SURRENDER OF OFFENDERS
TO THE INTERNATIONAL CRIMINAL COURT
26A. Only the provisions of this Part, save where otherwise expressly indicated, shall apply to requests from the ICC for the arrest and surrender of a person alleged to have committed an ICC crime, or to have been convicted by the ICC.
26B. (1) In this Part, unless the context otherwise requires -
"delivery order" has the same meaning assigned to it by sub-article 26E;
"ICC crime" means a crime (other than the crime of aggression) over which the ICC has jurisdiction in accordance with the ICC Treaty the relevant articles of which are reproduced in the First Schedule to the International Criminal Court Act;
"the ICC" means the International Criminal Court established by the ICC Treaty;
"the ICC Treaty" means the Statute of the International Criminal Court, done at Rome on the 17th July, 1998;
"the Minister" means the Minister responsible for Justice.
(2) Words and phrases used in this part and used also in the ICC Treaty shall have the same meaning assigned to them in the said ICC Treaty.
26C. (1) Where the Minister receives a request from the ICC for the arrest and surrender of a person alleged to have committed an ICC crime, or to have been convicted by the ICC, he shall transmit the request and the documents accompanying it to the Attorney General.
(2) If the request is accompanied by a warrant of arrest and the Attorney General is satisfied that the warrant appears to have been issued by the ICC, he shall apply to a Magistrate to authorise the execution of the warrant. The Magistrate shall authorise such execution where he is satisfied that the warrant purports to have
been issued by the ICC.
(3) If in the case of a person convicted by the ICC the request is not accompanied by a warrant of arrest, but is accompanied by -
(a) a copy of the judgment of conviction,
(b) information to demonstrate that the person sought is the one referred to in the judgment of conviction, and
(c) where the person sought has been sentenced, a copy of the sentence imposed and a statement of any time already served and the time remaining to be served,
the Attorney General shall apply to a Magistrate for the issue of a warrant for the arrest of the person to whom the request relates and shall attach the documentation and information referred to in this subarticle.
(4) The Magistrate shall issue the warrant where he is satisfied that it appears that the person sought has been convicted by the ICC and that the documentation and information referred to in this article has been produced.
(5) The provisions of subarticle (4) and of the articles referred to in article 14(5) shall apply to a warrant issued under this Part.
26D. (1) Where the Minister receives from the ICC a request for the provisional arrest of a person alleged to have committed an ICC crime or to have been convicted by the ICC he shall transmit the request and the documents accompanying it to the Attorney General.
(2) Upon an application by the Attorney General stating that he has reason to believe -
(a) that a request has been made by the ICC for the arrest of a person, and
(b) that the person is in, or on his way to, Malta,
a Magistrate shall issue a warrant for the arrest of that person and shall notify the Minister of the issue of the warrant.
26E. (1) The provisions of article 15(1), other than the reference therein to article 14(3), shall mutatis mutandis apply to a person arrested under a provisional warrant under this Part.
(2) If an arrest warrant issued under article 26C is produced to the court in respect of the person brought before it, the court shall proceed as if he had been arrested under that warrant. If no such warrant is produced the court shall remand him pending the production of such a warrant.
(3) The Minister may make regulations specifying -
(a) the period for which a person may be so remanded at any time, and
(b) the total period for which a person may be so remanded,
having regard to the time limits specified in Rules of Evidence and Procedure for the purposes of Article 92.3 of the ICC Treaty.
(4) If at any time when the person is remanded as aforesaid there is produced to the court a warrant issued under article 26C in respect of him -
(a) the court shall terminate the period of remand, and
(b) he shall be treated as if arrested under that warrant -
(i) if he was remanded in custody, at the time the warrant was produced to the court;
(ii) if he was remanded on bail, when he surrenders to his bail.
(5) If no such warrant is produced to the court before the end of the period of remand (including any extension of that period), the court shall discharge him.
(6) The fact that a person has been discharged under this article does not prevent his subsequent arrest under a warrant issued under article 26C.
26F. (1) The provisions of article 26E(1) shall apply to a person arrested under a warrant issued under article 26C.
(2) If the court is satisfied -
(a) that the warrant -
(i) is a warrant of the ICC, or
(ii) has been duly issued under article 26C(3), and
(b) that the person brought before the court is the person named or described in the warrant,
it shall make a delivery order.
(3) A "delivery order" is an order that the person be delivered up -
(a) into the custody of the ICC, or
(b) if the ICC so directs in the case of a person convicted by the ICC, into the custody of the state of enforcement,
in accordance with arrangements made by the Minister.
(4) In the case of a person alleged to have committed an ICC crime, the court may adjourn the proceedings pending the outcome of any challenge before the ICC to the admissibility of the case or to the jurisdiction of the ICC.
(5) In deciding to make a delivery order the court is not concerned to enquire -
(a) whether any warrant issued by the ICC was duly issued, or
(b) in the case of a person alleged to have committed an ICC crime, whether there is evidence to justify his trial for the offence he is alleged to have committed.
26G. (1) When a person arrested under this Part is brought before the court that person may consent to being delivered up into the custody of the ICC or, in the case of a person convicted by the ICC, of the state of enforcement. Such consent is referred to in this Part as "consent to surrender".
(2) When the person arrested gives his consent to surrender, the court, upon being satisfied of the voluntariness of the consent, shall make a delivery order and all the provisions of this Part for that person’s surrender shall be deemed to be satisfied.
(3) No appeal shall lie from a delivery order made under this article.
Proceedings where court refuses delivery order
26H. (1) Where the court refuses to make a delivery order it shall nevertheless make an order remanding the person arrested into custody and that person shall remain in custody as provided in the proviso to article 15(3).
(2) The court shall notify the Minister of its decision not to make a delivery order and of the grounds for it.
26I. Where the court refuses to make a delivery order the provisions of article 19 shall mutatis mutandis apply and if the Court of Criminal Appeal allows the appeal it shall make a delivery order which shall be treated, for all purposes other than an appeal therefrom, as an order committing to custody the person to be delivered up.
Proceedings where court makes delivery order
26J. (1) Where the court makes a delivery order in respect of a person, the court shall -
(a) commit the person to custody to await the Minister’s directions as to the execution of the order,
(b) notify the Minister of its decision.
(2) Saving the provisions of article 26K, the provisions of articles 16 and 17 shall mutatis mutandis apply to a person committed to custody under this article.
26K. Saving the provisions of article 26L, the person to be delivered up following a delivery order may appeal from the order to the Court of Criminal Appeal and the provisions of article 18 shall mutatis mutandis apply to the appeal.
26L. (1) A person in respect of whom a delivery order has been made may waive his right of appeal and his right to apply for redress under the Constitution and any other right to apply for review of the lawfulness of his arrest and detention.
(2) Where a person has waived his rights as provided in subarticle (1), the court shall satisfy itself of the voluntariness of the waiver whereupon the delivery order shall be taken for all purposes of law to be validly made.
26M. (1) A delivery order is sufficient authority for any person acting in accordance with the directions of the Minister to receive the person to whom the order relates, keep him in custody and convey him to the place where he is to be delivered up into the custody of the ICC (or, as the case may be, of the state of enforcement) in accordance with arrangements made by the Minister.
(2) If a person in respect of whom a delivery order is in force escapes or is unlawfully at large, he may be arrested by the Police without warrant and taken to any place where or to which, by virtue of this Part, he is required to be or to be taken.
(3) The provisions of article 21(2) shall mutatis mutandis apply to any person in respect of whom a delivery order was made.
Bail, discharge, transit and unscheduled landing
26N. (1) Where an application for bail is made in proceedings under this Part -
(a) the court shall notify the Minister of the application,
(b) the Minister shall consult with the ICC, and
(c) bail shall not be granted without full consideration of any recommendations made by the ICC.
(2) In considering any application for bail under this article the court shall consider -
(a) whether, given the gravity of the offence or offences which the person is alleged to have committed or, as the case may be, of which he has been convicted by the ICC, there are urgent and exceptional circumstances justifying release on bail, and
(b) whether any necessary measures have been or will be taken to secure that the person will surrender to custody in accordance with the terms of his bail.
26O. (1) If the person in respect of whom a delivery order has been made is not delivered up under the order within the period of two months beginning with the first day on which, having regard to the provisions of article 26M(3) of this Act, he could have been returned he may apply to the Court of Criminal Appeal, sitting as a court of appeal from judgments of the Court of Magistrates, for his discharge.
(2) Upon such application the provisions of article 24(2) shall mutatis mutandis apply sohowever that the reference to the warrant under that subarticle shall be construed as a reference to the delivery order.
26P. Where the ICC informs the Minister that a person arrested under this Part is no longer required to be surrendered -
(a) the Minister shall notify the Attorney General of that fact, and
(b) the Attorney General shall, on receipt of the notification, apply to the court for an order discharging the person arrested.
26Q. (1) This article applies where the Minister receives a request from the ICC for transit of a person being surrendered by another state.
(2) If the Minister accedes to the request -
(a) the request shall be treated for the purposes of this Part as if it were a request for that person's arrest and surrender,
(b) the execution of the warrant accompanying the request shall be deemed to have been authorised under article 26C(2), and
(c) the person to whom the request relates shall, subject to the provisions of this article, be treated on arrival in Malta as if he had been arrested under that warrant.
(3) In relation to a case where this article applies -
(a) it shall be incumbent upon the court before whom the person to whom the request relates is produced in pursuance of the provisions of article 26F(2)(a)(i) to ascertain that the Minister has acceded to the request for transit; and
(b) article 16 to which reference is made in article 26J(2) shall have effect as if the reference to fifteen days were a reference to two working days.
(4) A person in transit under this article shall not be granted bail.
26R. (1) If a person being surrendered by another state makes an unscheduled landing in Malta, he may be arrested by the Police without warrant whereupon the provisions of article 15(1), other than the reference therein to article 14(3) and subject to the provisions of this article, shall mutatis mutandis apply.
(2) The court shall remand him in custody pending -
(a) receipt by the Minister of a request from the ICC for his transit, and
(b) the Minister’s decision whether to accede to the request.
(3) If no such request is received by the Minister before the end ninety-six hours beginning with the time of the arrested person’s unscheduled landing -
(a) the Minister shall forthwith notify the court of that fact, and
(b) the court shall, on receipt of the notification, discharge the arrested person.
(4) If the Minister receives such a request before the end of that period, he shall notify the court without delay of his decision whether to accede to the request.
(5) If the Minister notifies the court that he has decided to accede to the request -
(a) the court shall, on receipt of the notification, terminate the period of remand, and
(b) the provisions of article 26Q shall apply with the substitution for the reference to the time of arrival in Malta in subarticle (2)(c) thereof of a reference to the time of notification to the court under this subarticle.
(6) If the Minister notifies the court that he has decided not to accede to the request, the court shall, on receipt of the notification, discharge the arrested person.
26S. (1) Any state or diplomatic immunity attaching to a person by reason of a connection with a state party to the ICC Treaty does not prevent proceedings under this Part in relation to that person.
(2) Where -
(a) state or diplomatic immunity attaches to a person by reason of a connection with a state other than a state party to the ICC Treaty, and
(b) waiver of that immunity is obtained by the ICC in relation to a request for that person’s surrender,
the waiver shall be treated as extending to proceedings under this Part in connection with that request.
(3) A certificate by the Minister -
(a) that a state is or is not a party to the ICC Treaty, or
(b) that there has been such a waiver as is mentioned in subarticle (2),
is conclusive evidence of that fact for the purposes of this Part.
(4) The Minister may in any particular case, after consultation with the ICC and the state concerned, direct that proceedings (or further proceedings) under this Part which, but for subarticle (1) or (2), would be prevented by state or diplomatic immunity attaching to a person shall not be taken against that person.
(5) The power to make regulations conferred by article 3(1) of the National Interest (Enabling Powers) Act includes the power to
make in relation to any proceedings such provision corresponding to the provision made by this article in relation to the proceedings, but with the omission -
(a) in subarticle (1), of the words "by reason of a connection with a state party to the ICC Treaty", and
(b) of subarticles (2) and (3),
as it appears to the Prime Minister to be necessary or expedient in consequence of such a referral as is mentioned in article 13(b) (referral by the United Nations Security Council).
(6) In this article "state or diplomatic immunity" means any privilege or immunity attaching to a person, by reason of the status of that person or another as head of state, or as representative, official or agent of a state, under -
(a) the Diplomatic Immunities and Privileges Act, the Consular Conventions Act, the European Communities (Establishment of Delegation) Act, the Membership of International Financial Organisations Act,
(b) any other legislative provision made for the purpose of implementing an international obligation, or
(c) any rule of law derived from customary international law.
26T. The Minister may make regulations for the better carrying into effect the provisions of this part and without prejudice to the generality of the aforesaid may by such regulations make provision in respect of cases where he receives a request for the arrest or surrender, or provisional arrest, of a person -
(a) against whom criminal proceedings are pending or in progress before a court in Malta, or who has been dealt with in such proceedings, or
(b) against whom extradition proceedings are pending or in progress in Malta, or in respect of whom a warrant or order has been made in such proceedings.
26U. (1) For the purposes of this Part the copy of a warrant issued by the ICC that is transmitted to the Secretary of State Minister shall be treated as if it were the original warrant.
(2) Where facsimile transmission is used -
(a) for the making of a request by the ICC or the transmission of any supporting documents, or
(b) for the transmission of any document in consequence of such a request,
this Part applies as if the documents so sent were the originals of the documents so transmitted and shall be receivable and admissible in evidence accordingly.
(3) Where the ICC amends a warrant of arrest, the provisions of this Part apply to the amended warrant as if it were a new warrant; sohowever that this does not affect the validity of anything done in reliance on the old warrant.
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:
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
(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.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.