sine
lege
1. A person shall not be criminally responsible
under this Statute unless the conduct in question constitutes, at the time it
takes place, a crime within the jurisdiction of the Court.
2. The definition of a crime shall be strictly
construed and shall not be extended by analogy. In case of ambiguity, the
definition shall be interpreted in favour of the person being investigated,
prosecuted or convicted.
3. This article shall not affect the
characterization of any conduct as criminal under international law
independently of this Statute.
Article
23
Nulla poena sine
lege
A person convicted by the Court may be punished
only in accordance with this Statute.
Article
24
Non‑retroactivity
ratione personae
1. No person shall be criminally responsible under
this Statute for conduct prior to the entry into force of the Statute.
2. In the event of a change in the law applicable to
a given case prior to a final judgement, the law more favourable to the person
being investigated, prosecuted or convicted shall apply.
Article
25
Individual
criminal responsibility
1. The Court shall have jurisdiction over natural
persons pursuant to this Statute.
2. A person who commits a crime within the
jurisdiction of the Court shall be individually responsible and liable for
punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall
be criminally responsible and liable for punishment for a crime within the
jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual,
jointly with another or through another person, regardless of whether that
other person is criminally responsible;
(b) Orders, solicits or induces the commission of such
a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of
such a crime, aids, abets or otherwise assists in its commission or its
attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or
attempted commission of such a crime by a group of persons acting with a common
purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal
activity or criminal purpose of the group, where such activity or purpose involves
the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the
group to commit the crime;
(e) In respect of the crime of genocide, directly and
publicly incites others to commit genocide;
(f) Attempts to commit such a crime by taking action
that commences its execution by means of a substantial step, but the crime does
not occur because of circumstances independent of the person’s intentions.
However, a person who abandons the effort to commit the crime or otherwise
prevents the completion of the crime shall not be liable for punishment under
this Statute for the attempt to commit that crime if that person completely and
voluntarily gave up the criminal purpose.
4. No provision in this Statute relating to
individual criminal responsibility shall affect the responsibility of States
under international law.
Article
26
Exclusion of
jurisdiction over persons under eighteen
The Court shall have no jurisdiction over any
person who was under the age of 18 at the time of the alleged commission of a
crime.
Article
27
Irrelevance of
official capacity
1. This Statute shall apply equally to all persons
without any distinction based on official capacity. In particular, official
capacity as a Head of State or Government, a member of a Government or
parliament, an elected representative or a government official shall in no case
exempt a person from criminal responsibility under this Statute, nor shall it,
in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may
attach to the official capacity of a person, whether under national or
international law, shall not bar the Court from exercising its jurisdiction
over such a person.
Article
28
Responsibility of
commanders and other superiors
In addition to other grounds of criminal
responsibility under this Statute for crimes within the jurisdiction of the
Court:
(a) A military commander or person effectively acting
as a military commander shall be criminally responsible for crimes within the
jurisdiction of the Court committed by forces under his or her effective
command and control, or effective authority and control as the case may be, as
a result of his or her failure to exercise control properly over such forces,
where:
(i) That military commander or person either knew or,
owing to the circumstances at the time, should have known that the forces were
committing or about to commit such crimes; and
(ii) That military commander or person failed to take all
necessary and reasonable measures within his or her power to prevent or repress
their commission or to submit the matter to the competent authorities for
investigation and prosecution.
(b) With respect to superior and subordinate
relationships not described in paragraph (a), a superior shall be
criminally responsible for crimes within the jurisdiction of the Court
committed by subordinates under his or her effective authority and control, as
a result of his or her failure to exercise control properly over such
subordinates, where:
(i) The superior either knew, or consciously disregarded
information which clearly indicated, that the subordinates were committing or
about to commit such crimes;
(ii) The crimes concerned activities that were within
the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and
reasonable measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for
investigation and prosecution.
Article
29
Non‑applicability
of statute of limitations
The crimes within the jurisdiction of the Court
shall not be subject to any statute of limitations.
Article
30
Mental element
1. Unless otherwise provided, a person shall be criminally
responsible and liable for punishment for a crime within the jurisdiction of
the Court only if the material elements are committed with intent and
knowledge.
2. For the purposes of this article, a person has
intent where:
(a) In relation to conduct, that person means to engage
in the conduct;
(b) In relation to a consequence, that person means to
cause that consequence or is aware that it will occur in the ordinary course of
events.
3. For the purposes of this article, “knowledge”
means awareness that a circumstance exists or a consequence will occur in the
ordinary course of events. “Know” and “knowingly” shall be construed
accordingly.
Article
31
Grounds for
excluding criminal responsibility
1. In addition to other grounds for excluding
criminal responsibility provided for in this Statute, a person shall not be
criminally responsible if, at the time of that person’s conduct:
(a) The person suffers from a mental disease or defect
that destroys that person’s capacity to appreciate the unlawfulness or nature
of his or her conduct, or capacity to control his or her conduct to conform to
the requirements of law;
(b) The person is in a state of intoxication that
destroys that person’s capacity to appreciate the unlawfulness or nature of his
or her conduct, or capacity to control his or her conduct to conform to the
requirements of law, unless the person has become voluntarily intoxicated under
such circumstances that the person knew, or disregarded the risk, that, as a
result of the intoxication, he or she was likely to engage in conduct
constituting a crime within the jurisdiction of the Court;
(c) The person acts reasonably to defend himself or
herself or another person or, in the case of war crimes, property which is
essential for the survival of the person or another person or property which is
essential for accomplishing a military mission, against an imminent and
unlawful use of force in a manner proportionate to the degree of danger to the
person or the other person or property protected. The fact that the person was
involved in a defensive operation conducted by forces shall not in itself
constitute a ground for excluding criminal responsibility under this
subparagraph;
(d) The conduct which is alleged to constitute a crime
within the jurisdiction of the Court has been caused by duress resulting from a
threat of imminent death or of continuing or imminent serious bodily harm
against that person or another person, and the person acts necessarily and
reasonably to avoid this threat, provided that the person does not intend to
cause a greater harm than the one sought to be avoided. Such a threat may
either be:
(i) Made by other persons; or
(ii) Constituted by other circumstances beyond that
person’s control.
2. The Court shall determine the applicability of
the grounds for excluding criminal responsibility provided for in this Statute
to the case before it.
3. At trial, the Court may consider a ground for
excluding criminal responsibility other than those referred to in paragraph 1
where such a ground is derived from applicable law as set forth in article 21.
The procedures relating to the consideration of such a ground shall be provided
for in the Rules of Procedure and Evidence.
Article
32
Mistake of fact or
mistake of law
1. A mistake of fact shall be a ground for excluding
criminal responsibility only if it negates the mental element required by the
crime.
2. A mistake of law as to whether a particular type
of conduct is a crime within the jurisdiction of the Court shall not be a
ground for excluding criminal responsibility. A mistake of law may, however, be
a ground for excluding criminal responsibility if it negates the mental element
required by such a crime, or as provided for in article 33.
Article
33
Superior orders
and prescription of law
1. The fact that a crime within the jurisdiction of
the Court has been committed by a person pursuant to an order of a Government
or of a superior, whether military or civilian, shall not relieve that person
of criminal responsibility unless:
(a) The person was under a legal obligation to obey
orders of the Government or the superior in question;
(b) The person did not know that the order was
unlawful; and
(c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to
commit genocide or crimes against humanity are manifestly unlawful.
PART
4. COMPOSITION AND ADMINISTRATION OF THE COURT
Article
34
Organs of the
Court
The Court shall be composed of the following
organs:
(a) The Presidency;
(b) An Appeals Division, a Trial Division and a Pre‑Trial
Division;
(c) The Office of the Prosecutor;
(d) The Registry.
Article
35
Service of judges
1. All judges shall be elected as full‑time
members of the Court and shall be available to serve on that basis from the
commencement of their terms of office.
2. The judges composing the Presidency shall serve
on a full‑time basis as soon as they are elected.
3. The Presidency may, on the basis of the workload
of the Court and in consultation with its members, decide from time to time to
what extent the remaining judges shall be required to serve on a full‑time
basis. Any such arrangement shall be without prejudice to the provisions of
article 40.
4. The financial arrangements for judges not
required to serve on a full‑time basis shall be made in accordance with
article 49.
Article
36
Qualifications,
nomination and election of judges
1. Subject to the provisions of paragraph 2, there
shall be 18 judges of the Court.
2. (a) The Presidency, acting on behalf of
the Court, may propose an increase in the number of judges specified in
paragraph 1, indicating the reasons why this is considered necessary and
appropriate. The Registrar shall promptly circulate any such proposal to all
States Parties.
(b) Any such proposal shall then be
considered at a meeting of the Assembly of States Parties to be convened in
accordance with article 112. The proposal shall be considered adopted if
approved at the meeting by a vote of two thirds of the members of the Assembly
of States Parties and shall enter into force at such time as decided by the
Assembly of States Parties.
(c) (i) Once
a proposal for an increase in the number of judges has been adopted under
subparagraph (b), the election of the additional judges shall take place
at the next session of the Assembly of States Parties in accordance with
paragraphs 3 to 8, and article 37, paragraph 2;
(ii) Once a
proposal for an increase in the number of judges has been adopted and brought
into effect under subparagraphs (b) and (c) (i), it shall be open to the
Presidency at any time thereafter, if the workload of the Court justifies it,
to propose a reduction in the number of judges, provided that the number of
judges shall not be reduced below that specified in paragraph 1. The proposal
shall be dealt with in accordance with the procedure laid down in
subparagraphs (a) and (b). In the event that the proposal is adopted, the
number of judges shall be progressively decreased as the terms of office of
serving judges expire, until the necessary number has been reached.
3. (a) The judges shall be chosen from among
persons of high moral character, impartiality and integrity who possess the
qualifications required in their respective States for appointment to the
highest judicial offices.
(b) Every candidate for election to the
Court shall:
(i) Have
established competence in criminal law and procedure, and the necessary
relevant experience, whether as judge, prosecutor, advocate or in other similar
capacity, in criminal proceedings; or
(ii) Have
established competence in relevant areas of international law such as
international humanitarian law and the law of human rights, and extensive
experience in a professional legal capacity which is of relevance to the
judicial work of the Court;
(c) Every candidate for election to the
Court shall have an excellent knowledge of and be fluent in at least one of the
working languages of the Court.
4. (a) Nominations of candidates for election
to the Court may be made by any State Party to this Statute, and shall be made
either:
(i) By the procedure for the nomination of candidates
for appointment to the highest judicial offices in the State in question; or
(ii) By the procedure provided for the nomination of
candidates for the International Court of Justice in the Statute of that Court.
Nominations shall be accompanied by a statement
in the necessary detail specifying how the candidate fulfils the requirements
of paragraph 3.
(b) Each State Party may put forward one
candidate for any given election who need not necessarily be a national of that
State Party but shall in any case be a national of a State Party.
(c) The Assembly of States Parties may
decide to establish, if appropriate, an Advisory Committee on nominations. In
that event, the Committee’s composition and mandate shall be established by the
Assembly of States Parties.
5. For the purposes of the election, there shall be
two lists of candidates:
List A containing the names of
candidates with the qualifications specified in paragraph 3 (b) (i); and
List B containing the names of
candidates with the qualifications specified in paragraph 3 (b) (ii).
A candidate with sufficient qualifications for
both lists may choose on which list to appear. At the first election to the
Court, at least nine judges shall be elected from list A and at least five
judges from list B. Subsequent elections shall be so organized as to maintain
the equivalent proportion on the Court of judges qualified on the two lists.
6. (a) The judges shall be elected by secret
ballot at a meeting of the Assembly of States Parties convened for that purpose
under article 112. Subject to paragraph 7, the persons elected to the Court
shall be the 18 candidates who obtain the highest number of votes and a two‑thirds
majority of the States Parties present and voting.
(b) In the event that a sufficient number
of judges is not elected on the first ballot, successive ballots shall be held
in accordance with the procedures laid down in subparagraph (a) until the
remaining places have been filled.
7. No two judges may be nationals of the same State.
A person who, for the purposes of membership of the Court, could be regarded as
a national of more than one State shall be deemed to be a national of the State
in which that person ordinarily exercises civil and political rights.
8. (a) The States Parties shall, in the
selection of judges, take into account the need, within the membership of the
Court, for:
(i) The representation of the principal legal systems of
the world;
(ii) Equitable geographical representation; and
(iii) A fair representation of female and male judges.
(b) States Parties shall also take into
account the need to include judges with legal expertise on specific issues,
including, but not limited to, violence against women or children.
9. (a) Subject to subparagraph (b),
judges shall hold office for a term of nine years and, subject to
subparagraph (c) and to article 37, paragraph 2, shall not be eligible for
re‑election.
(b) At the first election, one third of
the judges elected shall be selected by lot to serve for a term of three years;
one third of the judges elected shall be selected by lot to serve for a term of
six years; and the remainder shall serve for a term of nine years.
(c) A judge who is selected to serve for
a term of three years under subparagraph (b) shall be eligible for re‑election
for a full term.
10. Notwithstanding paragraph 9, a judge assigned to
a Trial or Appeals Chamber in accordance with article 39 shall continue in
office to complete any trial or appeal the hearing of which has already
commenced before that Chamber.
Article
37
Judicial vacancies
1. In the event of a vacancy, an election shall be
held in accordance with article 36 to fill the vacancy.
2. A judge elected to fill a vacancy shall serve for
the remainder of the predecessor’s term and, if that period is three years or
less, shall be eligible for re‑election for a full term under article 36.
Article
38
The Presidency
1. The President and the First and Second Vice‑Presidents
shall be elected by an absolute majority of the judges. They shall each serve
for a term of three years or until the end of their respective terms of office
as judges, whichever expires earlier. They shall be eligible for re‑election
once.
2. The First Vice‑President shall act in place
of the President in the event that the President is unavailable or
disqualified. The Second Vice‑President shall act in place of the
President in the event that both the President and the First Vice‑President
are unavailable or disqualified.
3. The President, together with the First and Second
Vice‑Presidents, shall constitute the Presidency, which shall be
responsible for:
(a) The proper administration of the Court,
with the exception of the Office of the Prosecutor; and
(b) The other functions conferred upon it
in accordance with this Statute.
4. In discharging its responsibility under paragraph
3 (a), the Presidency shall coordinate with and seek the concurrence of the
Prosecutor on all matters of mutual concern.
Article
39
Chambers
1. As soon as possible after the election of the
judges, the Court shall organize itself into the divisions specified in article
34, paragraph (b). The Appeals Division shall be composed of the President
and four other judges, the Trial Division of not less than six judges and the
Pre‑Trial Division of not less than six judges. The assignment of judges
to divisions shall be based on the nature of the functions to be performed by
each division and the qualifications and experience of the judges elected to
the Court, in such a way that each division shall contain an appropriate
combination of expertise in criminal law and procedure and in international
law. The Trial and Pre‑Trial Divisions shall be composed predominantly of
judges with criminal trial experience.
2. (a) The judicial functions of the Court
shall be carried out in each division by Chambers.
(b) (i) The
Appeals Chamber shall be composed of all the judges of the Appeals Division;
(ii) The
functions of the Trial Chamber shall be carried out by three judges of the
Trial Division;
(iii) The functions of the
Pre‑Trial Chamber shall be carried out either by three judges of the Pre‑Trial
Division or by a single judge of that division in accordance with this Statute
and the Rules of Procedure and Evidence;
(c) Nothing in this
paragraph shall preclude the simultaneous constitution of more than one Trial
Chamber or Pre‑Trial Chamber when the efficient management of the Court’s
workload so requires.
3. (a) Judges assigned to the Trial and Pre‑Trial
Divisions shall serve in those divisions for a period of three years, and
thereafter until the completion of any case the hearing of which has already
commenced in the division concerned.
(b) Judges assigned to the Appeals
Division shall serve in that division for their entire term of office.
4. Judges assigned to the Appeals Division shall
serve only in that division. Nothing in this article shall, however, preclude
the temporary attachment of judges from the Trial Division to the Pre‑Trial
Division or vice versa, if the Presidency considers that the efficient
management of the Court’s workload so requires, provided that under no
circumstances shall a judge who has participated in the pre‑trial phase
of a case be eligible to sit on the Trial Chamber hearing that case.
Article
40
Independence
of the judges
1. The judges shall be independent in the
performance of their functions.
2. Judges shall not engage in any activity which is
likely to interfere with their judicial functions or to affect confidence in
their independence.
3. Judges required to serve on a full‑time
basis at the seat of the Court shall not engage in any other occupation of a
professional nature.
4. Any question regarding the application of
paragraphs 2 and 3 shall be decided by an absolute majority of the judges.
Where any such question concerns an individual judge, that judge shall not take
part in the decision.
Article
41
Excusing and
disqualification of judges
1. The Presidency may, at the request of a judge,
excuse that judge from the exercise of a function under this Statute, in
accordance with the Rules of Procedure and Evidence.
2. (a) A judge shall not participate in any
case in which his or her impartiality might reasonably be doubted on any
ground. A judge shall be disqualified from a case in accordance with this
paragraph if, inter alia, that judge has previously been involved in any
capacity in that case before the Court or in a related criminal case at the
national level involving the person being investigated or prosecuted. A judge
shall also be disqualified on such other grounds as may be provided for in the
Rules of Procedure and Evidence.
(b) The Prosecutor or the person being
investigated or prosecuted may request the disqualification of a judge under
this paragraph.
(c) Any question as to the
disqualification of a judge shall be decided by an absolute majority of the
judges. The challenged judge shall be entitled to present his or her comments
on the matter, but shall not take part in the decision.
Article
42
The Office of the
Prosecutor
1. The Office of the Prosecutor shall act
independently as a separate organ of the Court. It shall be responsible for
receiving referrals and any substantiated information on crimes within the
jurisdiction of the Court, for examining them and for conducting investigations
and prosecutions before the Court. A member of the Office shall not seek or act
on instructions from any external source.
2. The Office shall be headed by the Prosecutor. The
Prosecutor shall have full authority over the management and administration of
the Office, including the staff, facilities and other resources thereof. The
Prosecutor shall be assisted by one or more Deputy Prosecutors, who shall be
entitled to carry out any of the acts required of the Prosecutor under this Statute.
The Prosecutor and the Deputy Prosecutors shall be of different nationalities.
They shall serve on a full‑time basis.
3. The Prosecutor and the Deputy Prosecutors shall
be persons of high moral character, be highly competent in and have extensive
practical experience in the prosecution or trial of criminal cases. They shall
have an excellent knowledge of and be fluent in at least one of the working
languages of the Court.
4. The Prosecutor shall be elected by secret ballot
by an absolute majority of the members of the Assembly of States Parties. The
Deputy Prosecutors shall be elected in the same way from a list of candidates
provided by the Prosecutor. The Prosecutor shall nominate three candidates for
each position of Deputy Prosecutor to be filled. Unless a shorter term is
decided upon at the time of their election, the Prosecutor and the Deputy
Prosecutors shall hold office for a term of nine years and shall not be
eligible for re‑election.
5. Neither the Prosecutor nor a Deputy Prosecutor
shall engage in any activity which is likely to interfere with his or her
prosecutorial functions or to affect confidence in his or her independence.
They shall not engage in any other occupation of a professional nature.
6. The Presidency may excuse the Prosecutor or a
Deputy Prosecutor, at his or her request, from acting in a particular case.
7. Neither the Prosecutor nor a Deputy Prosecutor
shall participate in any matter in which their impartiality might reasonably be
doubted on any ground. They shall be disqualified from a case in accordance
with this paragraph if, inter alia, they have previously been involved
in any capacity in that case before the Court or in a related criminal case at
the national level involving the person being investigated or prosecuted.
8. Any question as to the disqualification of the
Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber.
(a) The person being investigated or prosecuted may at
any time request the disqualification of the Prosecutor or a Deputy Prosecutor
on the grounds set out in this article;
(b) The Prosecutor or the Deputy Prosecutor, as
appropriate, shall be entitled to present his or her comments on the matter;
9. The Prosecutor shall appoint advisers with legal
expertise on specific issues, including, but not limited to, sexual and gender
violence and violence against children.
Article
43
The Registry
1. The Registry shall be responsible for the non‑judicial
aspects of the administration and servicing of the Court, without prejudice to
the functions and powers of the Prosecutor in accordance with article 42.
2. The Registry shall be headed by the Registrar,
who shall be the principal administrative officer of the Court. The Registrar
shall exercise his or her functions under the authority of the President of the
Court.
3. The Registrar and the Deputy Registrar shall be
persons of high moral character, be highly competent and have an excellent
knowledge of and be fluent in at least one of the working languages of the
Court.
4. The judges shall elect the Registrar by an
absolute majority by secret ballot, taking into account any recommendation by
the Assembly of States Parties. If the need arises and upon the recommendation
of the Registrar, the judges shall elect, in the same manner, a Deputy
Registrar.
5. The Registrar shall hold office for a term of
five years, shall be eligible for re‑election once and shall serve on a
full‑time basis. The Deputy Registrar shall hold office for a term of
five years or such shorter term as may be decided upon by an absolute majority
of the judges, and may be elected on the basis that the Deputy Registrar shall
be called upon to serve as required.
6. The Registrar shall set up a Victims and
Witnesses Unit within the Registry. This Unit shall provide, in consultation
with the Office of the Prosecutor, protective measures and security
arrangements, counselling and other appropriate assistance for witnesses,
victims who appear before the Court, and others who are at risk on account of
testimony given by such witnesses. The Unit shall include staff with expertise
in trauma, including trauma related to crimes of sexual violence.
Article
44
Staff
1. The Prosecutor and the Registrar shall appoint
such qualified staff as may be required to their respective offices. In the
case of the Prosecutor, this shall include the appointment of investigators.
2. In the employment of staff, the Prosecutor and
the Registrar shall ensure the highest standards of efficiency, competency and
integrity, and shall have regard, mutatis mutandis, to the criteria set
forth in article 36, paragraph 8.
3. The Registrar, with the agreement of the
Presidency and the Prosecutor, shall propose Staff Regulations which include
the terms and conditions upon which the staff of the Court shall be appointed,
remunerated and dismissed. The Staff Regulations shall be approved by the
Assembly of States Parties.
4. The Court may, in exceptional circumstances,
employ the expertise of gratis personnel offered by States Parties,
intergovernmental organizations or non‑governmental organizations to
assist with the work of any of the organs of the Court. The Prosecutor may
accept any such offer on behalf of the Office of the Prosecutor. Such gratis
personnel shall be employed in accordance with guidelines to be established by
the Assembly of States Parties.
Article
45
Solemn undertaking
Before taking up their respective duties under
this Statute, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar
and the Deputy Registrar shall each make a solemn undertaking in open court to
exercise his or her respective functions impartially and conscientiously.
Article
46
Removal from
office
1. A judge, the Prosecutor, a Deputy Prosecutor, the
Registrar or the Deputy Registrar shall be removed from office if a decision to
this effect is made in accordance with paragraph 2, in cases where that person:
(a) Is found to have committed serious misconduct or a
serious breach of his or her duties under this Statute, as provided for in the
Rules of Procedure and Evidence; or
(b) Is unable to exercise the functions required by
this Statute.
2. A decision as to the removal from office of a
judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by
the Assembly of States Parties, by secret ballot:
( a) In the case of a judge, by a two‑thirds
majority of the States Parties upon a recommendation adopted by a two‑thirds
majority of the other judges;
(b) In the case of the Prosecutor, by an absolute
majority of the States Parties;
(c) In the case of a Deputy Prosecutor, by an absolute
majority of the States Parties upon the recommendation of the Prosecutor.
3. A decision as to the removal from office of the
Registrar or Deputy Registrar shall be made by an absolute majority of the
judges.
4. A judge, Prosecutor, Deputy Prosecutor, Registrar
or Deputy Registrar whose conduct or ability to exercise the functions of the
office as required by this Statute is challenged under this article shall have
full opportunity to present and receive evidence and to make submissions in
accordance with the Rules of Procedure and Evidence. The person in question
shall not otherwise participate in the consideration of the matter.
Article
47
Disciplinary
measures
A judge, Prosecutor, Deputy Prosecutor,
Registrar or Deputy Registrar who has committed misconduct of a less serious
nature than that set out in article 46, paragraph 1, shall be subject to
disciplinary measures, in accordance with the Rules of Procedure and Evidence.
Article
48
Privileges and
immunities
1. The Court shall enjoy in the territory of each
State Party such privileges and immunities as are necessary for the fulfilment
of its purposes.
2. The judges, the Prosecutor, the Deputy
Prosecutors and the Registrar shall, when engaged on or with respect to the
business of the Court, enjoy the same privileges and immunities as are accorded
to heads of diplomatic missions and shall, after the expiry of their terms of
office, continue to be accorded immunity from legal process of every kind in
respect of words spoken or written and acts performed by them in their official
capacity.
3. The Deputy Registrar, the staff of the Office of
the Prosecutor and the staff of the Registry shall enjoy the privileges and
immunities and facilities necessary for the performance of their functions, in
accordance with the agreement on the privileges and immunities of the Court.
4. Counsel, experts, witnesses or any other person
required to be present at the seat of the Court shall be accorded such
treatment as is necessary for the proper functioning of the Court, in
accordance with the agreement on the privileges and immunities of the Court.
5. The privileges and immunities of:
(a) A judge or the Prosecutor may be waived by an
absolute majority of the judges;
(b) The Registrar may be waived by the Presidency;
(c) The Deputy Prosecutors and staff of the Office of
the Prosecutor may be waived by the Prosecutor;
(d) The Deputy Registrar and staff of the Registry may
be waived by the Registrar.
Article
49
Salaries,
allowances and expenses
The judges, the Prosecutor, the Deputy
Prosecutors, the Registrar and the Deputy Registrar shall receive such
salaries, allowances and expenses as may be decided upon by the Assembly of
States Parties. These salaries and allowances shall not be reduced during their
terms of office.
Article
50
Official and
working languages
1. The official languages of the Court shall be
Arabic, Chinese, English, French, Russian and Spanish. The judgements of the
Court, as well as other decisions resolving fundamental issues before the
Court, shall be published in the official languages. The Presidency shall, in
accordance with the criteria established by the Rules of Procedure and
Evidence, determine which decisions may be considered as resolving fundamental
issues for the purposes of this paragraph.
2. The working languages of the Court shall be
English and French. The Rules of Procedure and Evidence shall determine the
cases in which other official languages may be used as working languages.
3. At the request of any party to a proceeding or a
State allowed to intervene in a proceeding, the Court shall authorize a
language other than English or French to be used by such a party or State,
provided that the Court considers such authorization to be adequately justified.
Article
51
Rules of Procedure
and Evidence
1. The Rules of Procedure and Evidence shall enter
into force upon adoption by a two‑thirds majority of the members of the
Assembly of States Parties.
2. Amendments to the Rules of Procedure and Evidence
may be proposed by:
(a) Any State Party;
(b) The judges acting by an absolute majority; or
(c) The Prosecutor.
Such amendments shall enter into force upon
adoption by a two‑thirds majority of the members of the Assembly of
States Parties.
3. After the adoption of the Rules of Procedure and
Evidence, in urgent cases where the Rules do not provide for a specific
situation before the Court, the judges may, by a two‑thirds majority,
draw up provisional Rules to be applied until adopted, amended or rejected at
the next ordinary or special session of the Assembly of States Parties.
4. The Rules of Procedure and Evidence, amendments
thereto and any provisional Rule shall be consistent with this Statute.
Amendments to the Rules of Procedure and Evidence as well as provisional Rules
shall not be applied retroactively to the detriment of the person who is being
investigated or prosecuted or who has been convicted.
5. In the event of conflict between the Statute and
the Rules of Procedure and Evidence, the Statute shall prevail.
Article
52
Regulations of the
Court
1. The judges shall, in accordance with this Statute
and the Rules of Procedure and Evidence, adopt, by an absolute majority, the
Regulations of the Court necessary for its routine functioning.
2. The Prosecutor and the Registrar shall be
consulted in the elaboration of the Regulations and any amendments thereto.
3. The Regulations and any amendments thereto shall
take effect upon adoption unless otherwise decided by the judges. Immediately
upon adoption, they shall be circulated to States Parties for comments. If
within six months there are no objections from a majority of States Parties,
they shall remain in force.
PART
5. INVESTIGATION AND PROSECUTION
Article
53
Initiation of an
investigation
1. The Prosecutor shall, having evaluated the
information made available to him or her, initiate an investigation unless he
or she determines that there is no reasonable basis to proceed under this
Statute. In deciding whether to initiate an investigation, the Prosecutor shall
consider whether:
(a) The information available to the Prosecutor
provides a reasonable basis to believe that a crime within the jurisdiction of
the Court has been or is being committed;
(b) The case is or would be admissible under article
17; and
(c) Taking into account the gravity of the crime and
the interests of victims, there are nonetheless substantial reasons to believe
that an investigation would not serve the interests of justice.
If the Prosecutor determines that there is no
reasonable basis to proceed and his or her determination is based solely on
subparagraph (c) above, he or she shall inform the Pre‑Trial
Chamber.
2. If, upon investigation, the Prosecutor concludes
that there is not a sufficient basis for a prosecution because:
(a) There is not a sufficient legal or factual basis to
seek a warrant or summons under article 58;
(b) The case is inadmissible under article 17; or
(c) A prosecution is not in the interests of justice,
taking into account all the circumstances, including the gravity of the crime,
the interests of victims and the age or infirmity of the alleged perpetrator,
and his or her role in the alleged crime;
the Prosecutor shall inform the Pre‑Trial Chamber and
the State making a referral under article 14 or the Security Council in a case
under article 13, paragraph (b), of his or her conclusion and the reasons
for the conclusion.
3. (a) At the request of the State making a
referral under article 14 or the Security Council under article 13,
paragraph (b), the Pre‑Trial Chamber may review a decision of the
Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor
to reconsider that decision.
(b) In addition, the Pre‑Trial
Chamber may, on its own initiative, review a decision of the Prosecutor not to
proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the
decision of the Prosecutor shall be effective only if confirmed by the Pre‑Trial
Chamber.
4. The Prosecutor may, at any time, reconsider a
decision whether to initiate an investigation or prosecution based on new facts
or information.
Article
54
Duties and powers
of the Prosecutor with respect to investigations
1. The Prosecutor shall:
(a) In order to establish the truth, extend the
investigation to cover all facts and evidence relevant to an assessment of
whether there is criminal responsibility under this Statute, and, in doing so,
investigate incriminating and exonerating circumstances equally;
(b) Take appropriate measures to ensure the effective
investigation and prosecution of crimes within the jurisdiction of the Court,
and in doing so, respect the interests and personal circumstances of victims
and witnesses, including age, gender as defined in article 7, paragraph 3, and
health, and take into account the nature of the crime, in particular where it
involves sexual violence, gender violence or violence against children; and
(c) Fully respect the rights of persons arising under
this Statute.
2. The Prosecutor may conduct investigations on the
territory of a State:
(a) In accordance with the provisions of Part 9;
or
(b) As authorized by the Pre‑Trial Chamber under
article 57, paragraph 3 (d).
3. The Prosecutor may:
(a) Collect and examine evidence;
(b) Request the presence of and question persons being
investigated, victims and witnesses;
(c) Seek the cooperation of any State or
intergovernmental organization or arrangement in accordance with its respective
competence and/or mandate;
(d) Enter into such arrangements or agreements, not
inconsistent with this Statute, as may be necessary to facilitate the
cooperation of a State, intergovernmental organization or person;
(e) Agree not to disclose, at any stage of the
proceedings, documents or information that the Prosecutor obtains on the
condition of confidentiality and solely for the purpose of generating new
evidence, unless the provider of the information consents; and
(f) Take necessary measures, or request that necessary
measures be taken, to ensure the confidentiality of information, the protection
of any person or the preservation of evidence.
Article
55
Rights of persons
during an investigation
1. In respect of an investigation under this
Statute, a person:
(a) Shall not be compelled to incriminate himself or
herself or to confess guilt;
(b) Shall not be subjected to any form of coercion,
duress or threat, to torture or to any other form of cruel, inhuman or
degrading treatment or punishment;
(c) Shall, if questioned in a language other than a
language the person fully understands and speaks, have, free of any cost, the
assistance of a competent interpreter and such translations as are necessary to
meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or
detention, and shall not be deprived of his or her liberty except on such
grounds and in accordance with such procedures as are established in this
Statute.
2. Where there are grounds to believe that a person
has committed a crime within the jurisdiction of the Court and that person is
about to be questioned either by the Prosecutor, or by national authorities
pursuant to a request made under Part 9, that person shall also have the
following rights of which he or she shall be informed prior to being
questioned:
(a) To be informed, prior to being questioned, that
there are grounds to believe that he or she has committed a crime within the
jurisdiction of the Court;
(b) To remain silent, without such silence being a
consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person’s choosing,
or, if the person does not have legal assistance, to have legal assistance
assigned to him or her, in any case where the interests of justice so require,
and without payment by the person in any such case if the person does not have
sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless
the person has voluntarily waived his or her right to counsel.
Article
56
Role of the Pre‑Trial
Chamber in relation
to a unique
investigative opportunity
1. (a) Where the Prosecutor considers an investigation
to present a unique opportunity to take testimony or a statement from a witness
or to examine, collect or test evidence, which may not be available
subsequently for the purposes of a trial, the Prosecutor shall so inform the
Pre‑Trial Chamber.
(b) In that case, the Pre‑Trial
Chamber may, upon request of the Prosecutor, take such measures as may be
necessary to ensure the efficiency and integrity of the proceedings and, in
particular, to protect the rights of the defence.
(c) Unless the Pre‑Trial Chamber
orders otherwise, the Prosecutor shall provide the relevant information to the
person who has been arrested or appeared in response to a summons in connection
with the investigation referred to in subparagraph (a), in order that he
or she may be heard on the matter.
2. The measures referred to in paragraph 1 (b) may
include:
(a) Making recommendations or orders regarding
procedures to be followed;
(b) Directing that a record be made of the proceedings;
(c) Appointing an expert to assist;
(d) Authorizing counsel for a person who has been
arrested, or appeared before the Court in response to a summons, to
participate, or where there has not yet been such an arrest or appearance or
counsel has not been designated, appointing another counsel to attend and
represent the interests of the defence;
(e) Naming one of its members or, if necessary, another
available judge of the Pre‑Trial or Trial Division to observe and make
recommendations or orders regarding the collection and preservation of evidence
and the questioning of persons;
(f) Taking such other action as may be necessary to
collect or preserve evidence.
3. (a) Where the Prosecutor has not sought
measures pursuant to this article but the Pre‑Trial Chamber considers
that such measures are required to preserve evidence that it deems would be
essential for the defence at trial, it shall consult with the Prosecutor as to
whether there is good reason for the Prosecutor’s failure to request the
measures. If upon consultation, the Pre‑Trial Chamber concludes that the
Prosecutor’s failure to request such measures is unjustified, the Pre‑Trial
Chamber may take such measures on its own initiative.
(b) A decision of the Pre‑Trial
Chamber to act on its own initiative under this paragraph may be appealed by
the Prosecutor. The appeal shall be heard on an expedited basis.
4. The admissibility of evidence preserved or
collected for trial pursuant to this article, or the record thereof, shall be
governed at trial by article 69, and given such weight as determined by the
Trial Chamber.
Article
57
Functions and
powers of the Pre‑Trial Chamber
1. Unless otherwise provided in this Statute, the
Pre‑Trial Chamber shall exercise its functions in accordance with the
provisions of this article.
2. (a) Orders or rulings of the Pre‑Trial
Chamber issued under articles 15, 18, 19, 54, paragraph 2, 61, paragraph 7, and
72 must be concurred in by a majority of its judges.
(b) In all other cases, a single judge of
the Pre‑Trial Chamber may exercise the functions provided for in this
Statute, unless otherwise provided for in the Rules of Procedure and Evidence
or by a majority of the Pre‑Trial Chamber.
3. In addition to its other functions under this
Statute, the Pre‑Trial Chamber may:
(a) At the request of the Prosecutor, issue such orders
and warrants as may be required for the purposes of an investigation;
(b) Upon the request of a person who has been arrested
or has appeared pursuant to a summons under article 58, issue such orders,
including measures such as those described in article 56, or seek such
cooperation pursuant to Part 9 as may be necessary to assist the person in
the preparation of his or her defence;
(c) Where necessary, provide for the protection and
privacy of victims and witnesses, the preservation of evidence, the protection
of persons who have been arrested or appeared in response to a summons, and the
protection of national security information;
(d) Authorize the Prosecutor to take specific
investigative steps within the territory of a State Party without having
secured the cooperation of that State under Part 9 if, whenever possible
having regard to the views of the State concerned, the Pre‑Trial Chamber
has determined in that case that the State is clearly unable to execute a
request for cooperation due to the unavailability of any authority or any
component of its judicial system competent to execute the request for
cooperation under Part 9.
(e) Where a warrant of arrest or a summons has been
issued under article 58, and having due regard to the strength of the evidence
and the rights of the parties concerned, as provided for in this Statute and
the Rules of Procedure and Evidence, seek the cooperation of States pursuant to
article 93, paragraph 1 (k), to take protective measures for the purpose of forfeiture,
in particular for the ultimate benefit of victims.
Article
58
Issuance by the
Pre‑Trial Chamber of a warrant of arrest
or a summons to
appear
1. At any time after the initiation of an
investigation, the Pre‑Trial Chamber shall, on the application of the
Prosecutor, issue a warrant of arrest of a person if, having examined the
application and the evidence or other information submitted by the Prosecutor,
it is satisfied that:
(a) There are reasonable grounds to believe that the
person has committed a crime within the jurisdiction of the Court; and
(b) The arrest of the person appears necessary:
(i) To ensure the person’s appearance at trial,
(ii) To ensure that the person does not obstruct or
endanger the investigation or the court proceedings, or
(iii) Where applicable, to prevent the person from
continuing with the commission of that crime or a related crime which is within
the jurisdiction of the Court and which arises out of the same circumstances.
2. The application of the Prosecutor shall contain:
(a) The name of the person and any other relevant
identifying information;
(b) A specific reference to the crimes within the
jurisdiction of the Court which the person is alleged to have committed;
(c) A concise statement of the facts which are alleged
to constitute those crimes;
(d) A summary of the evidence and any other information
which establish reasonable grounds to believe that the person committed those
crimes; and
(e) The reason why the Prosecutor believes that the
arrest of the person is necessary.
3. The warrant of arrest shall contain:
(a) The name of the person and any other relevant
identifying information;
(b) A specific reference to the crimes within the
jurisdiction of the Court for which the person’s arrest is sought; and
(c) A concise statement of the facts which are alleged
to constitute those crimes.
4. The warrant of arrest shall remain in effect
until otherwise ordered by the Court.
5. On the basis of the warrant of arrest, the Court
may request the provisional arrest or the arrest and surrender of the person
under Part 9.
6. The Prosecutor may request the Pre‑Trial
Chamber to amend the warrant of arrest by modifying or adding to the crimes
specified therein. The Pre‑Trial Chamber shall so amend the warrant if it
is satisfied that there are reasonable grounds to believe that the person
committed the modified or additional crimes.
7. As an alternative to seeking a warrant of arrest,
the Prosecutor may submit an application requesting that the Pre‑Trial
Chamber issue a summons for the person to appear. If the Pre‑Trial
Chamber is satisfied that there are reasonable grounds to believe that the
person committed the crime alleged and that a summons is sufficient to ensure
the person’s appearance, it shall issue the summons, with or without conditions
restricting liberty (other than detention) if provided for by national law, for
the person to appear. The summons shall contain:
(a) The name of the person and any other relevant
identifying information;
(b) The specified date on which the person is to
appear;
(c) A specific reference to the crimes within the
jurisdiction of the Court which the person is alleged to have committed; and
(d) A concise statement of the facts which are alleged
to constitute the crime.
The summons shall be served on the person.
Article
59
Arrest proceedings
in the custodial State
1. A State Party which has received a request for
provisional arrest or for arrest and surrender shall immediately take steps to
arrest the person in question in accordance with its laws and the provisions of
Part 9.
2. A person arrested shall be brought promptly
before the competent judicial authority in the custodial State which shall
determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the
proper process; and
(c) The person’s rights have been respected.
3. The person arrested shall have the right to apply
to the competent authority in the custodial State for interim release pending
surrender.
4. In reaching a decision on any such application,
the competent authority in the custodial State shall consider whether, given
the gravity of the alleged crimes, there are urgent and exceptional
circumstances to justify interim release and whether necessary safeguards exist
to ensure that the custodial State can fulfil its duty to surrender the person
to the Court. It shall not be open to the competent authority of the custodial
State to consider whether the warrant of arrest was properly issued in
accordance with article 58, paragraph 1 (a) and (b).
5. The Pre‑Trial Chamber shall be notified of
any request for interim release and shall make recommendations to the competent
authority in the custodial State. The competent authority in the custodial
State shall give full consideration to such recommendations, including any
recommendations on measures to prevent the escape of the person, before
rendering its decision.
6. If the person is granted interim release, the Pre‑Trial
Chamber may request periodic reports on the status of the interim release.
7. Once ordered to be surrendered by the custodial
State, the person shall be delivered to the Court as soon as possible.
Article
60
Initial
proceedings before the Court
1. Upon the surrender of the person to the Court, or
the person’s appearance before the Court voluntarily or pursuant to a summons,
the Pre‑Trial Chamber shall satisfy itself that the person has been
informed of the crimes which he or she is alleged to have committed, and of his
or her rights under this Statute, including the right to apply for interim
release pending trial.
2. A person subject to a warrant of arrest may apply
for interim release pending trial. If the Pre‑Trial Chamber is satisfied
that the conditions set forth in article 58, paragraph 1, are met, the person
shall continue to be detained. If it is not so satisfied, the Pre‑Trial
Chamber shall release the person, with or without conditions.
3. The Pre‑Trial Chamber shall periodically
review its ruling on the release or detention of the person, and may do so at
any time on the request of the Prosecutor or the person. Upon such review, it
may modify its ruling as to detention, release or conditions of release, if it
is satisfied that changed circumstances so require.
4. The Pre‑Trial Chamber shall ensure that a
person is not detained for an unreasonable period prior to trial due to
inexcusable delay by the Prosecutor. If such delay occurs, the Court shall
consider releasing the person, with or without conditions.
5. If necessary, the Pre‑Trial Chamber may
issue a warrant of arrest to secure the presence of a person who has been
released.
Article
61
Confirmation of
the charges before trial
1. Subject to the provisions of paragraph 2, within
a reasonable time after the person’s surrender or voluntary appearance before
the Court, the Pre‑Trial Chamber shall hold a hearing to confirm the
charges on which the Prosecutor intends to seek trial. The hearing shall be
held in the presence of the Prosecutor and the person charged, as well as his
or her counsel.
2. The Pre‑Trial Chamber may, upon request of
the Prosecutor or on its own motion, hold a hearing in the absence of the
person charged to confirm the charges on which the Prosecutor intends to seek
trial when the person has:
(a) Waived his or her right to be present; or
(b) Fled or cannot be found and all reasonable steps
have been taken to secure his or her appearance before the Court and to inform
the person of the charges and that a hearing to confirm those charges will be
held.
In that case, the person shall be represented by
counsel where the Pre‑Trial Chamber determines that it is in the
interests of justice.
3. Within a reasonable time before the hearing, the
person shall:
(a) Be provided with a copy of the document containing
the charges on which the Prosecutor intends to bring the person to trial; and
(b) Be informed of the evidence on which the Prosecutor
intends to rely at the hearing.
The Pre‑Trial Chamber may issue orders
regarding the disclosure of information for the purposes of the hearing.
4. Before the hearing, the Prosecutor may continue
the investigation and may amend or withdraw any charges. The person shall be
given reasonable notice before the hearing of any amendment to or withdrawal of
charges. In case of a withdrawal of charges, the Prosecutor shall notify the
Pre‑Trial Chamber of the reasons for the withdrawal.
5. At the hearing, the Prosecutor shall support each
charge with sufficient evidence to establish substantial grounds to believe
that the person committed the crime charged. The Prosecutor may rely on
documentary or summary evidence and need not call the witnesses expected to
testify at the trial.
6. At the hearing, the person may:
(a) Object to the charges;
(b) Challenge the evidence presented by the Prosecutor;
and
(c) Present evidence.
7. The Pre‑Trial Chamber shall, on the basis
of the hearing, determine whether there is sufficient evidence to establish
substantial grounds to believe that the person committed each of the crimes
charged. Based on its determination, the Pre‑Trial Chamber shall:
(a) Confirm those charges in relation to which it has
determined that there is sufficient evidence, and commit the person to a Trial
Chamber for trial on the charges as confirmed;
(b) Decline to confirm those charges in relation to
which it has determined that there is insufficient evidence;
(c) Adjourn the hearing and request the Prosecutor to
consider:
(i) Providing further evidence or conducting further
investigation with respect to a particular charge; or
(ii) Amending a charge because the evidence submitted
appears to establish a different crime within the jurisdiction of the Court.
8. Where the Pre‑Trial Chamber declines to
confirm a charge, the Prosecutor shall not be precluded from subsequently
requesting its confirmation if the request is supported by additional evidence.
9. After the charges are confirmed and before the
trial has begun, the Prosecutor may, with the permission of the Pre‑Trial
Chamber and after notice to the accused, amend the charges. If the Prosecutor
seeks to add additional charges or to substitute more serious charges, a
hearing under this article to confirm those charges must be held. After
commencement of the trial, the Prosecutor may, with the permission of the Trial
Chamber, withdraw the charges.
10. Any warrant previously issued shall cease to have
effect with respect to any charges which have not been confirmed by the Pre‑Trial
Chamber or which have been withdrawn by the Prosecutor.
11. Once the charges have been confirmed in
accordance with this article, the Presidency shall constitute a Trial Chamber
which, subject to paragraph 9 and to article 64, paragraph 4, shall be
responsible for the conduct of subsequent proceedings and may exercise any
function of the Pre‑Trial Chamber that is relevant and capable of
application in those proceedings.
PART
6. THE TRIAL
Article
62
Place of trial
Unless otherwise decided, the place of the trial
shall be the seat of the Court.
Article
63
Trial in the
presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court,
continues to disrupt the trial, the Trial Chamber may remove the accused and
shall make provision for him or her to observe the trial and instruct counsel
from outside the courtroom, through the use of communications technology, if
required. Such measures shall be taken only in exceptional circumstances after
other reasonable alternatives have proved inadequate, and only for such
duration as is strictly required.
Article
64
Functions and
powers of the Trial Chamber
1. The functions and powers of the Trial Chamber set
out in this article shall be exercised in accordance with this Statute and the
Rules of Procedure and Evidence.
2. The Trial Chamber shall ensure that a trial is
fair and expeditious and is conducted with full respect for the rights of the
accused and due regard for the protection of victims and witnesses.
3. Upon assignment of a case for trial in accordance
with this Statute, the Trial Chamber assigned to deal with the case shall:
(a) Confer with the parties and adopt such procedures
as are necessary to facilitate the fair and expeditious conduct of the
proceedings;
(b) Determine the language or languages to be used at
trial; and
(c) Subject to any other relevant provisions of this
Statute, provide for disclosure of documents or information not previously
disclosed, sufficiently in advance of the commencement of the trial to enable
adequate preparation for trial.
4. The Trial Chamber may, if necessary for its
effective and fair functioning, refer preliminary issues to the Pre‑Trial
Chamber or, if necessary, to another available judge of the Pre‑Trial
Division.
5. Upon notice to the parties, the Trial Chamber
may, as appropriate, direct that there be joinder or severance in respect of
charges against more than one accused.
6. In performing its functions prior to trial or
during the course of a trial, the Trial Chamber may, as necessary:
(a) Exercise any functions of the Pre‑Trial
Chamber referred to in article 61, paragraph 11;
(b) Require the attendance and testimony of witnesses
and production of documents and other evidence by obtaining, if necessary, the
assistance of States as provided in this Statute;
(c) Provide for the protection of confidential
information;
(d) Order the production of evidence in addition to
that already collected prior to the trial or presented during the trial by the
parties;
(e) Provide for the protection of the accused,
witnesses and victims; and
(f) Rule on any other relevant matters.
7. The trial shall be held in public. The Trial
Chamber may, however, determine that special circumstances require that certain
proceedings be in closed session for the purposes set forth in article 68, or
to protect confidential or sensitive information to be given in evidence.
8. (a) At the commencement of the trial, the
Trial Chamber shall have read to the accused the charges previously confirmed
by the Pre‑Trial Chamber. The Trial Chamber shall satisfy itself that the
accused understands the nature of the charges. It shall afford him or her the
opportunity to make an admission of guilt in accordance with article 65 or to
plead not guilty.
(b) At the trial, the presiding judge may
give directions for the conduct of proceedings, including to ensure that they
are conducted in a fair and impartial manner. Subject to any directions of the
presiding judge, the parties may submit evidence in accordance with the
provisions of this Statute.
9. The Trial Chamber shall have, inter alia,
the power on application of a party or on its own motion to:
(a) Rule on the admissibility or relevance of evidence;
and
(b) Take all necessary steps to maintain order in the
course of a hearing.
10. The Trial Chamber shall ensure that a complete
record of the trial, which accurately reflects the proceedings, is made and
that it is maintained and preserved by the Registrar.
Article
65
Proceedings on an
admission of guilt
1. Where the accused makes an admission of guilt
pursuant to article 64, paragraph 8 (a), the Trial Chamber shall determine
whether:
(a) The accused understands the nature and consequences
of the admission of guilt;
(b) The admission is voluntarily made by the accused
after sufficient consultation with defence counsel; and
(c) The admission of guilt is supported by the facts of
the case that are contained in:
(i) The charges brought by the Prosecutor and admitted
by the accused;
(ii) Any materials presented by the Prosecutor which
supplement the charges and which the accused accepts; and
(iii) Any other evidence, such as the testimony of
witnesses, presented by the Prosecutor or the accused.
2. Where the Trial Chamber is satisfied that the
matters referred to in paragraph 1 are established, it shall consider the
admission of guilt, together with any additional evidence presented, as
establishing all the essential facts that are required to prove the crime to
which the admission of guilt relates, and may convict the accused of that
crime.
3. Where the Trial Chamber is not satisfied that the
matters referred to in paragraph 1 are established, it shall consider the
admission of guilt as not having been made, in which case it shall order that
the trial be continued under the ordinary trial procedures provided by this
Statute and may remit the case to another Trial Chamber.
4. Where the Trial Chamber is of the opinion that a
more complete presentation of the facts of the case is required in the
interests of justice, in particular the interests of the victims, the Trial
Chamber may:
(a) Request the Prosecutor to present additional
evidence, including the testimony of witnesses; or
(b) Order that the trial be continued under the
ordinary trial procedures provided by this Statute, in which case it shall
consider the admission of guilt as not having been made and may remit the case
to another Trial Chamber.
5. Any discussions between the Prosecutor and the
defence regarding modification of the charges, the admission of guilt or the
penalty to be imposed shall not be binding on the Court.
Article
66
Presumption of
innocence
1. Everyone shall be presumed innocent until proved
guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt
of the accused.
3. In order to convict the accused, the Court must
be convinced of the guilt of the accused beyond reasonable doubt.
Article
67
Rights of the
accused
1. In the determination of any charge, the accused
shall be entitled to a public hearing, having regard to the provisions of this
Statute, to a fair hearing conducted impartially, and to the following minimum
guarantees, in full equality:
(a) To be informed promptly and in detail of the
nature, cause and content of the charge, in a language which the accused fully
understands and speaks;
(b) To have adequate time and facilities for the
preparation of the defence and to communicate freely with counsel of the
accused’s choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present
at the trial, to conduct the defence in person or through legal assistance of
the accused’s choosing, to be informed, if the accused does not have legal
assistance, of this right and to have legal assistance assigned by the Court in
any case where the interests of justice so require, and without payment if the
accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against
him or her and to obtain the attendance and examination of witnesses on his or
her behalf under the same conditions as witnesses against him or her. The
accused shall also be entitled to raise defences and to present other evidence
admissible under this Statute;
(f) To have, free of any cost, the assistance of a
competent interpreter and such translations as are necessary to meet the
requirements of fairness, if any of the proceedings of or documents presented
to the Court are not in a language which the accused fully understands and
speaks;
(g) Not to be compelled to testify or to confess guilt
and to remain silent, without such silence being a consideration in the
determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his
or her defence; and
(i) Not to have imposed on him or her any reversal of
the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for
in this Statute, the Prosecutor shall, as soon as practicable, disclose to the
defence evidence in the Prosecutor’s possession or control which he or she
believes shows or tends to show the innocence of the accused, or to mitigate
the guilt of the accused, or which may affect the credibility of prosecution
evidence. In case of doubt as to the application of this paragraph, the Court
shall decide.
Article
68
Protection of the
victims and witnesses and their
participation in
the proceedings
1. The Court shall take appropriate measures to
protect the safety, physical and psychological well‑being, dignity and
privacy of victims and witnesses. In so doing, the Court shall have regard to
all relevant factors, including age, gender as defined in article 7, paragraph
3, and health, and the nature of the crime, in particular, but not limited to,
where the crime involves sexual or gender violence or violence against
children. The Prosecutor shall take such measures particularly during the
investigation and prosecution of such crimes. These measures shall not be
prejudicial to or inconsistent with the rights of the accused and a fair and
impartial trial.
2. As an exception to the principle of public
hearings provided for in article 67, the Chambers of the Court may, to protect
victims and witnesses or an accused, conduct any part of the proceedings in
camera or allow the presentation of evidence by electronic or other special
means. In particular, such measures shall be implemented in the case of a
victim of sexual violence or a child who is a victim or a witness, unless
otherwise ordered by the Court, having regard to all the circumstances,
particularly the views of the victim or witness.
3. Where the personal interests of the victims are
affected, the Court shall permit their views and concerns to be presented and
considered at stages of the proceedings determined to be appropriate by the
Court and in a manner which is not prejudicial to or inconsistent with the rights
of the accused and a fair and impartial trial. Such views and concerns may be
presented by the legal representatives of the victims where the Court considers
it appropriate, in accordance with the Rules of Procedure and Evidence.
4. The Victims and Witnesses Unit may advise the
Prosecutor and the Court on appropriate protective measures, security
arrangements, counselling and assistance as referred to in article 43,
paragraph 6.
5. Where the disclosure of evidence or information
pursuant to this Statute may lead to the grave endangerment of the security of
a witness or his or her family, the Prosecutor may, for the purposes of any
proceedings conducted prior to the commencement of the trial, withhold such
evidence or information and instead submit a summary thereof. Such measures
shall be exercised in a manner which is not prejudicial to or inconsistent with
the rights of the accused and a fair and impartial trial.
6. A State may make an application for necessary
measures to be taken in respect of the protection of its servants or agents and
the protection of confidential or sensitive information.
Article
69
Evidence
1. Before testifying, each witness shall, in
accordance with the Rules of Procedure and Evidence, give an undertaking as to
the truthfulness of the evidence to be given by that witness.
2. The testimony of a witness at trial shall be
given in person, except to the extent provided by the measures set forth in
article 68 or in the Rules of Procedure and Evidence. The Court may also permit
the giving of viva voce (oral) or recorded testimony of a witness by
means of video or audio technology, as well as the introduction of documents or
written transcripts, subject to this Statute and in accordance with the Rules
of Procedure and Evidence. These measures shall not be prejudicial to or
inconsistent with the rights of the accused.
3. The parties may submit evidence relevant to the
case, in accordance with article 64. The Court shall have the authority to
request the submission of all evidence that it considers necessary for the
determination of the truth.
4. The Court may rule on the relevance or
admissibility of any evidence, taking into account, inter alia, the
probative value of the evidence and any prejudice that such evidence may cause
to a fair trial or to a fair evaluation of the testimony of a witness, in
accordance with the Rules of Procedure and Evidence.
5. The Court shall respect and observe privileges on
confidentiality as provided for in the Rules of Procedure and Evidence.
6. The Court shall not require proof of facts of
common knowledge but may take judicial notice of them.
7. Evidence obtained by means of a violation of this
Statute or internationally recognized human rights shall not be admissible if:
(a) The violation casts substantial doubt on the
reliability of the evidence; or
(b) The admission of the evidence would be antithetical
to and would seriously damage the integrity of the proceedings.
8. When deciding on the relevance or admissibility
of evidence collected by a State, the Court shall not rule on the application
of the State’s national law.
Article
70
Offences against
the administration of justice
1. The Court shall have jurisdiction over the
following offences against its administration of justice when committed intentionally:
(a) Giving false testimony when under an obligation
pursuant to article 69, paragraph 1, to tell the truth;
(b) Presenting evidence that the party knows is false
or forged;
(c) Corruptly influencing a witness, obstructing or
interfering with the attendance or testimony of a witness, retaliating against
a witness for giving testimony or destroying, tampering with or interfering
with the collection of evidence;
(d) Impeding, intimidating or corruptly influencing an
official of the Court for the purpose of forcing or persuading the official not
to perform, or to perform improperly, his or her duties;
(e) Retaliating against an official of the Court on
account of duties performed by that or another official;
(f) Soliciting or accepting a bribe as an official of
the Court in connection with his or her official duties.
2. The principles and procedures governing the
Court’s exercise of jurisdiction over offences under this article shall be
those provided for in the Rules of Procedure and Evidence. The conditions for
providing international cooperation to the Court with respect to its
proceedings under this article shall be governed by the domestic laws of the
requested State.
3. In the event of conviction, the Court may impose
a term of imprisonment not exceeding five years, or a fine in accordance with
the Rules of Procedure and Evidence, or both.
4. (a) Each State Party shall extend its
criminal laws penalizing offences against the integrity of its own
investigative or judicial process to offences against the administration of
justice referred to in this article, committed on its territory, or by one of
its nationals;
(b) Upon request by the Court, whenever
it deems it proper, the State Party shall submit the case to its competent
authorities for the purpose of prosecution. Those authorities shall treat such
cases with diligence and devote sufficient resources to enable them to be
conducted effectively.
Article
71
Sanctions for
misconduct before the Court
1. The Court may sanction persons present before it
who commit misconduct, including disruption of its proceedings or deliberate
refusal to comply with its directions, by administrative measures other than
imprisonment, such as temporary or permanent removal from the courtroom, a fine
or other similar measures provided for in the Rules of Procedure and Evidence.
2. The procedures governing the imposition of the
measures set forth in paragraph 1 shall be those provided for in the Rules of
Procedure and Evidence.
Article
72
Protection of
national security information
1. This article applies in any case where the
disclosure of the information or documents of a State would, in the opinion of
that State, prejudice its national security interests. Such cases include those
falling within the scope of article 56, paragraphs 2 and 3, article 61,
paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68,
paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising
at any other stage of the proceedings where such disclosure may be at issue.
2. This article shall also apply when a person who
has been requested to give information or evidence has refused to do so or has
referred the matter to the State on the ground that disclosure would prejudice
the national security interests of a State and the State concerned confirms
that it is of the opinion that disclosure would prejudice its national security
interests.
3. Nothing in this article shall prejudice the
requirements of confidentiality applicable under article 54, paragraph 3 (e)
and (f), or the application of article 73.
4. If a State learns that information or documents
of the State are being, or are likely to be, disclosed at any stage of the
proceedings, and it is of the opinion that disclosure would prejudice its national
security interests, that State shall have the right to intervene in order to
obtain resolution of the issue in accordance with this article.
5. If, in the opinion of a State, disclosure of
information would prejudice its national security interests, all reasonable
steps will be taken by the State, acting in conjunction with the Prosecutor,
the defence or the Pre‑Trial Chamber or Trial Chamber, as the case may
be, to seek to resolve the matter by cooperative means. Such steps may include:
(a) Modification or clarification of the request;
(b) A determination by the Court regarding the
relevance of the information or evidence sought, or a determination as to
whether the evidence, though relevant, could be or has been obtained from a
source other than the requested State;
(c) Obtaining the information or evidence from a
different source or in a different form; or
(d) Agreement on conditions under which the assistance
could be provided including, among other things, providing summaries or
redactions, limitations on disclosure, use of in camera or ex parte
proceedings, or other protective measures permissible under the Statute and the
Rules of Procedure and Evidence.
6. Once all reasonable steps have been taken to
resolve the matter through cooperative means, and if the State considers that
there are no means or conditions under which the information or documents could
be provided or disclosed without prejudice to its national security interests,
it shall so notify the Prosecutor or the Court of the specific reasons for its
decision, unless a specific description of the reasons would itself necessarily
result in such prejudice to the State’s national security interests.
7. Thereafter, if the Court determines that the
evidence is relevant and necessary for the establishment of the guilt or
innocence of the accused, the Court may undertake the following actions:
(a) Where disclosure of the information or document is
sought pursuant to a request for cooperation under Part 9 or the
circumstances described in paragraph 2, and the State has invoked the ground
for refusal referred to in article 93, paragraph 4:
(i) The Court may, before making any conclusion referred
to in subparagraph 7 (a) (ii), request further consultations for the purpose of
considering the State’s representations, which may include, as appropriate,
hearings in camera and ex parte;
(ii) If the Court concludes that, by invoking the ground
for refusal under article 93, paragraph 4, in the circumstances of the case,
the requested State is not acting in accordance with its obligations under this
Statute, the Court may refer the matter in accordance with article 87,
paragraph 7, specifying the reasons for its conclusion; and
(iii) The Court may make such inference in the trial of
the accused as to the existence or non‑existence of a fact, as may be
appropriate in the circumstances; or
(b) In all other circumstances:
(i) Order disclosure; or
(ii) To the extent it does not order disclosure, make
such inference in the trial of the accused as to the existence or non‑existence
of a fact, as may be appropriate in the circumstances.
Article
73
Third‑party
information or documents
If a State Party is requested by the Court to
provide a document or information in its custody, possession or control, which
was disclosed to it in confidence by a State, intergovernmental organization or
international organization, it shall seek the consent of the originator to
disclose that document or information. If the originator is a State Party, it
shall either consent to disclosure of the information or document or undertake
to resolve the issue of disclosure with the Court, subject to the provisions of
article 72. If the originator is not a State Party and refuses to consent to
disclosure, the requested State shall inform the Court that it is unable to
provide the document or information because of a pre‑existing obligation
of confidentiality to the originator.
Article
74
Requirements for
the decision
1. All the judges of the Trial Chamber shall be
present at each stage of the trial and throughout their deliberations. The
Presidency may, on a case‑by‑case basis, designate, as available,
one or more alternate judges to be present at each stage of the trial and to
replace a member of the Trial Chamber if that member is unable to continue
attending.
2. The Trial Chamber’s decision shall be based on
its evaluation of the evidence and the entire proceedings. The decision shall
not exceed the facts and circumstances described in the charges and any
amendments to the charges. The Court may base its decision only on evidence
submitted and discussed before it at the trial.
3. The judges shall attempt to achieve unanimity in
their decision, failing which the decision shall be taken by a majority of the
judges.
4. The deliberations of the Trial Chamber shall
remain secret.
5. The decision shall be in writing and shall
contain a full and reasoned statement of the Trial Chamber’s findings on the
evidence and conclusions. The Trial Chamber shall issue one decision. When
there is no unanimity, the Trial Chamber’s decision shall contain the views of
the majority and the minority. The decision or a summary thereof shall be
delivered in open court.
Article
75
Reparations to
victims
1. The Court shall establish principles relating to
reparations to, or in respect of, victims, including restitution, compensation
and rehabilitation. On this basis, in its decision the Court may, either upon
request or on its own motion in exceptional circumstances, determine the scope
and extent of any damage, loss and injury to, or in respect of, victims and
will state the principles on which it is acting.
2. The Court may make an order directly against a
convicted person specifying appropriate reparations to, or in respect of,
victims, including restitution, compensation and rehabilitation.
Where appropriate, the Court may order that the
award for reparations be made through the Trust Fund provided for in article
79.
3. Before making an order under this article, the
Court may invite and shall take account of representations from or on behalf of
the convicted person, victims, other interested persons or interested States.
4. In exercising its power under this article, the
Court may, after a person is convicted of a crime within the jurisdiction of
the Court, determine whether, in order to give effect to an order which it may
make under this article, it is necessary to seek measures under article 93,
paragraph 1.
5. A State Party shall give effect to a decision
under this article as if the provisions of article 109 were applicable to this
article.
6. Nothing in this article shall be interpreted as
prejudicing the rights of victims under national or international law.
Article
76
Sentencing
1. In the event of a conviction, the Trial Chamber
shall consider the appropriate sentence to be imposed and shall take into
account the evidence presented and submissions made during the trial that are
relevant to the sentence.
2. Except where article 65 applies and before the
completion of the trial, the Trial Chamber may on its own motion and shall, at
the request of the Prosecutor or the accused, hold a further hearing to hear
any additional evidence or submissions relevant to the sentence, in accordance
with the Rules of Procedure and Evidence.
3. Where paragraph 2 applies, any representations
under article 75 shall be heard during the further hearing referred to in
paragraph 2 and, if necessary, during any additional hearing.
4. The sentence shall be pronounced in public and,
wherever possible, in the presence of the accused.
PART
7. PENALTIES
Article
77
Applicable
penalties
1. Subject to article 110, the Court may impose one
of the following penalties on a person convicted of a crime referred to in
article 5 of this Statute:
(a) Imprisonment for a specified number of years, which
may not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the
extreme gravity of the crime and the individual circumstances of the convicted
person.
2. In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules
of Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets
derived directly or indirectly from that crime, without prejudice to the rights
of bona fide third parties.
Article
78
Determination of
the sentence
1. In determining the sentence, the Court shall, in
accordance with the Rules of Procedure and Evidence, take into account such
factors as the gravity of the crime and the individual circumstances of the
convicted person.
2. In imposing a sentence of imprisonment, the Court
shall deduct the time, if any, previously spent in detention in accordance with
an order of the Court. The Court may deduct any time otherwise spent in
detention in connection with conduct underlying the crime.
3. When a person has been convicted of more than one
crime, the Court shall pronounce a sentence for each crime and a joint sentence
specifying the total period of imprisonment. This period shall be no less than
the highest individual sentence pronounced and shall not exceed 30 years
imprisonment or a sentence of life imprisonment in conformity with article 77,
paragraph 1 (b).
Article
79
Trust Fund
1. A Trust Fund shall be established by decision of
the Assembly of States Parties for the benefit of victims of crimes within the
jurisdiction of the Court, and of the families of such victims.
2. The Court may order money and other property
collected through fines or forfeiture to be transferred, by order of the Court,
to the Trust Fund.
3. The Trust Fund shall be managed according to
criteria to be determined by the Assembly of States Parties.
Article
80
Non‑prejudice
to national application of
penalties and
national laws
Nothing in this Part affects the application by
States of penalties prescribed by their national law, nor the law of States
which do not provide for penalties prescribed in this Part.
PART
8. APPEAL AND REVISION
Article
81
Appeal against
decision of acquittal or conviction
or against
sentence
1. A decision under article 74 may be appealed in
accordance with the Rules of Procedure and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the
following grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person, or the Prosecutor on that person’s
behalf, may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or
reliability of the proceedings or decision.
2. (a) A sentence may be appealed, in
accordance with the Rules of Procedure and Evidence, by the Prosecutor or the
convicted person on the ground of disproportion between the crime and the
sentence;
(b) If on an appeal against sentence the
Court considers that there are grounds on which the conviction might be set
aside, wholly or in part, it may invite the Prosecutor and the convicted person
to submit grounds under article 81, paragraph 1 (a) or (b), and may render a
decision on conviction in accordance with article 83;
(c) The same procedure applies when the
Court, on an appeal against conviction only, considers that there are grounds
to reduce the sentence under paragraph 2 (a).
3. (a) Unless the Trial Chamber orders
otherwise, a convicted person shall remain in custody pending an appeal;
(b) When a convicted person’s time in
custody exceeds the sentence of imprisonment imposed, that person shall be
released, except that if the Prosecutor is also appealing, the release may be
subject to the conditions under subparagraph (c) below;
(c) In case of an acquittal, the accused
shall be released immediately, subject to the following:
(i) Under exceptional circumstances, and having regard, inter
alia, to the concrete risk of flight, the seriousness of the offence
charged and the probability of success on appeal, the Trial Chamber, at the
request of the Prosecutor, may maintain the detention of the person pending
appeal;
(ii) A decision by the Trial Chamber under
subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure
and Evidence.
4. Subject to the provisions of paragraph 3 (a) and
(b), execution of the decision or sentence shall be suspended during the period
allowed for appeal and for the duration of the appeal proceedings.
Article
82
Appeal against
other decisions
1. Either party may appeal any of the following
decisions in accordance with the Rules of Procedure and Evidence:
(a) A decision with respect to jurisdiction or
admissibility;
(b) A decision granting or denying release of the
person being investigated or prosecuted;
(c) A decision of the Pre‑Trial Chamber to act on
its own initiative under article 56, paragraph 3;
(d) A decision that involves an issue that would
significantly affect the fair and expeditious conduct of the proceedings or the
outcome of the trial, and for which, in the opinion of the Pre‑Trial or
Trial Chamber, an immediate resolution by the Appeals Chamber may materially
advance the proceedings.
2. A decision of the Pre‑Trial Chamber under
article 57, paragraph 3 (d), may be appealed against by the State concerned or
by the Prosecutor, with the leave of the Pre‑Trial Chamber. The appeal
shall be heard on an expedited basis.
3. An appeal shall not of itself have suspensive
effect unless the Appeals Chamber so orders, upon request, in accordance with
the Rules of Procedure and Evidence.
4. A legal representative of the victims, the
convicted person or a bona fide owner of property adversely affected by an
order under article 75 may appeal against the order for reparations, as provided
in the Rules of Procedure and Evidence.
Article
83
Proceedings on
appeal
1. For the purposes of proceedings under article 81
and this article, the Appeals Chamber shall have all the powers of the Trial
Chamber.
2. If the Appeals Chamber finds that the proceedings
appealed from were unfair in a way that affected the reliability of the
decision or sentence, or that the decision or sentence appealed from was
materially affected by error of fact or law or procedural error, it may:
(a) Reverse or amend the decision or sentence; or
(b) Order a new trial before a different Trial Chamber.
For these purposes, the Appeals Chamber may
remand a factual issue to the original Trial Chamber for it to determine the
issue and to report back accordingly, or may itself call evidence to determine
the issue. When the decision or sentence has been appealed only by the person
convicted, or the Prosecutor on that person’s behalf, it cannot be amended to
his or her detriment.
3. If in an appeal against sentence the Appeals Chamber
finds that the sentence is disproportionate to the crime, it may vary the
sentence in accordance with Part 7.
4. The judgement of the Appeals Chamber shall be
taken by a majority of the judges and shall be delivered in open court. The
judgement shall state the reasons on which it is based. When there is no
unanimity, the judgement of the Appeals Chamber shall contain the views of the
majority and the minority, but a judge may deliver a separate or dissenting
opinion on a question of law.
5. The Appeals Chamber may deliver its judgement in
the absence of the person acquitted or convicted.
Article
84
Revision of
conviction or sentence
1. The convicted person or, after death, spouses,
children, parents or one person alive at the time of the accused’s death who
has been given express written instructions from the accused to bring such a
claim, or the Prosecutor on the person’s behalf, may apply to the Appeals
Chamber to revise the final judgement of conviction or sentence on the grounds
that:
(a) New evidence has been discovered that:
(i) Was not available at the time of trial, and such
unavailability was not wholly or partially attributable to the party making
application; and
(ii) Is sufficiently important that had it been proved
at trial it would have been likely to have resulted in a different verdict;
(b) It has been newly discovered that decisive
evidence, taken into account at trial and upon which the conviction depends,
was false, forged or falsified;
(c) One or more of the judges who participated in
conviction or confirmation of the charges has committed, in that case, an act
of serious misconduct or serious breach of duty of sufficient gravity to
justify the removal of that judge or those judges from office under article 46.
2. The Appeals Chamber shall reject the application
if it considers it to be unfounded. If it determines that the application is
meritorious, it may, as appropriate:
(a) Reconvene the original Trial Chamber;
(b) Constitute a new Trial Chamber; or
(c) Retain jurisdiction over the matter,
with a view to, after hearing the parties in the manner set
forth in the Rules of Procedure and Evidence, arriving at a determination on
whether the judgement should be revised.
Article
85
Compensation to an
arrested or convicted person
1. Anyone who has been the victim of unlawful arrest
or detention shall have an enforceable right to compensation.
2. When a person has by a final decision been
convicted of a criminal offence, and when subsequently his or her conviction
has been reversed on the ground that a new or newly discovered fact shows
conclusively that there has been a miscarriage of justice, the person who has
suffered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non‑disclosure of the
unknown fact in time is wholly or partly attributable to him or her.
3. In exceptional circumstances, where the Court
finds conclusive facts showing that there has been a grave and manifest
miscarriage of justice, it may in its discretion award compensation, according
to the criteria provided in the Rules of Procedure and Evidence, to a person
who has been released from detention following a final decision of acquittal or
a termination of the proceedings for that reason.
PART
9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE
Article
86
General obligation
to cooperate
States Parties shall, in accordance with the
provisions of this Statute, cooperate fully with the Court in its investigation
and prosecution of crimes within the jurisdiction of the Court.
Article
87
Requests for
cooperation: general provisions
1. (a) The Court shall have the authority to
make requests to States Parties for cooperation. The requests shall be
transmitted through the diplomatic channel or any other appropriate channel as
may be designated by each State Party upon ratification, acceptance, approval
or accession.
Subsequent changes to the designation shall be
made by each State Party in accordance with the Rules of Procedure and
Evidence.
(b) When appropriate, without prejudice
to the provisions of subparagraph (a), requests may also be transmitted
through the International Criminal Police Organization or any appropriate
regional organization.
2. Requests for cooperation and any documents
supporting the request shall either be in or be accompanied by a translation
into an official language of the requested State or one of the working
languages of the Court, in accordance with the choice made by that State upon
ratification, acceptance, approval or accession.
Subsequent changes to this choice shall be made
in accordance with the Rules of Procedure and Evidence.
3. The requested State shall keep confidential a
request for cooperation and any documents supporting the request, except to the
extent that the disclosure is necessary for execution of the request.
4. In relation to any request for assistance
presented under this Part, the Court may take such measures, including measures
related to the protection of information, as may be necessary to ensure the safety
or physical or psychological well‑being of any victims, potential
witnesses and their families. The Court may request that any information that
is made available under this Part shall be provided and handled in a manner
that protects the safety and physical or psychological well‑being of any
victims, potential witnesses and their families.
5. (a) The Court may invite any State not
party to this Statute to provide assistance under this Part on the basis of an
ad hoc arrangement, an agreement with such State or any other appropriate
basis.
(b) Where a State not party to this
Statute, which has entered into an ad hoc arrangement or an agreement with the
Court, fails to cooperate with requests pursuant to any such arrangement or
agreement, the Court may so inform the Assembly of States Parties or, where the
Security Council referred the matter to the Court, the Security Council.
6. The Court may ask any intergovernmental
organization to provide information or documents. The Court may also ask for
other forms of cooperation and assistance which may be agreed upon with such an
organization and which are in accordance with its competence or mandate.
7. Where a State Party fails to comply with a
request to cooperate by the Court contrary to the provisions of this Statute,
thereby preventing the Court from exercising its functions and powers under
this Statute, the Court may make a finding to that effect and refer the matter
to the Assembly of States Parties or, where the Security Council referred the
matter to the Court, to the Security Council.
Article
88
Availability of
procedures under national law
States Parties shall ensure that there are
procedures available under their national law for all of the forms of
cooperation which are specified under this Part.
Article
89
Surrender of
persons to the Court
1. The Court may transmit a request for the arrest
and surrender of a person, together with the material supporting the request
outlined in article 91, to any State on the territory of which that person may
be found and shall request the cooperation of that State in the arrest and
surrender of such a person. States Parties shall, in accordance with the
provisions of this Part and the procedure under their national law, comply with
requests for arrest and surrender.
2. Where the person sought for surrender brings a
challenge before a national court on the basis of the principle of ne bis in
idem as provided in article 20, the requested State shall immediately
consult with the Court to determine if there has been a relevant ruling on
admissibility. If the case is admissible, the requested State shall proceed
with the execution of the request. If an admissibility ruling is pending, the
requested State may postpone the execution of the request for surrender of the
person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in
accordance with its national procedural law, transportation through its
territory of a person being surrendered to the Court by another State, except
where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit
shall be transmitted in accordance with article 87. The request for transit
shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and
their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be
detained in custody during the period of transit;
(d) No authorization is required if the
person is transported by air and no landing is scheduled on the territory of
the transit State;
(e) If an unscheduled landing occurs on
the territory of the transit State, that State may require a request for
transit from the Court as provided for in subparagraph (b). The transit
State shall detain the person being transported until the request for transit
is received and the transit is effected, provided that detention for purposes
of this subparagraph may not be extended beyond 96 hours from the unscheduled
landing unless the request is received within that time.
4. If the person sought is being proceeded against
or is serving a sentence in the requested State for a crime different from that
for which surrender to the Court is sought, the requested State, after making
its decision to grant the request, shall consult with the Court.
Article
90
Competing requests
1. A State Party which receives a request from the
Court for the surrender of a person under article 89 shall, if it also receives
a request from any other State for the extradition of the same person for the
same conduct which forms the basis of the crime for which the Court seeks the
person’s surrender, notify the Court and the requesting State of that fact.
2. Where the requesting State is a State Party, the
requested State shall give priority to the request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a
determination that the case in respect of which surrender is sought is
admissible and that determination takes into account the investigation or
prosecution conducted by the requesting State in respect of its request for
extradition; or
(b) The Court makes the determination described in
subparagraph (a) pursuant to the requested State’s notification under paragraph
1.
3. Where a determination under paragraph 2 (a) has
not been made, the requested State may, at its discretion, pending the
determination of the Court under paragraph 2 (b), proceed to deal with the
request for extradition from the requesting State but shall not extradite the
person until the Court has determined that the case is inadmissible. The
Court’s determination shall be made on an expedited basis.
4. If the requesting State is a State not Party to
this Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall give priority
to the request for surrender from the Court, if the Court has determined that
the case is admissible.
5. Where a case under paragraph 4 has not been
determined to be admissible by the Court, the requested State may, at its
discretion, proceed to deal with the request for extradition from the
requesting State.
6. In cases where paragraph 4 applies except that
the requested State is under an existing international obligation to extradite
the person to the requesting State not Party to this Statute, the requested
State shall determine whether to surrender the person to the Court or extradite
the person to the requesting State. In making its decision, the requested State
shall consider all the relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including,
where relevant, whether the crime was committed in its territory and the nationality
of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the
Court and the requesting State.
7. Where a State Party which receives a request from
the Court for the surrender of a person also receives a request from any State
for the extradition of the same person for conduct other than that which
constitutes the crime for which the Court seeks the person’s surrender:
(a) The requested State shall, if it is not under an
existing international obligation to extradite the person to the requesting
State, give priority to the request from the Court;
(b) The requested State shall, if it is under an
existing international obligation to extradite the person to the requesting
State, determine whether to surrender the person to the Court or to extradite
the person to the requesting State. In making its decision, the requested State
shall consider all the relevant factors, including but not limited to those set
out in paragraph 6, but shall give special consideration to the relative nature
and gravity of the conduct in question.
8. Where pursuant to a notification under this
article, the Court has determined a case to be inadmissible, and subsequently
extradition to the requesting State is refused, the requested State shall
notify the Court of this decision.
Article
91
Contents of
request for arrest and surrender
1. A request for arrest and surrender shall be made
in writing. In urgent cases, a request may be made by any medium capable of
delivering a written record, provided that the request shall be confirmed
through the channel provided for in article 87, paragraph 1 (a).
2. In the case of a request for the arrest and
surrender of a person for whom a warrant of arrest has been issued by the Pre‑Trial
Chamber under article 58, the request shall contain or be supported by:
(a) Information describing the person sought,
sufficient to identify the person, and information as to that person’s probable
location;
(b) A copy of the warrant of arrest; and
(c) Such documents, statements or information as may be
necessary to meet the requirements for the surrender process in the requested
State, except that those requirements should not be more burdensome than those
applicable to requests for extradition pursuant to treaties or arrangements
between the requested State and other States and should, if possible, be less
burdensome, taking into account the distinct nature of the Court.
3. In the case of a request for the arrest and
surrender of a person already convicted, the request shall contain or be
supported by:
(a) A copy of any warrant of arrest for that person;
(b) A copy of the judgement of conviction;
(c) Information to demonstrate that the person sought
is the one referred to in the judgement of conviction; and
(d) If the person sought has been sentenced, a copy of
the sentence imposed and, in the case of a sentence for imprisonment, a
statement of any time already served and the time remaining to be served.
4. Upon the request of the Court, a State Party
shall consult with the Court, either generally or with respect to a specific
matter, regarding any requirements under its national law that may apply under
paragraph 2 (c). During the consultations, the State Party shall advise the
Court of the specific requirements of its national law.
Article
92
Provisional arrest
1. In urgent cases, the Court may request the
provisional arrest of the person sought, pending presentation of the request
for surrender and the documents supporting the request as specified in article
91.
2. The request for provisional arrest shall be made
by any medium capable of delivering a written record and shall contain:
(a) Information describing the person sought,
sufficient to identify the person, and information as to that person’s probable
location;
(b) A concise statement of the crimes for which the
person’s arrest is sought and of the facts which are alleged to constitute
those crimes, including, where possible, the date and location of the crime;
(c) A statement of the existence of a warrant of arrest
or a judgement of conviction against the person sought; and
(d) A statement that a request for surrender of the
person sought will follow.
3. A person who is provisionally arrested may be
released from custody if the requested State has not received the request for
surrender and the documents supporting the request as specified in article 91
within the time limits specified in the Rules of Procedure and Evidence.
However, the person may consent to surrender before the expiration of this
period if permitted by the law of the requested State. In such a case, the
requested State shall proceed to surrender the person to the Court as soon as
possible.
4. The fact that the person sought has been released
from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest
and surrender of that person if the request for surrender and the documents
supporting the request are delivered at a later date.
Article
93
Other forms of
cooperation
1. States Parties shall, in accordance with the
provisions of this Part and under procedures of national law, comply with
requests by the Court to provide the following assistance in relation to
investigations or prosecutions:
(a) The identification and whereabouts of persons or
the location of items;
(b) The taking of evidence, including testimony under
oath, and the production of evidence, including expert opinions and reports
necessary to the Court;
(c) The questioning of any person being investigated or
prosecuted;
(d) The service of documents, including judicial
documents;
(e) Facilitating the voluntary appearance of persons as
witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in
paragraph 7;
(g) The examination of places or sites, including the
exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including
official records and documents;
(j) The protection of victims and witnesses and the
preservation of evidence;
(k) The identification, tracing and freezing or seizure
of proceeds, property and assets and instrumentalities of crimes for the
purpose of eventual forfeiture, without prejudice to the rights of bona fide
third parties; and
(l) Any other type of assistance which is not
prohibited by the law of the requested State, with a view to facilitating the
investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an
assurance to a witness or an expert appearing before the Court that he or she
will not be prosecuted, detained or subjected to any restriction of personal
freedom by the Court in respect of any act or omission that preceded the
departure of that person from the requested State.
3. Where execution of a particular measure of
assistance detailed in a request presented under paragraph 1, is prohibited in
the requested State on the basis of an existing fundamental legal principle of
general application, the requested State shall promptly consult with the Court
to try to resolve the matter. In the consultations, consideration should be
given to whether the assistance can be rendered in another manner or subject to
conditions. If after consultations the matter cannot be resolved, the Court
shall modify the request as necessary.
4. In accordance with article 72, a State Party may
deny a request for assistance, in whole or in part, only if the request
concerns the production of any documents or disclosure of evidence which
relates to its national security.
5. Before denying a request for assistance under
paragraph 1 (l), the requested State shall consider whether the assistance can
be provided subject to specified conditions, or whether the assistance can be
provided at a later date or in an alternative manner, provided that if the
Court or the Prosecutor accepts the assistance subject to conditions, the Court
or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the
requested State Party shall promptly inform the Court or the Prosecutor of the
reasons for such denial.
7. (a) The Court may request the temporary
transfer of a person in custody for purposes of identification or for obtaining
testimony or other assistance. The person may be transferred if the following
conditions are fulfilled:
(i) The person freely gives his or her informed consent
to the transfer; and
(ii) The requested State agrees to the transfer, subject
to such conditions as that State and the Court may agree.
(b) The person being transferred shall
remain in custody. When the purposes of the transfer have been fulfilled, the
Court shall return the person without delay to the requested State.
8. (a) The Court shall ensure the
confidentiality of documents and information, except as required for the
investigation and proceedings described in the request.
(b) The requested State may, when
necessary, transmit documents or information to the Prosecutor on a
confidential basis. The Prosecutor may then use them solely for the purpose of
generating new evidence.
(c) The requested State may, on its own
motion or at the request of the Prosecutor, subsequently consent to the
disclosure of such documents or information. They may then be used as evidence
pursuant to the provisions of Parts 5 and 6 and in accordance with the
Rules of Procedure and Evidence.
9. (a) (i) In
the event that a State Party receives competing requests, other than for
surrender or extradition, from the Court and from another State pursuant to an
international obligation, the State Party shall endeavour, in consultation with
the Court and the other State, to meet both requests, if necessary by
postponing or attaching conditions to one or the other request.
(ii) Failing
that, competing requests shall be resolved in accordance with the principles
established in article 90.
(b) Where, however, the request from the
Court concerns information, property or persons which are subject to the
control of a third State or an international organization by virtue of an
international agreement, the requested States shall so inform the Court and the
Court shall direct its request to the third State or international
organization.
10. (a) The Court may, upon request, cooperate
with and provide assistance to a State Party conducting an investigation into
or trial in respect of conduct which constitutes a crime within the
jurisdiction of the Court or which constitutes a serious crime under the
national law of the requesting State.
(b) (i) The assistance provided
under subparagraph (a) shall include, inter alia:
a. The
transmission of statements, documents or other types of evidence obtained in
the course of an investigation or a trial conducted by the Court; and
b. The
questioning of any person detained by order of the Court;
(ii) In the case of
assistance under subparagraph (b) (i) a:
a. If the
documents or other types of evidence have been obtained with the assistance of
a State, such transmission shall require the consent of that State;
b. If the
statements, documents or other types of evidence have been provided by a
witness or expert, such transmission shall be subject to the provisions of
article 68.
(c) The Court may, under the conditions
set out in this paragraph, grant a request for assistance under this paragraph
from a State which is not a Party to this Statute.
Article
94
Postponement of
execution of a request in respect
of ongoing
investigation or prosecution
1. If the immediate execution of a request would
interfere with an ongoing investigation or prosecution of a case different from
that to which the request relates, the requested State may postpone the
execution of the request for a period of time agreed upon with the Court.
However, the postponement shall be no longer than is necessary to complete the
relevant investigation or prosecution in the requested State. Before making a
decision to postpone, the requested State should consider whether the
assistance may be immediately provided subject to certain conditions.
2. If a decision to postpone is taken pursuant to
paragraph 1, the Prosecutor may, however, seek measures to preserve evidence,
pursuant to article 93, paragraph 1 (j).
Article
95
Postponement of
execution of a request in
respect of an
admissibility challenge
Where there is an admissibility challenge under
consideration by the Court pursuant to article 18 or 19, the requested State
may postpone the execution of a request under this Part pending a determination
by the Court, unless the Court has specifically ordered that the Prosecutor may
pursue the collection of such evidence pursuant to article 18 or 19.
Article
96
Contents of
request for other forms of
assistance under
article 93
1. A request for other forms of assistance referred
to in article 93 shall be made in writing. In urgent cases, a request may be
made by any medium capable of delivering a written record, provided that the
request shall be confirmed through the channel provided for in article 87,
paragraph 1 (a).
2. The request shall, as applicable, contain or be
supported by the following:
(a) A concise statement of the purpose of the request
and the assistance sought, including the legal basis and the grounds for the
request;
(b) As much detailed information as possible about the
location or identification of any person or place that must be found or
identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts
underlying the request;
(d) The reasons for and details of any procedure or
requirement to be followed;
(e) Such information as may be required under the law
of the requested State in order to execute the request; and
(f) Any other information relevant in order for the
assistance sought to be provided.
3. Upon the request of the Court, a State Party
shall consult with the Court, either generally or with respect to a specific
matter, regarding any requirements under its national law that may apply under
paragraph 2 (e). During the consultations, the State Party shall advise the
Court of the specific requirements of its national law.
4. The provisions of this article shall, where
applicable, also apply in respect of a request for assistance made to the
Court.
Article
97
Consultations
Where a State Party receives a request under
this Part in relation to which it identifies problems which may impede or
prevent the execution of the request, that State shall consult with the Court
without delay in order to resolve the matter. Such problems may include, inter
alia:
(a) Insufficient information to execute the request;
(b) In the case of a request for surrender, the fact
that despite best efforts, the person sought cannot be located or that the
investigation conducted has determined that the person in the requested State
is clearly not the person named in the warrant; or
(c) The fact that execution of the request in its
current form would require the requested State to breach a pre‑existing
treaty obligation undertaken with respect to another State.
Article
98
Cooperation with
respect to waiver of immunity
and consent to
surrender
1. The Court may not proceed with a request for
surrender or assistance which would require the requested State to act
inconsistently with its obligations under international law with respect to the
State or diplomatic immunity of a person or property of a third State, unless
the Court can first obtain the cooperation of that third State for the waiver
of the immunity.
2. The Court may not proceed with a request for
surrender which would require the requested State to act inconsistently with
its obligations under international agreements pursuant to which the consent of
a sending State is required to surrender a person of that State to the Court,
unless the Court can first obtain the cooperation of the sending State for the
giving of consent for the surrender.
Article
99
Execution of
requests under articles 93 and 96
1. Requests for assistance shall be executed in
accordance with the relevant procedure under the law of the requested State
and, unless prohibited by such law, in the manner specified in the request,
including following any procedure outlined therein or permitting persons
specified in the request to be present at and assist in the execution process.
2. In the case of an urgent request, the documents
or evidence produced in response shall, at the request of the Court, be sent
urgently.
3. Replies from the requested State shall be
transmitted in their original language and form.
4. Without prejudice to other articles in this Part,
where it is necessary for the successful execution of a request which can be
executed without any compulsory measures, including specifically the interview
of or taking evidence from a person on a voluntary basis, including doing so
without the presence of the authorities of the requested State Party if it is
essential for the request to be executed, and the examination without modification
of a public site or other public place, the Prosecutor may execute such request
directly on the territory of a State as follows:
(a) When the State Party requested is a State on the
territory of which the crime is alleged to have been committed, and there has
been a determination of admissibility pursuant to article 18 or 19, the
Prosecutor may directly execute such request following all possible
consultations with the requested State Party;
(b) In other cases, the Prosecutor may execute such
request following consultations with the requested State Party and subject to
any reasonable conditions or concerns raised by that State Party. Where the
requested State Party identifies problems with the execution of a request
pursuant to this subparagraph it shall, without delay, consult with the Court
to resolve the matter.
5. Provisions allowing a person heard or examined by
the Court under article 72 to invoke restrictions designed to prevent
disclosure of confidential information connected with national security shall
also apply to the execution of requests for assistance under this article.
Article
100
Costs
1. The ordinary costs for execution of requests in
the territory of the requested State shall be borne by that State, except for
the following, which shall be borne by the Court:
(a) Costs associated with the travel and security of
witnesses and experts or the transfer under article 93 of persons in custody;
(b) Costs of translation, interpretation and
transcription;
(c) Travel and subsistence costs of the judges, the
Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar and
staff of any organ of the Court;
(d) Costs of any expert opinion or report requested by
the Court;
(e) Costs associated with the transport of a person
being surrendered to the Court by a custodial State; and
(f) Following consultations, any extraordinary costs
that may result from the execution of a request.
2. The provisions of paragraph 1 shall, as
appropriate, apply to requests from States Parties to the Court. In that case,
the Court shall bear the ordinary costs of execution.
Article
101
Rule of speciality
1. A person surrendered to the Court under this
Statute shall not be proceeded against, punished or detained for any conduct
committed prior to surrender, other than the conduct or course of conduct which
forms the basis of the crimes for which that person has been surrendered.
2. The Court may request a waiver of the
requirements of paragraph 1 from the State which surrendered the person to the
Court and, if necessary, the Court shall provide additional information in
accordance with article 91. States Parties shall have the authority to provide
a waiver to the Court and should endeavour to do so.
Article
102
Use of terms
For the purposes of this Statute:
(a) “surrender” means the delivering up
of a person by a State to the Court, pursuant to this Statute.
(b) “extradition” means the delivering up
of a person by one State to another as provided by treaty, convention or
national legislation.
PART
10. ENFORCEMENT
Article
103
Role of States in
enforcement of
sentences of
imprisonment
1. (a) A sentence of imprisonment shall be
served in a State designated by the Court from a list of States which have
indicated to the Court their willingness to accept sentenced persons.
(b) At the time of declaring its
willingness to accept sentenced persons, a State may attach conditions to its
acceptance as agreed by the Court and in accordance with this Part.
(c) A State designated in a particular
case shall promptly inform the Court whether it accepts the Court’s
designation.
2. (a) The State of enforcement shall notify
the Court of any circumstances, including the exercise of any conditions agreed
under paragraph 1, which could materially affect the terms or extent of the
imprisonment. The Court shall be given at least 45 days’ notice of any such
known or foreseeable circumstances. During this period, the State of
enforcement shall take no action that might prejudice its obligations under
article 110.
(b) Where the Court cannot agree to the
circumstances referred to in subparagraph (a), it shall notify the State
of enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a
designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties
should share the responsibility for enforcing sentences of imprisonment, in
accordance with principles of equitable distribution, as provided in the Rules
of Procedure and Evidence;
(b) The application of widely accepted
international treaty standards governing the treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced
person;
(e) Such other factors regarding the
circumstances of the crime or the person sentenced, or the effective
enforcement of the sentence, as may be appropriate in designating the State of
enforcement.
4. If no State is designated under paragraph 1, the
sentence of imprisonment shall be served in a prison facility made available by
the host State, in accordance with the conditions set out in the headquarters
agreement referred to in article 3, paragraph 2. In such a case, the costs
arising out of the enforcement of a sentence of imprisonment shall be borne by
the Court.
Article
104
Change in
designation of State of enforcement
1. The Court may, at any time, decide to transfer a
sentenced person to a prison of another State.
2. A sentenced person may, at any time, apply to the
Court to be transferred from the State of enforcement.
Article
105
Enforcement of the
sentence
1. Subject to conditions which a State may have
specified in accordance with article 103, paragraph 1 (b), the sentence of
imprisonment shall be binding on the States Parties, which shall in no case
modify it.
2. The Court alone shall have the right to decide
any application for appeal and revision. The State of enforcement shall not
impede the making of any such application by a sentenced person.
Article
106
Supervision of
enforcement of sentences and
conditions of
imprisonment
1. The enforcement of a sentence of imprisonment
shall be subject to the supervision of the Court and shall be consistent with
widely accepted international treaty standards governing treatment of
prisoners.
2. The conditions of imprisonment shall be governed
by the law of the State of enforcement and shall be consistent with widely
accepted international treaty standards governing treatment of prisoners; in no
case shall such conditions be more or less favourable than those available to
prisoners convicted of similar offences in the State of enforcement.
3. Communications between a sentenced person and the
Court shall be unimpeded and confidential.
Article
107
Transfer of the
person upon completion of sentence
1. Following completion of the sentence, a person
who is not a national of the State of enforcement may, in accordance with the
law of the State of enforcement, be transferred to a State which is obliged to
receive him or her, or to another State which agrees to receive him or her,
taking into account any wishes of the person to be transferred to that State,
unless the State of enforcement authorizes the person to remain in its
territory.
2. If no State bears the costs arising out of
transferring the person to another State pursuant to paragraph 1, such costs
shall be borne by the Court.
3. Subject to the provisions of article 108, the
State of enforcement may also, in accordance with its national law, extradite
or otherwise surrender the person to a State which has requested the
extradition or surrender of the person for purposes of trial or enforcement of
a sentence.
Article
108
Limitation on the
prosecution or punishment of other offences
1. A sentenced person in the custody of the State of
enforcement shall not be subject to prosecution or punishment or to extradition
to a third State for any conduct engaged in prior to that person’s delivery to
the State of enforcement, unless such prosecution, punishment or extradition
has been approved by the Court at the request of the State of enforcement.
2. The Court shall decide the matter after having
heard the views of the sentenced person.
3. Paragraph 1 shall cease to apply if the sentenced
person remains voluntarily for more than 30 days in the territory of the State
of enforcement after having served the full sentence imposed by the Court, or
returns to the territory of that State after having left it.
Article
109
Enforcement of
fines and forfeiture measures
1. States Parties shall give effect to fines or
forfeitures ordered by the Court under Part 7, without prejudice to the
rights of bona fide third parties, and in accordance with the procedure of
their national law.
2. If a State Party is unable to give effect to an
order for forfeiture, it shall take measures to recover the value of the
proceeds, property or assets ordered by the Court to be forfeited, without
prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real
property or, where appropriate, the sale of other property, which is obtained
by a State Party as a result of its enforcement of a judgement of the Court
shall be transferred to the Court.
Article
110
Review by the
Court concerning reduction of sentence
1. The State of enforcement shall not release the
person before expiry of the sentence pronounced by the Court.
2. The Court alone shall have the right to decide
any reduction of sentence, and shall rule on the matter after having heard the
person.
3. When the person has served two thirds of the
sentence, or 25 years in the case of life imprisonment, the Court shall review
the sentence to determine whether it should be reduced. Such a review shall not
be conducted before that time.
4. In its review under paragraph 3, the Court may
reduce the sentence if it finds that one or more of the following factors are
present:
(a) The early and continuing willingness of the person
to cooperate with the Court in its investigations and prosecutions;
(b) The voluntary assistance of the person in enabling
the enforcement of the judgements and orders of the Court in other cases, and
in particular providing assistance in locating assets subject to orders of
fine, forfeiture or reparation which may be used for the benefit of victims; or
(c) Other factors establishing a clear and significant
change of circumstances sufficient to justify the reduction of sentence, as
provided in the Rules of Procedure and Evidence.
5. If the Court determines in its initial review
under paragraph 3 that it is not appropriate to reduce the sentence, it shall
thereafter review the question of reduction of sentence at such intervals and
applying such criteria as provided for in the Rules of Procedure and Evidence.
Article
111
Escape
If a convicted person escapes from custody and
flees the State of enforcement, that State may, after consultation with the
Court, request the person’s surrender from the State in which the person is
located pursuant to existing bilateral or multilateral arrangements, or may
request that the Court seek the person’s surrender, in accordance with
Part 9. It may direct that the person be delivered to the State in which
he or she was serving the sentence or to another State designated by the Court.
PART
11. ASSEMBLY OF STATES PARTIES
Article
112
Assembly of States
Parties
1. An Assembly of States Parties to this Statute is
hereby established. Each State Party shall have one representative in the
Assembly who may be accompanied by alternates and advisers. Other States which
have signed this Statute or the Final Act may be observers in the Assembly.
2. The Assembly shall:
(a) Consider and adopt, as appropriate, recommendations
of the Preparatory Commission;
(b) Provide management oversight to the Presidency, the
Prosecutor and the Registrar regarding the administration of the Court;
(c) Consider the reports and activities of the Bureau
established under paragraph 3 and take appropriate action in regard thereto;
(d) Consider and decide the budget for the Court;
(e) Decide whether to alter, in accordance with article
36, the number of judges;
(f) Consider pursuant to article 87, paragraphs 5 and
7, any question relating to non‑cooperation;
(g) Perform any other function consistent with this
Statute or the Rules of Procedure and Evidence.
3. (a) The Assembly shall have a Bureau
consisting of a President, two Vice‑Presidents and 18 members elected by
the Assembly for three‑year terms.
(b) The Bureau shall have a
representative character, taking into account, in particular, equitable
geographical distribution and the adequate representation of the principal
legal systems of the world.
(c) The Bureau shall meet as often as
necessary, but at least once a year. It shall assist the Assembly in the
discharge of its responsibilities.
4. The Assembly may establish such subsidiary bodies
as may be necessary, including an independent oversight mechanism for
inspection, evaluation and investigation of the Court, in order to enhance its
efficiency and economy.
5. The President of the Court, the Prosecutor and
the Registrar or their representatives may participate, as appropriate, in
meetings of the Assembly and of the Bureau.
6. The Assembly shall meet at the seat of the Court
or at the Headquarters of the United Nations once a year and, when
circumstances so require, hold special sessions. Except as otherwise specified
in this Statute, special sessions shall be convened by the Bureau on its own
initiative or at the request of one third of the States Parties.
7. Each State Party shall have one vote. Every
effort shall be made to reach decisions by consensus in the Assembly and in the
Bureau. If consensus cannot be reached, except as otherwise provided in the
Statute:
(a) Decisions on matters of substance must be approved
by a two‑thirds majority of those present and voting provided that an
absolute majority of States Parties constitutes the quorum for voting;
(b) Decisions on matters of procedure shall be taken by
a simple majority of States Parties present and voting.
8. A State Party which is in arrears in the payment
of its financial contributions towards the costs of the Court shall have no
vote in the Assembly and in the Bureau if the amount of its arrears equals or
exceeds the amount of the contributions due from it for the preceding two full
years. The Assembly may, nevertheless, permit such a State Party to vote in the
Assembly and in the Bureau if it is satisfied that the failure to pay is due to
conditions beyond the control of the State Party.
9. The Assembly shall adopt its own rules of
procedure.
10. The official and working languages of the
Assembly shall be those of the General Assembly of the United Nations.
PART
12. FINANCING
Article
113
Financial
Regulations
Except as otherwise specifically provided, all
financial matters related to the Court and the meetings of the Assembly of
States Parties, including its Bureau and subsidiary bodies, shall be governed
by this Statute and the Financial Regulations and Rules adopted by the Assembly
of States Parties.
Article
114
Payment of
expenses
Expenses of the Court and the Assembly of States
Parties, including its Bureau and subsidiary bodies, shall be paid from the
funds of the Court.
Article
115
Funds of the Court
and of the Assembly of States Parties
The expenses of the Court and the Assembly of
States Parties, including its Bureau and subsidiary bodies, as provided for in
the budget decided by the Assembly of States Parties, shall be provided by the
following sources:
(a) Assessed contributions made by States Parties;
(b) Funds provided by the United Nations, subject to
the approval of the General Assembly, in particular in relation to the expenses
incurred due to referrals by the Security Council.
Article
116
Voluntary
contributions
Without prejudice to article 115, the Court may
receive and utilize, as additional funds, voluntary contributions from
Governments, international organizations, individuals, corporations and other
entities, in accordance with relevant criteria adopted by the Assembly of
States Parties.
Article
117
Assessment of
contributions
The contributions of States Parties shall be
assessed in accordance with an agreed scale of assessment, based on the scale
adopted by the United Nations for its regular budget and adjusted in accordance
with the principles on which that scale is based.
Article
118
Annual audit
The records, books and accounts of the Court,
including its annual financial statements, shall be audited annually by an
independent auditor.
PART
13. FINAL CLAUSES
Article
119
Settlement of
disputes
1. Any dispute concerning the judicial functions of
the Court shall be settled by the decision of the Court.
2. Any other dispute between two or more States
Parties relating to the interpretation or application of this Statute which is
not settled through negotiations within three months of their commencement
shall be referred to the Assembly of States Parties. The Assembly may itself
seek to settle the dispute or may make recommendations on further means of
settlement of the dispute, including referral to the International Court of Justice
in conformity with the Statute of that Court.
Article
120
Reservations
No reservations may be made to this Statute.
Article
121
Amendments
1. After the expiry of seven years from the entry
into force of this Statute, any State Party may propose amendments thereto. The
text of any proposed amendment shall be submitted to the Secretary‑General
of the United Nations, who shall promptly circulate it to all States Parties.
2. No sooner than three months from the date of
notification, the Assembly of States Parties, at its next meeting, shall, by a
majority of those present and voting, decide whether to take up the proposal.
The Assembly may deal with the proposal directly or convene a Review Conference
if the issue involved so warrants.
3. The adoption of an amendment at a meeting of the
Assembly of States Parties or at a Review Conference on which consensus cannot
be reached shall require a two‑thirds majority of States Parties.
4. Except as provided in paragraph 5, an amendment
shall enter into force for all States Parties one year after instruments of
ratification or acceptance have been deposited with the Secretary‑General
of the United Nations by seven‑eighths of them.
5. Any amendment to articles 5, 6, 7 and 8 of this
Statute shall enter into force for those States Parties which have accepted the
amendment one year after the deposit of their instruments of ratification or
acceptance. In respect of a State Party which has not accepted the amendment,
the Court shall not exercise its jurisdiction regarding a crime covered by the
amendment when committed by that State Party’s nationals or on its territory.
6. If an amendment has been accepted by seven‑eighths
of States Parties in accordance with paragraph 4, any State Party which has not
accepted the amendment may withdraw from this Statute with immediate effect,
notwithstanding article 127, paragraph 1, but subject to article 127, paragraph
2, by giving notice no later than one year after the entry into force of such
amendment.
7. The Secretary‑General of the United Nations
shall circulate to all States Parties any amendment adopted at a meeting of the
Assembly of States Parties or at a Review Conference.
Article
122
Amendments to
provisions of an institutional nature
1. Amendments to provisions of this Statute which
are of an exclusively institutional nature, namely, article 35, article 36,
paragraphs 8 and 9, article 37, article 38, article 39, paragraphs 1 (first two
sentences), 2 and 4, article 42, paragraphs 4 to 9, article 43, paragraphs 2 and
3, and articles 44, 46, 47 and 49, may be proposed at any time, notwithstanding
article 121, paragraph 1, by any State Party. The text of any proposed
amendment shall be submitted to the Secretary‑General of the United
Nations or such other person designated by the Assembly of States Parties who
shall promptly circulate it to all States Parties and to others participating
in the Assembly.
2 Amendments under this article on which consensus
cannot be reached shall be adopted by the Assembly of States Parties or by a
Review Conference, by a two‑thirds majority of States Parties. Such
amendments shall enter into force for all States Parties six months after their
adoption by the Assembly or, as the case may be, by the Conference.
Article
123
Review of the Statute
1. Seven years after the entry into force of this
Statute the Secretary‑General of the United Nations shall convene a
Review Conference to consider any amendments to this Statute. Such review may
include, but is not limited to, the list of crimes contained in article 5. The
Conference shall be open to those participating in the Assembly of States
Parties and on the same conditions.
2. At any time thereafter, at the request of a State
Party and for the purposes set out in paragraph 1, the Secretary‑General
of the United Nations shall, upon approval by a majority of States Parties,
convene a Review Conference.
3. The provisions of article 121, paragraphs 3 to 7,
shall apply to the adoption and entry into force of any amendment to the
Statute considered at a Review Conference.
Article
124
Transitional
Provision
Notwithstanding article 12, paragraphs 1 and 2,
a State, on becoming a party to this Statute, may declare that, for a period of
seven years after the entry into force of this Statute for the State concerned,
it does not accept the jurisdiction of the Court with respect to the category
of crimes referred to in article 8 when a crime is alleged to have been
committed by its nationals or on its territory. A declaration under this
article may be withdrawn at any time. The provisions of this article shall be
reviewed at the Review Conference convened in accordance with article 123,
paragraph 1.
Article
125
Signature,
ratification, acceptance, approval or accession
1. This Statute shall be open for signature by all
States in Rome, at the headquarters of the Food and Agriculture Organization of
the United Nations, on 17 July 1998. Thereafter, it shall remain open for
signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain open for signature in New
York, at United Nations Headquarters, until 31 December 2000.
2. This Statute is subject to ratification,
acceptance or approval by signatory States. Instruments of ratification,
acceptance or approval shall be deposited with the Secretary‑General of
the United Nations.
3. This Statute shall be open to accession by all
States. Instruments of accession shall be deposited with the Secretary‑General
of the United Nations.
Article
126
Entry into force
1. This Statute shall enter into force on the first
day of the month after the 60th day following the date of the deposit of the
60th instrument of ratification, acceptance, approval or accession with the
Secretary‑General of the United Nations.
2. For each State ratifying, accepting, approving or
acceding to this Statute after the deposit of the 60th instrument of
ratification, acceptance, approval or accession, the Statute shall enter into
force on the first day of the month after the 60th day following the deposit by
such State of its instrument of ratification, acceptance, approval or
accession.
Article
127
Withdrawal
1. A State Party may, by written notification
addressed to the Secretary‑General of the United Nations, withdraw from
this Statute. The withdrawal shall take effect one year after the date of
receipt of the notification, unless the notification specifies a later date.
2. A State shall not be discharged, by reason of its
withdrawal, from the obligations arising from this Statute while it was a Party
to the Statute, including any financial obligations which may have accrued. Its
withdrawal shall not affect any cooperation with the Court in connection with
criminal investigations and proceedings in relation to which the withdrawing
State had a duty to cooperate and which were commenced prior to the date on
which the withdrawal became effective, nor shall it prejudice in any way the
continued consideration of any matter which was already under consideration by
the Court prior to the date on which the withdrawal became effective.
Article
128
Authentic texts
The original of this Statute, of which the
Arabic, Chinese, English, French, Russian and Spanish texts are equally
authentic, shall be deposited with the Secretary‑General of the United
Nations, who shall send certified copies thereof to all States.
IN WITNESS WHEREOF, the undersigned, being duly
authorized thereto by their respective Governments, have signed this Statute.
DONE at Rome, this 17th day of July 1998.
[Minister’s second reading speech made in—
House of Representatives on 25 June 2002
Senate on 26 June 2002]
(157/02)