PART IV
ARREST AND SURRENDER OF PERSON TO ICC
45. Surrender hearing-(1) The Judge before whom a person arrested under section 36 or 42 is brought shall satisfy themselves that –
(a) there is a warrant of arrest issued by the ICC or a judgment of conviction by the ICC, in respect of that person; and
(b) the warrant or judgment relates to the person before the Judge.
(2) Upon the Judge being satisfied of the matters referred to in paragraphs (a) and (b) of subsection(1) with respect to the arrested person, the Judge shall, subject to section 43, issue a delivery order in respect of that person in accordance with article 59(7) of the Statute.
(3) Where the Judge issues a delivery order under subsection (2), the Judge shall –
(a) transmit the delivery order to the Commissioner of Police for execution;
(b) commit the person to custody pending the execution of the delivery order by the Commissioner of Police;
(c) send a copy of the delivery order to the Minister; and
(d) inform the person in the ordinary language of the person’s right to make an application to the Supreme Court for a mandate in the nature of a writ of habeas corpus.
(4) If the person who is the subject of a delivery order –
(a) is in custody, the Judge shall order the continued detention of the person under the delivery order and notify the Commissioner of Prisons and the Chief Gaoler of the prison, of the delivery order; or
(b) is not in custody, the Judge shall, subject to any order with regard to bail, commit the person to custody and shall notify the Commissioner of Prisons and the Chief Gaoler of the prison.
(5) Subject to subsection (6), the Commissioner of Police shall make arrangements with the ICC for the execution of the delivery order as soon as possible, and shall notify the Minister when the person has been surrendered to the ICC or the state of enforcement, in execution of the delivery order.
(6) Subject to section 47, the Commissioner of Police shall not make arrangements with the ICC for the execution of the delivery order –
(a) until after the expiration of the period prescribed by law for making an application for habeas corpus by the person to whom the order relates; or
(b) if an application for habeas corpus is made by such person within such period, until after the final determination of the application.
(7) A delivery order issued under this section is sufficient authority for holding the person specified in the order in custody until the person’s delivery to the ICC.
(8) In deciding whether to make a delivery order under this section –
(a) the Judge shall not require evidence to establish that the trial of the person for the crime that the person he is alleged to have committed is justified before the ICC or would be justified under the law of Samoa if the act constituting such crime had been committed in Samoa; and
(b) the Judge shall not receive evidence with respect to, nor adjudicate on, any claim by the person that the person has been previously tried or convicted for the conduct for which the ICC seeks surrender of the person.
(9) If the person makes a claim, under subsection (8) (b), the Judge shall advise the Minister of this claim and the Minister shall transmit that information to the ICC.
46. Judge not to inquire into validity of warrant – In proceedings under this Part of this Act the Judge shall not inquire into, receive any evidence regarding, or make any decisions as to, the validity of any warrant or order issued or made by the ICC.
47. Surrender by consent-(1) A person may at any time notify a Judge that the person consents to being surrendered to the ICC for the crime or crimes for which the ICC seeks the surrender of the person.
(2) The Judge may accept the notification of consent under subsection (1) if –
(a) the person is before the Judge when notification of the consent to surrender is given; and
(b) the Judge is satisfied that the person has freely consented to the surrender in full knowledge of its consequences
(3) Nothing in this section shall be construed as preventing a person, in respect of whom the Judge has made a delivery order, from subsequently notifying the Minister that the person consents to surrender.
(4) For the avoidance of doubt a person arrested under a provisional warrant may consent to surrender before a request for surrender is received, in which case the Judge may make an order under subsection (5).
(5) Where the consent to surrender has been given, the Judge shall immediately make a delivery order in the same terms as section 45(2) and such of the provisions of sections 45 and 46 as are applicable shall thereupon apply.
48. Effect of delivery order-(1) A delivery order is sufficient authority for any person to receive the person to whom the order relates, keep the person in custody and convey the person to the place where the person is to be delivered up into the custody of the ICC or of the state of enforcement, in accordance with arrangements made by the Commissioner of Police.
(2) A person in respect of whom a delivery order is in force shall be deemed to be in legal custody pending delivery up under the order.
(3) If a person in respect of whom a delivery order is in force escapes or is unlawfully at large, the person may be arrested without warrant and taken to the place where the person is required to be or to be taken.
49. Procedure where Judge refuses order-(1) Where the Judge refuses to make a delivery order under section 45, the Judge shall make an order remanding the person arrested in custody for fourteen days, and shall notify the Minister of the person’s decision and of the grounds for it.
(2) The Minister may appeal to the Court of Appeal, as the case may be against the decision by the Judge refusing to make a delivery order.
(3) Where the Judge is informed that an appeal is to be taken against the decision, the order remanding the person arrested shall continue to have effect until the appeal is determined and the person is either discharged or the delivery order is executed.
(4) Where the Court of Appeal allows the appeal, it may make a delivery order or remit the case to the Judge to make a delivery order in accordance with the decision of the Supreme Court.
(5) Where the Court of Appeal dismisses the appeal, the person shall be discharged in accordance with the decision of the Supreme Court.
50. Discharge of person not delivered up-(1) If the person in respect of whom a delivery order has been made is not delivered up under the order within 60 days after the expiration of the period prescribed by law for making an application for habeas corpus or, if such an application is made within 60 days, after the final determination of the application, that person or someone duly authorised by the person may make an application to the Judge who made the delivery order, for the person’s discharge.
(2) On an application made under this section, the Judge shall order the persons discharge unless reasonable cause is shown for the delay.
(3) The discharge of a person under subsection (2) shall be without prejudice to any subsequent proceedings that may be brought for the arrest and surrender of the person to the ICC whether for the same facts and offence or not.
51. Discharge of person no longer required to be surrendered-(1) Where the ICC informs the Minister that the person arrested upon the request of the ICC is no longer required to be surrendered, the Minister shall notify the Judge of that fact and the Judge shall on receipt of the notification make an order for the discharge of the person.
(2) The discharge of a person under subsection (1) shall be without prejudice to any subsequent proceedings that may be brought for the arrest and surrender of the person to the ICC whether for the same facts and offence or not.
52. Request for temporary surrender-(1) Where a request for arrest and surrender by the ICC relates to a crime within the jurisdiction of the ICC but the person is subject to proceedings for a different offence in Samoa which have not been finally disposed of or is liable to serve a sentence of imprisonment imposed by a court in Samoa for a different offence, the Minister may authorise the temporary transfer of that person to the ICC.
(2) The Minister may, before making an authorisation under subsection (1), seek an undertaking from the ICC that the person shall be returned on completion of proceedings before the ICC or service of sentence imposed by the ICC, as the case may be.
(3) Subsections (2), (3), (4) and (5) of section 67 shall apply to an authorisation under subsection (1) with any necessary modifications.
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.