Part IV—Arrangements for persons to give evidence or assist investigations
Division 1—Requests by Australia
16 Requests for removal of certain persons to Australia
(1) Where:
(a) a proceeding relating to a criminal matter has commenced in Australia; and
(b) a person who is in a foreign country:
(i) is a foreign prisoner;
(ii) is capable of giving evidence relevant to the proceeding; and
(iii) has given his or her consent to being removed to Australia for the purpose of giving evidence in the proceeding;
Australia may request the foreign country to authorise the attendance of the person at a hearing in connection with the proceeding.
(2) Where:
(a) an investigation relating to a criminal matter has commenced in Australia; and
(b) a person who is in a foreign country:
(i) is a foreign prisoner;
(ii) is capable of giving assistance in relation to the investigation; and
(iii) has given his or her consent to being removed to Australia for the purposes of giving assistance in relation to the investigation;
Australia may request the foreign country to authorise the removal of the person to Australia for the purpose of giving assistance in relation to the investigation.
(3) If a request is made under subsection (1) or (2), the Attorney General may make arrangements with an appropriate authority of the foreign country for the purposes of:
(a) the removal of the person to Australia;
(b) the custody of the person while in Australia;
(c) the return of the person to the foreign country; and
(d) other relevant matters.
Part IV—Arrangements for persons to give evidence or assist investigations
Division 1—Requests by Australia
18 Custody of certain persons
Where:
(a) a person is to be brought to Australia from a foreign country pursuant to a request under section 16; and
(b) the foreign country requests that the person be kept in custody while he or she is in Australia;
the person shall, while the person is in Australia or travelling to or from Australia pursuant to the request, be kept in such custody as the Attorney General directs in writing.
Part IV—Arrangements for persons to give evidence or assist investigations
Division 2—Requests by foreign countries
26 Requests for giving of evidence at hearings in foreign countries
(1) Where:
(a) a proceeding relating to a criminal matter has commenced in a foreign country;
(b) the foreign country requests the attendance at a hearing in connection with the proceeding of a federal prisoner or a State prisoner who is in Australia (whether or not in custody);
(c) there are reasonable grounds to believe that the prisoner is capable of giving evidence relevant to the proceeding; and
(d) the Attorney General is satisfied that:
(i) the prisoner has consented to giving evidence in the foreign country; and
(ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3);
the Attorney General may, in his or her discretion:
(e) in a case where the prisoner is being held in custody:
(i) if the prisoner is a federal prisoner and is not also a State prisoner—direct that the prisoner be released from prison for the purpose of travelling to the foreign country to give evidence at the proceeding;
(ii) if the prisoner is a federal prisoner and also a State prisoner—direct, 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 travelling to the foreign country to give evidence at the proceeding; and
(iii) in any case, subject to the making or giving of any necessary directions or approvals in relation to the release of the prisoner—make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney General for the purpose; or
(f) in a case where the prisoner, having been released from custody on a parole or other order or licence to be at large, is not being held in custody:
(i) if the prisoner is a federal prisoner and is not also a State prisoner—approve the travel of the prisoner to the foreign country to give evidence at the proceeding and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large as may be required;
(ii) if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any approvals, authorities or permissions required to be obtained from an authority of the relevant State and the making of any necessary variations to the parole or other order or licence to be at large, approve the travel of the prisoner to the foreign country to give evidence at the proceeding and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large made or granted, as the case may be, under a law of the Commonwealth or of a Territory as may be required; and
(iii) in any case, subject to the obtaining of any necessary approvals, authorities, permissions or variations of the parole or other order or licence to be at large—make arrangements for the travel of the prisoner to the foreign country.
(2) Where:
(a) a proceeding relating to a criminal matter has commenced in a foreign country;
(b) the foreign country requests the attendance at a hearing in connection with the proceeding of a person (not being a federal prisoner or a State prisoner) who is in Australia;
(c) there are reasonable grounds to believe that the person is capable of giving evidence relevant to the proceeding; and
(d) the Attorney General is satisfied that:
(i) the person has consented to giving evidence in the foreign country; and
(ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3);
the Attorney General may, in his or her discretion, make arrangements for the travel of the person to the foreign country.
(3) The matters in relation to which undertakings are to be given by a foreign country for the purpose of a request that a person give evidence in the foreign country are:
(a) that the person shall not:
(i) be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person’s departure from Australia;
(ii) be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person’s departure from Australia, being a civil suit to which the person could not be subjected if the person were not in the foreign country; or
(iii) be required to give evidence in any proceeding in the foreign country other than the proceeding to which the request relates;
unless:
(iv) the person has left the foreign country; or
(v) the person has had the opportunity of leaving the foreign country and has remained in that country otherwise than for the purpose of giving evidence in the proceeding to which the request relates;
(b) that any evidence given by the person in the proceeding to which the request relates will be inadmissible or otherwise disqualified from use in the prosecution of the person for an offence against a law of the foreign country other than the offence of perjury in relation to the giving of that evidence;
(c) that the person will be returned to Australia in accordance with arrangements agreed by the Attorney General;
(d) in a case where the person is being held in custody in Australia and the Attorney General requests the foreign country to make arrangements for the keeping of the person in custody while the person is in the foreign country:
(i) the making of appropriate arrangements for that purpose;
(ii) that the person will not be released from custody in the foreign country unless the Attorney General notifies an appropriate authority of the foreign country that the person is entitled to be released from custody under Australian law; and
(iii) if the person is released in the foreign country as mentioned in subparagraph (ii)—that the person’s accommodation and expenses pending the completion of the proceeding to which the request relates will be paid for by the foreign country; and
(e) such other matters (if any) as the Attorney General thinks appropriate.
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:
(f) The temporary transfer of persons as provided in paragraph 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.
(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.
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.
1. Following completion of the sentence, a person who is not a national of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory.
2. If no State bears the costs arising out of transferring the person to another State pursuant to paragraph 1, such costs shall be borne by the Court.
3. Subject to the provisions of article 108, the State of enforcement may also, in accordance with its national law, extradite or otherwise surrender the person to a State which has requested the extradition or surrender of the person for purposes of trial or enforcement of a sentence.