Division 1—General Arrest Provisions
Procedure to make an arrest
10.—(1) Any police officer or other person authorised by this Decree or any other law to make an arrest, shall actually touch or confine the body of the person to be arrested, unless the person submits to custody by word or action.
(2) If a person forcibly resists an arrest, or attempts to evade the arrest, all means necessary to effect the arrest may be used by the police officer or person authorised by this Decree to make the arrest.
(3) Nothing in this section justifies the use of greater force than is reasonable in the particular circumstances of the arrest, or is necessary for the apprehension of the offender.
Power to enter and search places
11.— (1) If any police officer or any person acting under a warrant of arrest, has reason to believe that the person to be arrested has entered into or is within any place, all persons residing in or being in charge of such a place shall —
(a) allow the police officer or arresting person free entry to the premises; and
(b) afford all reasonable facilities for a search of the premises.
(2) If entry to a place cannot be obtained under sub-section (1), it shall be lawful for a person acting under a warrant, and in any case in which a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity to escape, for a police officer to enter and search the place.
(3) In order to effect entry into a place in accordance with sub-section (2), a police officer may —
(a) break open any outer or inner door or window of the place; or
(b) otherwise effect entry into the place—
if entry to the place cannot be made after notification of the person's authority and purpose, and upon making a demand to be admitted.
Power to break out of a place entered
12. Any police officer or other person authorised to make an arrest may break out of any house or place in order to —
(a) liberate himself or herself; or
(b) liberate any other person who having lawfully entered for the purpose of making an arrest, is detained in the house or place.
No unnecessary restraint to be used
13. No person arrested may be subjected to more restraint than is necessary to prevent escape.
Search of arrested persons
14.— (1) Whenever a person is arrested in accordance with this Decree, a police officer may search the person and search any articles in the possession of the person or under the person's control, and shall place all articles found in safe custody.
(2) In exercising powers under sub-section (1), the police officer shall ensure that the arrested person has necessary clothes to wear.
(3) Subject to any other law providing for powers of search, the right to search an arrested person does not include the right to examine his or her intimate private parts.
(4) Where any property has been taken from a person under this section, and the person is not charged with any offence, all property taken from the person shall be restored as soon as practicable after the decision has been made not to charge the person with an offence.
Power of police officer to detain and search
15.—(1) The powers under sub-section (2) may be exercised by a police officer who has reason to suspect that any article —
(a) has been stolen or unlawfully obtained; or
(b) is one in respect of which a criminal offence has been, is being, or is about to be, committed; and
(c) which is being conveyed on any person or in any vehicle or in any package, or is otherwise being conveyed; or
(d) which is concealed or contained in any vehicle or package, for the purpose of being conveyed; or
(e) which is concealed or carried on any person in a public place.
(2) On the grounds stated in sub-section (1), a police officer may, without warrant or other written authority —
(a) detain and search any such person, vehicle or package; and
(b) take possession of and detain any such article (together with the package containing it, if any)
which the police officer reasonably suspects –
(i) to have been stolen or unlawfully obtained; or
(ii) in respect of which the police officer reasonably suspects that a criminal offence has been, is being, or is about to be committed; and
(c) detain the person conveying, concealing or carrying the article.
(3) The powers provided for in sub-section (2) shall not be exercised in the case of any article being conveyed by post, except where the posted article has been, or is suspected of having been, dishonestly appropriated during its transit as a posted item.
(4) If there is reason to suspect that there is on board any vessel or aircraft any property that has been stolen or unlawfully obtained, a police officer of or above the rank of sergeant, may –
(a) enter, without warrant and with or without assistants, on board such vessel;
(b) remain on board for such reasonable time as the officer considers necessary;
(c) search, with or without assistance, any part of such vessel;
(d) after demand and refusal of keys, break open any receptacle;
(e) upon discovery of any property which the officer reasonably suspects to have been stolen or unlawfully obtained, take possession of and detain the property;
(f) detain the person in whose possession any property detained under paragraph (e) is found; and
(g) pursue and detain any person who is in the act of conveying any such property away from any vessel, or after the person has landed with the property so conveyed away or found in his or her possession.
(5) A police officer may seize any articles in a public place —
(a) which may furnish evidence in regard to the commission of such offence; and
(b) where there is a possibility of the articles being removed or dealt with in such a way as to prevent their being available as evidence.
(6) All persons detained under this section shall be dealt with in accordance with the procedures applying to persons arrested without a warrant.
Searches to be undertaken by officers of the same gender
16. —(1) All searches of arrested persons shall be conducted only by police officers of the same gender as the arrested person.
(2) In any situation where there is no police officer of the same gender as the person to be searched available to do the search, arrangements may be made for the search to be conducted by a suitable person of the same gender.
(3) In all cases searches shall be undertaken with strict regard to decency.
Power to seize offensive weapons
17. Notwithstanding any other provision of this Decree, a police officer or other person making any arrest in accordance with this Decree may take from the person arrested any instruments of violence, and shall deliver all articles so taken to the police officer before whom the police officer or person making the arrest is required to produce the person arrested.
Division 2—Arrest Without Warrant
Arrest by police officers
18. Any police officer may, without an order from a magistrate and without a warrant, arrest any person —
(a) whom the officer suspects on reasonable grounds of having committed an indictable offence (whether or not the offence is triable summarily);
(b) who commits any offence in the presence of the officer;
(c) who obstructs a police officer while in the execution of his or her duty, or who has escaped or attempts to escape from lawful custody;
(d) in whose possession anything is found which may reasonably be suspected to be stolen property, or to have been used in the commission of an offence;
(e) whom the officer suspects upon reasonable grounds of being a deserter from the Fiji Police Force, the Fiji Military Force or the Fiji Prisons Service;
(f) whom the officer finds on any highway, or in any yard or other place during the night and whom he or she suspects on reasonable grounds of having committed or being about to commit an offence;
(g) whom the officer suspects on reasonable grounds of having been concerned in any act committed at any place outside Fiji which, if committed in Fiji, would have been punishable as an offence, and for which the offender is liable under any law to be apprehended and detained in Fiji;
(h) having in his or her possession any implement of housebreaking without lawful excuse (the burden of proving the excuse shall lie on such person);
(i) who is a released convict and who is committing a breach of any condition applying to the person's release from custody imposed under any law; and
(j) for whom the officer has reasonable cause to believe a warrant of arrest has been issued.
(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.