International Criminal Court Bill 2002
First Reading
International Criminal Court Bill 2002
First Reading
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2002
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
International Criminal Court Bill 2002
No. , 2002
(Attorney-General)
A Bill for an Act to facilitate compliance by Australia with obligations
under the Rome Statute of the International Criminal Court, and for related
purposes
Contents
Part 1--Preliminary 1
1 Short title 1
2 Commencement 2
3 Principal object of Act 3
4 Definitions 3
5 Act to bind Crown 11
6 External Territories 11
Part 2--General provisions relating to requests by the ICC for
cooperation 12
7 What constitutes a request for cooperation 12
8 How requests for cooperation are to be made 13
9 Urgent requests for cooperation and requests for
provisional arrest 13
10 Execution of requests 14
11 Consultations with ICC 14
12 Request that may raise problems relating to
Australia's international obligations to a foreign country 15
13 Confidentiality of request 15
14 Response to be sent to ICC 16
15 Attorney-General must take into account ICC's
ability to refer matter to Assembly of States Parties or Security Council 16
Part 3--Requests by the ICC for arrest and surrender of
persons 17
Division 1--Preliminary 17
16 Application of Part 17
Division 2--Documentation to accompany request
18
17 Documentation for request for arrest and surrender
of person for whom warrant of arrest has been issued 18
18 Documentation for request for arrest and surrender
of person already convicted 18
19 Documentation for request for provisional arrest
19
Division 3--Arrest of persons 20
20 Arrest following request for arrest and surrender
20
21 Arrest following request for provisional arrest
20
22 Certificate by Attorney-General 21
23 Remand 21
24 Procedure following application for bail 22
25 Release from remand on the Attorney-General's
direction 23
26 Release from remand after certain periods 23
27 Application for search warrants 24
Division 4--Surrender of persons
26
28 Surrender warrants 26
29 Certificate by Attorney-General 26
30 Surrender warrant may take effect at later date
26
31 Refusal of surrender 27
32 Postponement of execution of request for surrender
27
33 Previous proceedings against person sought 28
34 Ongoing Australian investigation or prosecution
involving different conduct 29
35 Person being investigated or prosecuted in
Australia for same conduct 29
36 Challenges to admissibility in other cases 30
37 Request from ICC and a foreign country relating to
same conduct 30
38 Procedure where competing request relating to same
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conduct from a foreign country that is a party to the Statute 31
39 Procedure where competing request relating to same
conduct from a foreign country that is not a party to the Statute 31
40 Request from ICC and foreign country relating to
different conduct 33
41 Notification of decision on extradition to foreign
country 33
42 Detention following surrender warrants 33
43 Content of surrender warrants 34
44 Execution of surrender warrants 34
45 Release from remand 34
46 Effect of surrender to ICC on person's terms of
imprisonment 35
47 Expiry of Australian sentences while under ICC
detention 36
48 Waiver of rule of speciality 36
Part 4--Other requests by ICC 37
Division 1--Preliminary 37
49 Application of Part 37
Division 2--Documentation to accompany request
38
50 Documentation for request 38
Division 3--Restrictions on provision of assistance
39
51 Refusal of assistance 39
52 Postponement of execution of request 39
53 Procedure if assistance precluded under Australian
law 40
54 Postponement where ongoing Australian
investigation or prosecution would be interfered with 40
55 Postponement where admissibility challenge 41
56 Competing requests 41
57 Request from ICC and a foreign country relating to
same conduct 42
58 Procedure where competing request relating to same
conduct from a foreign country that is a party to the Statute 42
59 Procedure where competing request relating to same
conduct from a foreign country that is not a party to the Statute 43
60 Request from ICC and foreign country relating to
different conduct 44
61 Notification to ICC of decision refusing request
by foreign country 44
62 Requests involving competing international
obligations 45
Division 4--Identifying or locating persons or things
46
63 Assistance in identifying or locating persons or
things 46
Division 5--Taking evidence or producing documents or
articles 47
64 Attorney-General may authorise taking of evidence
or the production of documents or articles 47
65 Taking of evidence 47
66 Producing documents or other articles 48
67 Legal representation 48
68 Form of certificates 49
69 Compellability of persons to attend etc. 49
Division 6--Questioning of person being investigated or
prosecuted 51
70 Assistance in questioning persons 51
71 Procedure where person questioned 52
Division 7--Service of documents
53
72 Assistance in arranging service of documents 53
Division 8--Facilitating the voluntary appearance of persons (other
than prisoners) as witnesses or experts before the ICC
55
73 Persons (other than prisoners) assisting
investigation or giving evidence 55
Division 9--Temporary transfer of prisoners to the ICC
56
74 Prisoners assisting investigation or giving
evidence 56
75 Effect of removal to foreign country on prisoners'
terms of imprisonment 58
Division 10--Examination of places or sites
59
76 Assistance in examining places or sites 59
Division 11--Search and seizure
60
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77 Attorney-General may authorise applications for
search warrants 60
78 Applications for search warrants 60
Division 12--Provision of records or documents
62
79 Facilitating the provision of records or documents
62
Division 13--Protecting victims and witnesses and preserving
evidence 63
80 Protecting victims and witnesses and preserving
evidence 63
Division 14--Identification, tracing, and freezing or seizure, of
proceeds of crimes within the jurisdiction of the ICC
64
Subdivision A--Preliminary 64
81 Application of Division 64
Subdivision B--Restraining orders 64
82 Applying for and making restraining orders 64
83 Excluding property from restraining orders 65
84 When restraining order ceases to be in force 66
Subdivision C--Production orders relating to crimes within the jurisdiction
of the ICC 67
85 Requests for production orders 67
86 Applying for and making production orders 67
87 Retaining produced documents 68
Subdivision D--Notices to financial institutions
68
88 Giving notices to financial institutions 68
89 Contents of notices to financial institutions 69
90 Protection from suits etc. for those complying
with notices 70
91 Making false statements in applications 70
92 Disclosing existence or nature of notice 70
93 Failing to comply with a notice 71
Subdivision E--Monitoring orders relating to crimes within the jurisdiction
of the ICC 71
94 Requests for monitoring orders 71
95 Applying for and making monitoring orders 72
96 Passing on information given under monitoring
orders 72
Subdivision F--Search warrants relating to proceeds of crime and
property-tracking documents 72
97 Requests for search warrants 72
98 Applying for and issuing search warrants 73
99 Seizure of other property and documents 74
100 Return of seized property to third parties 74
101 Dealing with seized property (other than
property-tracking documents) 75
102 Dealing with seized property-tracking documents
77
Division 15--Other types of assistance
78
103 Other types of assistance 78
Division 16--Miscellaneous 79
104 Effect of authorisation to execute request 79
105 Request may relate to assistance sought by
defence 79
106 Prosecutor may execute request 79
Part 5--Investigations or sittings of the ICC in Australia
80
107 Prosecutor may conduct investigations in
Australia 80
108 ICC sittings in Australia 80
109 ICC's powers while sitting in Australia 80
110 ICC may require witnesses at sittings in
Australia to give undertakings as to truthfulness of their evidence 80
Part 6--Search, seizure and powers of arrest
81
Division 1--Search warrants 81
111 When search warrants can be issued 81
112 Content of warrants 82
113 The things authorised by a search warrant in
relation to premises 84
114 The things authorised by a search warrant in
relation to a person 85
115 Restrictions on personal searches 86
116 Warrants may be issued by telephone etc. 86
117 Formalities relating to warrants issued by
telephone etc. 87
Division 2--Provisions relating to execution of search
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warrants
88
118 Availability of assistance and use of force in
executing a warrant 88
119 Copy of warrant to be shown to occupier etc. 88
120 Specific powers available to officers executing
warrants 89
121 Use of equipment to examine or process things
89
122 Use of electronic equipment at premises 90
123 Compensation for damage to electronic equipment
92
124 Copies of seized things to be provided 93
125 Occupier entitled to be present during search
93
126 Receipts for things seized under warrant 94
Division 3--Stopping and searching conveyances
95
127 Searches without warrant in emergency situations
95
128 How a police officer exercises a power to search
without warrant 95
Division 4--Arrest and related matters
97
129 Power to enter premises to arrest person 97
130 Use of force in making arrest 97
131 Persons to be informed of grounds of arrest 98
132 Power to conduct a frisk search of an arrested
person 99
133 Power to conduct an ordinary search of an
arrested person 99
134 Power to conduct search of arrested person's
premises 99
135 Power to conduct an ordinary search or strip
search 99
136 Rules for conduct of strip search 101
Division 5--General 103
137 Conduct of ordinary searches and frisk searches
103
138 Announcement before entry 103
139 Offences relating to telephone warrants 103
140 Retention of things seized 104
141 Magistrate may permit a thing to be retained
105
Part 7--Information provided in confidence by third party
106
142 Disclosure of information provided in confidence
by third party 106
143 Request for Australia's consent to disclosure
106
Part 8--Protection of Australia's national security interests
108
144 How national security issues are to be dealt with
108
145 Request for cooperation involving national
security 108
146 Request to disclose information or documents
involving national security 108
147 Other situations involving national security
109
148 Consultation with ICC required 109
149 Procedure where no resolution 109
Part 9--Transportation of persons in custody through
Australia 111
150 Transportation of persons in custody through
Australia 111
Part 10--Enforcement in Australia of reparation orders made and fines
imposed by ICC 113
151 Assistance with enforcement of orders for
reparation to victims 113
152 Assistance with enforcement of orders imposing
fines 113
153 Registration of order 114
154 Effect of order 114
Part 11--Forfeiture of proceeds of international crimes
115
155 Requests for enforcement of forfeiture orders
115
156 Registration of order 115
157 Effect of order 116
158 Effect on third parties of registration of
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forfeiture order 117
159 Forfeiture may be treated as pecuniary penalty
order 119
Part 12--Enforcement in Australia of sentences imposed by ICC
120
Division 1--Preliminary 120
160 Australia may agree to act as State of
enforcement 120
161 Withdrawal of agreement to act as State of
enforcement 121
162 Designation of Australia as place for service of
sentence 121
163 Governmental consent to acceptance of designation
121
164 Acceptance of designation 122
Division 2--Transfer to Australia of ICC prisoners
124
165 Issue of warrant for transfer to Australia 124
166 Warrants for transfer to Australia 124
167 Cancellation of warrant 125
Division 3--Enforcement of sentences
127
168 Sentence enforcement in Australia 127
169 Duration and nature of enforced sentence 127
170 Directions about enforcement of sentence 127
171 No appeal or review of sentence of imprisonment
imposed by ICC or of sentence enforcement decisions of Attorney-General 128
172 ICC prisoner transferred to Australia to be
regarded as a federal prisoner 128
173 Other matters relating to ICC prisoners 130
174 Pardon, amnesty or commutation of sentences of
imprisonment imposed on ICC prisoners transferred to Australia 130
175 ICC prisoner may apply to be transferred from
Australia to a foreign country 131
176 How ICC prisoner is to be transferred 131
177 Special rules in certain cases 131
178 Extradition of escaped ICC prisoner 132
Part 13--Requests by Australia to ICC
134
179 Application of Part 134
180 Request by Attorney-General 134
Part 14--Miscellaneous 135
181 Attorney-General's decisions in relation to
certificates to be final 135
182 Arrest of persons escaping from custody or
contravening conditions of recognisances 136
183 Aiding persons to escape etc. 136
184 Cost of execution of requests 136
185 Legal assistance 137
186 Arrangements with States 137
187 Delegation 138
188 Regulations 138
189 Annual report 138
Schedule 1--Rome Statute of the International Criminal Court
139
A Bill for an Act to facilitate compliance by Australia with obligations
under the Rome Statute of the International Criminal Court, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the
International Criminal
Court Act 2002.
(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.
| Commencement
information
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|
| Column
1
|
Column
2
|
Column
3
|
| Provision(s)
|
Commencement
|
Date/Details
|
| 1.
Part 1 and anything in this Act not elsewhere covered by this table
|
The
day after this Act receives the Royal Assent
|
|
| 2.
Parts 2 to 14
|
A
single day to be fixed by Proclamation, subject to subsections (3) to (6)
|
|
| 3.
Schedule 1
|
The
day after this Act receives the Royal Assent
|
|
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.
(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.
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
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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,
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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
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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.
This Act binds the Crown in right of the Commonwealth and
in right of each of the States.
This Act extends to each external Territory.
(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.
(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
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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.
(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.
(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).
(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.
(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.
(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.
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(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.
(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.
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.
This Part applies to a request for arrest and surrender,
or a request for provisional arrest, of a person.
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.
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
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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.
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.
(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.
(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.
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.
(1) If a person is arrested under a warrant issued under
section 20 or 21, the person executing the warrant must, as soon as
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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.
(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.
(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.
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(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.
(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.
(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.
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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.
(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.
(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.
(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.
(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
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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.
(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).
(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.
(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.
If a request for surrender of a person is made and a
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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.
(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.
(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.
(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
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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.
(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.
(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.
(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.
Subject to this Division, a surrender warrant must be
executed according to its terms.
(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
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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.
(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.
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.
(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.
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.
(1) A request for cooperation (other than a request to
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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.
(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.
(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.
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
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(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.
(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.
(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.
(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.
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.
(1) This section applies if:
(a) section 57 applies; and
(b) the foreign country is a party to the Statute.
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(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.
(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.
(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.
(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
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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.
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.
(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.
(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.
(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
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(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.
(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.
(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.
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).
(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.
(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.
(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.
(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
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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.
(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.
(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:
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(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.
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).
(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.
(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
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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.
(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.
(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.
(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
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(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.
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.
(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.
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.
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(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.
(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.
(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.
(1) An authorised officer who takes possession of a
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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.
(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.
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).
(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
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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.
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.
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.
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.
(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.
(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
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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.
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.
(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.
(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.
(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.
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(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.
(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.
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,
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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.
(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.
(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.
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.
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.
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(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.
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.
(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.
While the ICC is sitting in Australia, it may exercise its
functions and powers as provided under the Statute and the Rules.
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.
(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
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(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.
(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:
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(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.
(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.
(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.
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(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.
A warrant cannot authorise a strip search or a search of a
person's body cavities.
(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.
(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.
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;
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as is necessary and reasonable in the circumstances.
(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.
(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.
(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.
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(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.
(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
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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.
(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.
(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.
(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.
(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
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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.
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.
(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.
(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.
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(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.
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.
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.
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.
(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
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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.
(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.
(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
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this Part.
(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.
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.
(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.
(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
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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.
(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.
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.
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.
(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.
(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.
(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.
The Attorney-General must consult with the ICC and, if
appropriate, the defence, in accordance with paragraph 5 of article 72 of the
Statute.
(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.
(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
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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.
(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.
(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.
(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
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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.
(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.
´
(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.
(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.
(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
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(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.
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.
(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:
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(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.
(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).
(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.
(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
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(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.
(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)).
(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.
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.
(1) A warrant for the transfer of an ICC prisoner to
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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.
(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.
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.
(1) The sentence of imprisonment to be enforced must not be
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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.
(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.
(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.
(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;
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(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.
(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.
(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.
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.
(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
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(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.
(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.
(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).
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.
(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,
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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.
(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.
(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.
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.
The Commonwealth is liable to pay any costs incurred in
connection with dealing with a request for cooperation other than costs that,
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under article 100 of the Statute, are to be borne by the ICC.
(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.
(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.
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.
(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.
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.
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.
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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
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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,
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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
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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.
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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.
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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.
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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
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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.
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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
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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
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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
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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.
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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
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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
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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;
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(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:
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(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
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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
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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
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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.
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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
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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
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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
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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
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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
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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;
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(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
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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).
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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
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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
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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
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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
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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
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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.
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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
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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,
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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
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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
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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
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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.
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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.
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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.
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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.