PART 2 - INTERNATIONAL CRIMES AND OFFENCES AGAINST ADMINISTRATION OF JUSTICE
Consent to prosecutions for international crimes
13.
Attorney-General's consent to prosecutions required—
(1)Proceedings for an offence against section 9 or section 10 or section 11 may not be instituted in any New Zealand court without the consent of the Attorney-General.
(2)Despite subsection (1), a person charged with an offence against section 9 or section 10 or section 11 may be arrested, or a warrant for his or her arrest may be issued and executed, and the person may be remanded in custody or on bail, even though the consent of the Attorney-General to the institution of a prosecution for the offence has not been obtained, but no further proceedings can be taken until that consent has been obtained.
PART 2 - INTERNATIONAL CRIMES AND OFFENCES AGAINST ADMINISTRATION OF JUSTICE
Consent to prosecutions for offences against administration of justice
22.
Attorney-General's consent to prosecutions required—
(2)Despite subsection (1), a person charged with an offence against any of sections 15 to 21 may be arrested, or a warrant for his or her arrest may be issued and executed, and the person may be remanded in custody or on bail, even though the consent of the Attorney-General to the institution of a prosecution for the offence has not been obtained, but no further proceedings can be taken until that consent has been obtained.
PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Provisional arrest in urgent cases
36 Provisional arrest warrant may be issued
(1) A District Court Judge may issue a provisional warrant in the prescribed form for the arrest of a person if the Judge is satisfied on the basis of the information presented to him or her that—
(a) a warrant for the arrest of a person has been issued by the ICC or, in the case of a convicted person, a judgment of conviction has been given in relation to an international crime; and
(b) the person named in the warrant or judgment is or is suspected of being in New Zealand or may come to New Zealand; and
(c) it is necessary or desirable for an arrest warrant to be issued urgently.
(2) A warrant may be issued under this section even though no request for surrender has yet been made or received from the ICC.
Compare: 1999 No 55 s 20; Statute art 92
37 Notice to be given to Minister
(1) If a District Court Judge issues a provisional arrest warrant under section 36, the applicant for the warrant must report the issue of the warrant to the Minister without delay.
(2) The applicant must include in the report to the Minister a copy of the warrant issued by the ICC, or the judgment of conviction, as applicable, and the other documentary evidence that the applicant produced to the Judge.
(3) On receipt of the report under subsection (1), the Minister may, if the Minister thinks fit, order that the proceedings be discontinued.
(4) If the Minister orders that the proceedings be discontinued, the Minister may cancel any warrant of arrest and order the discharge of any person arrested under the warrant.
(5) The Minister must notify the District Court of any action taken under subsection (3) or subsection (4).
Compare: 1999 No 55 s 21
38 Procedure where provisional arrest warrant issued
(1) If a person has been arrested on a provisional arrest warrant issued under section 36, the following provisions apply:
(a) the hearing of the proceedings must not proceed until the District Court receives from the Minister a notice in writing stating that a request for the surrender of the person has been transmitted to the Minister in the manner specified in section 25:
(b) pending the receipt of the notice from the Minister, the proceedings may from time to time be adjourned:
(c) the District Court must set a date by which the notice is to be transmitted to it, which must be a reasonable time having regard to—
(i) any provision in the Rules that prescribes the
maximum period for transmission by the ICC of the request and supporting documents to the requested State:
(ii) if there is no such provision, the time it is likely to take for the ICC to prepare and transmit the request and supporting documents to New Zealand:
(iii) the time it is likely to take for the Minister to consider the request after receipt and for the notice to be transmitted to the District Court:
(d) if the District Court does not receive the notice within the time fixed by the District Court under paragraph (c), and does not extend that time under subsection (2), the District Court must discharge the person.
(2) The District Court may, from time to time, in its discretion, extend any time fixed by it under subsection (1)(c).
Compare: 1999 No 55 s 23(4); Statute art 92(1)
Remand and bail
39 Procedure following arrest
(1) A person arrested on a warrant issued under section 34 or section 36 must, unless sooner discharged, be brought before a District Court as soon as possible.
(2) The person—
(a) is not entitled to bail as of right; and
(b) may not go at large without bail.
(3) If the District Court remands the person on bail, the District Court may impose any conditions of bail that the District Court thinks fit in addition to any conditions that the District Court may impose under section 30(1), (2), and (4) of the Bail Act 2000.
(4) Without limiting the other factors that may be taken into ac-count in making a decision to grant bail, the District Court must have regard to the following:
(a) the gravity of the alleged crimes:
(b) whether there are urgent and exceptional circumstances that favour the grant of bail; and
(c) whether necessary safeguards exist to ensure that New Zealand can fulfil its duty under the Statute to surrender the person to the ICC.
(5) Without limiting the other factors that may be taken into account in making a decision to grant bail, the District Court may not consider whether any warrant of arrest or judgment issued by the ICC was properly issued in accordance with the Statute.
Compare: 1999 No 55 s 23(1)–(3); Statute art 59(2)–(4)
40 Procedure for bail
(1) If an application for bail is made, the Minister must notify the ICC which may make recommendations to the Minister that must be conveyed to the District Court that is considering the application.
(2) Before rendering its decision, the District Court must consider any recommendations that the ICC has made, including any recommendations on measures to prevent the escape of the person.
(3) If the person is granted bail, the Minister must, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.
(4) This section applies with any necessary modifications to any bail application made during the period until the person is surrendered to the ICC or discharged according to law.
Compare: 1999 No 55 s 44(1)–(3); Statute art 59(2)–(6)
41 Powers of District Court
(1) In proceedings under this Part, except as expressly provided in this Act or in regulations made under section 179 or section 180,—
(a) a District Court has the same jurisdiction and powers, and must conduct the proceedings in the same manner, as if the person were charged with a category 1 or 2 offence alleged to have been committed within the jurisdiction of New Zealand; and
(b) the following provisions apply to the proceedings, so far as applicable and with the necessary modifications:
(i) subparts 1 and 3 of Part 4, Part 5, and sections 365 and 379 of the Criminal Procedure Act 2011:
(ii) Parts 1 (except sections 9 to 12), 2, and 3 of the Bail Act 2000:
(iii) sections 38 to 44 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
(2) In accordance with section 355 of the Criminal Procedure Act 2011, a District Court presided over by 1 or more Justices or 1 or more Community Magistrates does not have jurisdiction to conduct proceedings under this Part.
(3) Despite section 168(1) and (2) of the Criminal Procedure Act 2011, a decision to remand a person in custody or on bail may be made only by a Judge.
(4) [Repealed]
(5) Section 169 of the Criminal Procedure Act 2011 and sections 27, 30 to 33, 35, 37 to 39, 44, 45, and 52 of the Bail Act 2000 apply, so far as applicable and with the necessary modifications, to a person who is detained under section 46 or section 49.
(6) To avoid doubt, if an application is made for the variation of conditions of bail of a person who is detained under section 46 or section 49, the procedure in section 40(1) and (2) applies.
Compare: 1999 No 55 s 43
42 Detention in place other than prison
(1) This section applies if the District Court orders the detention of a person at any time under this Part.
(2) If the District Court concludes that detaining the person in prison would risk the person’s life or health or be undesirable for any reason, the District Court may order that the person be held in custody—
(a) at the place where the person is for the time being; or
(b) at any other place that the District Court considers appropriate, having regard to the risk or reason involved.
(3) The person may be held as specified in subsection (2) until—
(a) the person can be detained in a prison without risk to that person’s life or health; or
(b) the reason for not detaining the person in prison no longer applies; or
(c) the person is surrendered or discharged according to law.
(4) In making the order specified in subsection (2), the District Court must have regard to any recommendations that the ICC may make regarding the place of the person’s detention.
Compare: 1999 No 55 s 52; Statute art 59(5)
PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Miscellaneous provisions relating to arrest and surrender
77.
Search and seizure on arrest—
(1)If a person is arrested on a warrant issued under this Part, a con¬stable may search, without further warrant, the person arrested and may seize any thing, including any sum of money, found on the person or in the person’s possession if the constable be¬lieves on reasonable grounds that the thing on the person or in the person’s possession may be evidence as to the commission of any offence in relation to which the warrant to arrest was issued or for which the surrender of the person is sought by the ICC .
(2)If there is no suitable searcher available at the place where the search is to take place, the person to be searched may be taken to another place to be searched.
(3) Nothing in this section limits or affects the right at common law of a constable to search a person on that person’s arrest or any power under section 11 of the Search and Surveillance Act 2012.
(4) If any thing is seized under subsection (1) from the person arrested,—
(a) the constable must make a report to the Minister specifying the items seized and any other relevant information:
(b) the Minister must, on receipt of the report referred to in paragraph (a), provide the ICC with a report on the seizure
Cf 1999 No 55 s 82
78.
Disposal of property seized—
(1)If the Minister makes a surrender order or temporary surrender order under this Act, the Minister may also direct that any thing that was seized under section 77 that may be evidence of the offence the person is alleged to have committed or has committed be delivered with the person on the person's surrender to the ICC.
(2)If the person cannot be surrendered or temporarily surrendered by reason of the person's death or escape from custody, the Minister may direct that any thing that was seized under section 77 that may be evidence of the offence the person is alleged to have committed or has committed be delivered up to the ICC.
(3)If a person is discharged under this Act without being surrendered or temporarily surrendered, the Minister may direct that any thing seized under section 77 be returned to the person from whom it was seized.
(4)The Minister may refuse to direct that any thing referred to in subsection (1) or subsection (2) be delivered to the ICC if the thing is required for the investigation of an offence within the jurisdiction of New Zealand.
(5)The Minister may refuse to direct that any thing referred to in subsection (3) be returned to the person if—
(a)the thing is the subject of a dispute as to who is entitled to it; or
(b)the thing is required for the investigation of an offence within the jurisdiction of New Zealand; or
(c)possession of the thing by the person would be unlawful in New Zealand.
Cf 1999 No 55 s 89
(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.
(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.
States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.
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.
(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.
1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting State.
7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender:
(a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.
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.
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.
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.
2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:
(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;
(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;
(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and
(d) A statement that a request for surrender of the person sought will follow.
3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.
4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.