Chapter II Cooperation with the International Criminal Court

Section 3 Surrender of an Offender Sought for Surrender, etc.

Subsection 1 Surrender of an Offender Sought for Surrender

(Requirements for the Surrender of an Offender Sought for Surrender)
Article 19 (1) Where the offense underlying the surrender request constitutes a serious crime, the surrender of an offender sought for surrender may be carried out, except in a case that falls under any of the following items:

(i) when the case connected with the offense underlying the surrender request is pending before a Japanese court; provided, however, that this shall not apply where the ICC has determined that the case is admissible pursuant to the provisions of article 17, paragraph 1 of the Statute or has commenced proceedings in the case;
(ii) when a final and binding judgment has been issued in the case connected with the offense underlying the surrender request by a Japanese court; provided, however, that this shall not apply where the ICC has determined that the case is admissible pursuant to the provisions of article 17, paragraph 1 of the Statute, or has rendered a judgment of conviction in the case; or
(iii) when the offender sought for surrender is clearly found to have not committed the offense underlying the surrender request, except where the ICC has rendered a judgment of conviction with regard to the offense underlying the surrender request.

(2) Where the offense underlying the surrender request is any of the crimes prescribed in article 70, paragraph 1 of the Statute, the surrender of an offender sought for surrender may be carried out, except in a case that falls under any of the following items:

(i) when, if the act constituting the offense underlying the surrender request were to be committed within Japan, said act would not constitute a crime punishable by the death penalty, life imprisonment, or imprisonment with or without work for no fewer than three years under Japanese laws and regulations;
(ii) when, if the act constituting the offense underlying the surrender request were to be committed within Japan or if the trial for the offense underlying the surrender request were to be carried out by a Japanese court, it would be found impossible to impose a punishment on the offender sought for surrender or to execute such a punishment under Japanese laws and regulations;
(iii) when there are no reasonable grounds to suspect that the offender sought for surrender has committed the act constituting the offense underlying the surrender request, except where the ICC has rendered a judgment of conviction with regard to the offense underlying the surrender request;
(iv) when the case connected with the offense underlying the surrender request is pending before a Japanese court, or when a final and binding judgment has been issued thereon by a Japanese court;
(v) when a case connected with a crime other than the offense underlying the surrender request that has been committed by the offender sought for surrender is pending before a Japanese court, or when the offender sought for surrender has been sentenced to punishment by a Japanese court with regard to such a case and he/she has neither served out the sentence nor come to no longer be subject to the execution thereof; or
(vi) when the offender sought for surrender is a Japanese national.


(Measures by the Minister of Justice)
Article 20 (1) When the Minister of Justice has received documents sent by the Minister of Foreign Affairs pursuant to the provisions of Article 4 concerning a request for cooperation through the surrender of an offender sought for surrender, he/she shall, except where any of the following items applies, send the relevant documents to the Superintending Prosecutor of the Tokyo High Public Prosecutors Office and order an application to be made to the Tokyo High Court for examination as to whether the case is one in which the offender sought for surrender may be surrendered:

(i) when the case is found to clearly fall under any of the items of paragraph (1) of the preceding Article or any of the items of paragraph (2) of said Article;
(ii) when the request for cooperation competes with a request for the extradition of a fugitive as prescribed in Article 3 of the Act of Extradition (Act No. 68 of 1953) or with a request for the provisional detention of an offender as prescribed in Article 23, paragraph (1) of said Act and, where it is possible to give priority to the relevant request for extradition or provisional detention pursuant to the provisions of the Statute, when it is found appropriate to extradite the fugitive or to provisionally detain the offender;
(iii) when complying with the request for cooperation would result in a breach of any of the obligations under international law or obligations under international agreements prescribed in article 98 of the Statute;
(iv) when complying with the request for cooperation would risk obstructing the investigation or trial in a case connected with a crime other than the offense underlying the cooperation request, that is being investigated by a Japanese public prosecutor, public prosecutor's assistant officer, or judicial
police official, or a case connected with a crime other than the offense underlying the cooperation request (limited to a crime committed by a person other than the offender sought for surrender), that is pending before a Japanese court, and it is found inappropriate to immediately comply with said request; or
(v) when there are any other justifiable grounds for not immediately complying with the request for cooperation.

(2) The Minister of Justice may conduct an inquiry into the whereabouts of the offender sought for surrender and other necessary matters, when he/she finds it necessary to do so in order to issue an order under the provisions of the preceding paragraph or to take any other measures concerning the surrender of an offender sought for surrender.


(Detention of an Offender Sought for Surrender)
Article 21 (1) Upon receiving an order under the provisions of paragraph (1) of the preceding Article, the Superintending Prosecutor of the Tokyo High Public Prosecutors Office shall, except when the offender sought for surrender is being detained under a provisional detention permit or when his/her detention under a provisional detention permit has been suspended, cause a public prosecutor of the Tokyo High Public Prosecutors Office to detain the offender sought for surrender under a detention permit that has been issued in advance by a judge of the Tokyo High Court.

(2) The provisions of Article 5, paragraphs (2) and (3), and Articles 6 and 7 of the Act of Extradition shall apply mutatis mutandis to the detention of an offender sought for surrender under a detention permit set forth in the preceding paragraph. In this case, the phrase "the requesting country, the valid period of the permit" in Article 5, paragraph (3) of said Act shall be deemed to be replaced with "the valid period of the permit."


(Application for Examination)
Article 22 (1) A public prosecutor of the Tokyo High Public Prosecutors Office shall, when the order provided for in Article 20, paragraph (1) has been issued, except when the whereabouts of the offender sought for surrender are unknown, promptly apply to the Tokyo High Court for an examination of whether it is possible to surrender the offender sought for surrender.

(2) The provisions of the second sentence of Article 8, paragraph (1), and paragraphs (2) and (3) of said Article of the Act of Extradition shall apply mutatis mutandis to the application for examination set forth in the preceding paragraph with regard to surrender of an offender sought for surrender.


(Examination by the Tokyo High Court)
Article 23 (1) The Tokyo High Court shall, on the basis of the results of its examination, render its decision as specified in the following items in accordance with the cases listed in each of those items:

(i) when the application for examination set forth in paragraph (1) of the preceding Article is unlawful: a decision for dismissal;
(ii) when the case is one in which the offender sought for surrender can be surrendered: a decision to that effect; and
(iii) when the case is not one in which the offender sought for surrender can be surrendered: a decision to that effect.

(2) The provisions of Article 9 of the Act of Extradition shall apply mutatis mutandis to the examination by the Tokyo High Court in connection with an application for examination as set forth in paragraph (1) of the preceding Article, the provisions of Article 10, paragraphs (2) and (3) of said Act shall apply mutatis mutandis to the orders set forth in the preceding paragraph, the provisions of Article 11 of said Act shall apply mutatis mutandis to rescission of an order under the provisions of Article 20, paragraph (1), the provisions of Article 12 of said Act shall apply mutatis mutandis to release of an offender sought for surrender, and the provisions of Article 13 of said Act shall apply mutatis mutandis to a certified transcript of the written decision in connection with the examination. In the case above, the phrase "paragraph (1), item (i) or (ii) of the following Article" in the proviso to Article 9, paragraph (3) of said Act shall be deemed to be replaced with "Article 23, paragraph (1), item (i) or (iii) of the Act on Cooperation with the International Criminal Court (Act No. 37 of 2007)," the phrases "of Article 3," and "receives notification from the requesting country that it will withdraw its extradition request, or when the case has fallen under item (ii) of Article 3" in Article 11, paragraph (1) of said Act shall be deemed to be replaced with "of Article 4 of the Act on Cooperation with the International Criminal Court" and "receives notification from the International Criminal Court that it will withdraw its surrender request," respectively, the phrases "of Article 4, paragraph (1)," "the items of Article 4, paragraph (1)," and "Article 8, paragraph (3)" in paragraph (2) of said Article shall be deemed to be replaced with "of Article 20, paragraph (1) of the Act on Cooperation with the International Criminal Court," "the items of paragraph (1) of said Article," and "Article 8, paragraph (3) as applied mutatis mutandis pursuant to Article 22, paragraph (2) of said Act," respectively, and the phrase "Article 10, paragraph (1), item (i) or (ii)" in Article 12 of said Act shall be deemed to be replaced with "Article 23, paragraph (1), item (i) or (iii) of the Act on Cooperation with the International Criminal Court."


(Stay of Examination Proceedings)
Article 24 (1) In the examination set forth in Article 9 of the Act of Extradition as applied mutatis mutandis pursuant to paragraph (2) of the preceding Article, where the offender sought for surrender files a motion to the effect that the surrender of the offender sought for surrender should not be granted, on the basis that a case connected to the offense underlying the surrender request is pending before a court in a foreign country or that a final and binding judgment has been issued on said case by a court in a foreign country, the Tokyo High Court may stay the examination proceedings, by an order, until the ICC determines the admissibility of the case pursuant to the provisions of article 17, paragraph 1 of the Statute.

(2) When the motion set forth in the preceding paragraph has been filed, the Superintending Prosecutor of the Tokyo High Public Prosecutors Office shall promptly report to the Minister of Justice to that effect.

(3) Upon receiving the report set forth in the preceding paragraph, the Minister of Justice shall notify the Minister of Foreign Affairs to the effect that the motion set forth in paragraph (1) has been filed.

(4) Upon receiving the notice set forth in the preceding paragraph, the Minister of Foreign Affairs shall notify the ICC to the effect that the motion set forth in paragraph (1) has been filed, and shall consult with the ICC concerning the determination on the admissibility of a case under the provisions of article 17, paragraph 1 of the Statute with regard to the offense underlying the surrender request.

(5) Where the examination proceedings have been stayed pursuant to the provisions of paragraph (1), when a public prosecutor of the Tokyo High Public Prosecutors Office finds it necessary, he/she may suspend the detention of the offender sought for surrender. In this case, when he/she finds it necessary, he/she may entrust the offender sought for surrender to a relative thereof or some other person, or restrict the residence of the offender sought for surrender.

(6) Where detention has been suspended pursuant to the provisions of the preceding paragraph, when the ICC has then determined to admit the case pursuant to the provisions of article 17, paragraph 1 of the Statute for the offense underlying the surrender request, a public prosecutor of the Tokyo High Public Prosecutors Office shall rescind the suspension of the detention.

(7) The provisions of Article 22, paragraphs (3) through (6) of the Act of Extradition shall apply mutatis mutandis to where the suspension of a detention has been rescinded pursuant to the provisions of the preceding paragraph for an offender sought for surrender.

(8) With regard to the application of the provisions of Article 9, paragraph (1) of the Act of Extradition as applied mutatis mutandis pursuant to paragraph (2) of the preceding Article where examination proceedings have been stayed pursuant to the provisions of paragraph (1), the term "two months" in Article 9, paragraph (1) of said Act shall be deemed to be replaced with "two months (excluding the period during which the examination proceedings were stayed pursuant to the provisions of Article 24, paragraph (1) of the Act on Cooperation with the International Criminal Court)."


(Order of the Minister of Justice regarding the Surrender of an Offender Sought for Surrender, etc.)
Article 25 (1) Where the decision set forth in Article 23, paragraph (1), item (ii) has been issued, when the Minister of Justice finds that the case does not fall under any of the provisions of Article 20, paragraph (1), items (ii) through (v), he/she shall order the Superintending Prosecutor of the Tokyo High Public Prosecutors Office to effect the surrender of an offender sought for surrender and notify the offender sought for surrender to that effect. In this case, when said offender sought for surrender is being detained under a detention permit, the order of surrender shall be issued within ten days from the day on which the order set forth in Article 23, paragraph (1), item (ii) was issued.

(2) Where the decision prescribed in the preceding paragraph has been issued by the Tokyo High Court, when the Minister of Justice finds that the case falls under either of the provisions of Article 20, paragraph (1), item (ii) or (iii), he/she shall immediately notify the Superintending Prosecutor of the Tokyo High Public Prosecutors Office and the offender sought for surrender to that effect, and shall order the Superintending Prosecutor of the Tokyo High Public Prosecutors Office to release the offender sought for surrender who is being detained under the detention permit.

(3) Where the order under the provisions of the preceding paragraph has been issued by the Minister of Justice, a public prosecutor of the Tokyo High Public Prosecutors Office shall immediately release the offender sought for surrender who is being detained under the detention permit.

(4) Where the decision prescribed in paragraph (1) has been issued by the Tokyo High Court, when the Minister of Justice finds that the case falls under either of the provisions of Article 20, paragraph (1), item (iv) or (v), he/she shall notify the Superintending Prosecutor of the Tokyo High Public Prosecutors Office to that effect, and shall order the Superintending Prosecutor of the Tokyo High Public Prosecutors Office to suspend the detention of the offender sought for surrender who is being detained under the detention permit.

(5) Where an order to suspend detention under the provisions of the preceding paragraph has been issued by the Minister of Justice, a public prosecutor of the Tokyo High Public Prosecutors Office shall immediately suspend the detention of the offender sought for surrender who is being detained under the detention permit. In this case, the provisions of the second sentence of paragraph (5) of the preceding Article shall apply mutatis mutandis.

(6) After ordering the suspension of detention under the provisions of paragraph (4), when the case has ceased to fall under either of the provisions of Article 20, paragraph (1), item (iv) or (v), the Minister of Justice shall issue an order of surrender under the provisions of paragraph (1).

(7) When the order of surrender set forth in the preceding paragraph has been issued, a public prosecutor of the Tokyo High Public Prosecutors Office shall rescind the suspension of the detention under the provisions of paragraph (5).

(8) The provisions of Article 22, paragraphs (3) through (6) of the Act of Extradition shall apply mutatis mutandis where the suspension of the detention of an offender sought for surrender has been rescinded pursuant to the provisions of the preceding paragraph.


(Postponement of an Order for the Surrender of an Offender Sought for Surrender)
Article 26 (1) In the case prescribed in paragraph (1) of the preceding Article (limited to where the offense underlying the surrender request constitutes a serious crime), when the Minister of Justice finds that the case falls under either of the following items and that it is unreasonable to immediately effect the surrender of an offender sought for surrender, he/she may postpone the order for surrender notwithstanding the provisions of said paragraph:

(i) when a case connected with a crime other than the offense underlying the surrender request, that has been committed by the offender sought for surrender is pending before a Japanese court; or
(ii) when the offender sought for surrender has been sentenced to punishment by a Japanese court with regard to a case prescribed in the preceding item, and he/she has neither served out the sentence nor come to no longer be subject to the execution thereof.

(2) When the Minister of Justice postpones an order for the surrender of an offender sought for
surrender pursuant to the provisions of the preceding paragraph, he/she shall notify the Superintending Prosecutor of the Tokyo High Public Prosecutors Office to that effect, and shall order the Superintending Prosecutor of the Tokyo High Public Prosecutors Office to suspend the detention of the offender sought for surrender who is being detained under the detention permit.

(3) When an order under the provisions of the preceding paragraph has been issued, a public prosecutor of the Tokyo High Public Prosecutors Office shall immediately suspend the detention of the offender sought for surrender who is being detained under the detention permit. In this case, the provisions of the second sentence of Article 24, paragraph (5) shall apply mutatis mutandis.

(4) After ordering the suspension of a detention under the provisions of paragraph (2), when the case has ceased to fall under either of the provisions of the items of paragraph (1) or when the grounds for finding that it is unreasonable to surrender the offender sought for surrender have ceased to exist, the Minister of Justice shall issue an order for the surrender thereof pursuant to the provisions of paragraph (1) of the preceding Article to the Superintending Prosecutor of the Tokyo High Public Prosecutors Office.

(5) Where the order of surrender set forth in the preceding paragraph has been issued, a public prosecutor of the Tokyo High Public Prosecutors Office shall rescind the suspension of the detention under the provisions of paragraph (3).

(6) The provisions of Article 22, paragraphs (3) through (6) of the Act of Extradition shall apply mutatis mutandis to where the suspension of the detention of an offender sought for surrender has been rescinded pursuant to the provisions of the preceding paragraph.


(Suspension of a Detention Where Detention Is Problematic, and the Rescission Thereof)
Article 27 (1) A public prosecutor of the Tokyo High Public Prosecutors Office may, at the motion of an offender sought for surrender who is being detained under a detention permit or ex officio, suspend the detention of the offender sought for surrender when there is a risk that the health of the offender sought for surrender will be substantially damaged by the detention or when he/she otherwise finds that continuing to detain him/her would be problematic.

(2) When the motion set forth in the preceding paragraph has been filed or when a public prosecutor of the Tokyo High Public Prosecutors Office intends to suspend a detention ex officio, the Superintending Prosecutor of the Tokyo High Public Prosecutors Office shall report to the Minister of Justice to that effect.

(3) When the Minister of Justice has received a report under the preceding paragraph, he/she shall notify the Minister of Foreign Affairs to that effect.

(4) When the Minister of Foreign Affairs has been notified under the preceding paragraph, he/she shall seek the opinion of the ICC with regard to the suspension of the detention of the offender sought for surrender.

(5) In determining whether or not to suspend a detention pursuant to the provisions of paragraph (1), the public prosecutor of the Tokyo High Public Prosecutors Office shall respect the opinion set forth in the preceding paragraph; provided, however, that he/she may suspend the detention without that opinion when the situation is urgent and there is no time available to hear said opinion.

(6) The provisions of the second sentence of Article 24, paragraph (5) shall apply mutatis mutandis to where a detention is suspended pursuant to the provisions of paragraph (1).

(7) When a public prosecutor of the Tokyo High Public Prosecutors Office finds it necessary, he/she may rescind the suspension of a detention under the provisions of paragraph (1) at any time.

(8) The provisions of Article 22, paragraphs (3) through (6) of the Act of Extradition shall apply mutatis mutandis to where the suspension of the detention of an offender sought for surrender has been rescinded pursuant to the provisions of the preceding paragraph.


(Lapse of a Detention During the Suspension Thereof)
Article 28 A detention that has been suspended pursuant to the provisions of Article 24, paragraph (5), Article 25, paragraph (5), Article 26, paragraph (3), or paragraph (1) of the preceding Article shall lose its effect in a case that falls under any of the following items:

(i) when a certified transcript of the written judgment in the decision set forth in Article 23, paragraph (1), item (i) or (iii) has been served upon the offender sought for surrender;
(ii) when the offender sought for surrender has been notified pursuant to the provisions of Article 11, paragraph (2) of the Act of Extradition as applied mutatis mutandis pursuant to Article 23, paragraph (2); or
(iii) when the offender sought for surrender has been notified by the Minister of Justice to the effect that the case falls under either Article 20, paragraph (1), item (ii) or (iii), pursuant to the provisions of Article 25, paragraph (2).


(Time Limit for the Surrender of an Offender Sought for Surrender)
Article 29 (1) The surrender of an offender sought for surrender under an order issued by the Minister of Justice pursuant to the provisions of Article 25, paragraph (1) shall be effected within thirty days from the date of said order (when a detention has been suspended, within thirty days from the date on which the offender sought for surrender was detained as a result of the rescission of the suspension of his/her detention).

(2) With regard to the application of the provisions of the preceding paragraph to a case in which a detention was suspended pursuant to the provisions of Article 27, paragraph (1) after an order under the provisions of Article 25, paragraph (1) was issued by the Minister of Justice, the period during which the detention was suspended shall not be included in the period set forth in the preceding paragraph.


(Consultation with the Minister of Foreign Affairs)
Article 30 The Minister of Justice shall consult with the Minister of Foreign Affairs in advance in a case that falls under any of the following items:
(i) when withholding an order under the provisions of Article 20, paragraph (1) on the basis that the case falls under Article 20, paragraph (1), item (i) (limited to the portion pertaining to Article 19, paragraph (1));
(ii) when deciding not to cooperate through the surrender of an offender sought for surrender, on the basis that the case falls under any of the provisions of Article 20, paragraph (1), item (ii) or (iii);
(iii) when withholding an order under the provisions of Article 20, paragraph (1) or when taking measures under the provisions of Article 25, paragraph (4), on the basis that the case falls under any of the provisions of Article 20, paragraph (1), item (iv) or (v); or
(iv) when postponing an order for the surrender of an offender sought for surrender pursuant to the provisions of Article 26, paragraph (1).


(Measures Related to the Surrender of an Offender Sought for Surrender)
Article 31 (1) The provisions of Article 16, paragraphs (1) through (3), Article 17, paragraph (1), and Articles 18 and 19 of the Act of Extradition shall apply mutatis mutandis to the surrender of an offender sought for surrender in connection with an order of surrender issued by the Minister of Justice under the provisions of Article 25, paragraph (1). In this case, the phrase "the report from the Superintending Prosecutor of the Tokyo High Prosecutors Office provided for in paragraph (5) of the preceding Article or in Article 22, paragraph (6)" in Article 18 of said Act shall be deemed to be replaced with "the report prescribed under the provisions of Article 22, paragraph (6) as applied mutatis mutandis pursuant to Article 25, paragraph (8), Article 26, paragraph (6), or Article 27, paragraph (8) of the Act on Cooperation with the International Criminal Court (where Article 22, paragraph (6) is applied mutatis mutandis pursuant to Article 27, paragraph (8) of said Act, the report shall be limited to one given when the suspension of the detention was rescinded after the order of surrender was issued by the Minister of Justice under the provisions of Article 25, paragraph (1) of said Act)," and the term "the requesting country" in Article 19 of said Act shall be deemed to be
replaced with "the International Criminal Court."

(2) The notice of surrender set forth in Article 16, paragraph (1) of the Act of Extradition and the written permit of custody set forth in paragraph (3) of said Article as applied mutatis mutandis pursuant to the preceding paragraph shall each contain the name of the offender sought for surrender, the offense underlying the surrender request, the place of surrender, the time limit for the surrender, the date of issuance, and, in the surrender of an offender sought for surrender who escaped during the execution of a sentence of detention rendered by the ICC, the name of the foreign country designated by the ICC as the place where the offender is to be surrendered, and the Minister of Justice shall affix his/her name and seal thereto.


Article 32 The warden of a penal institution who has received an order under the provisions of Article 17, paragraph (1) of the Act of Extradition as applied mutatis mutandis pursuant to paragraph (1) of the preceding Article or an official of the penal institution who has been nominated by that warden shall escort the offender sought for surrender to the place of surrender stated in the notice of surrender, and shall surrender said offender sought for surrender to the person designated by the ICC who is in possession of the written permit of custody.


Article 33 The person to whom an offender sought for surrender has been surrendered in Japan pursuant to the provisions of the preceding Article shall promptly escort the offender sought for surrender to the ICC or to the foreign country designated as the place where the offender sought for surrender is to be surrendered, as prescribed in Article 31, paragraph (2).