Request for arrest and surrender

Mauritius

International Criminal Court Act 2011

PART IV – ARREST AND SURRENDER OF PERSONS

11. Endorsement of warrant of arrest

(1) Any request from the International Criminal Court for the arrest or provisional arrest and surrender of a person for whom a warrant of arrest has been issued by the International Criminal Court shall be directed to the Attorney-General and accompanied by –

(a) sufficient information, describing the person sought, to identify the person;
(b) information as to that person’s probable location ;
(c) a copy of the warrant of arrest issued by the International Criminal Court; and
(d) such other documents as may be necessary to satisfy a Judge that there is sufficient ground for the surrender of that person to the International Criminal Court .
(2) The Attorney-General shall, on receipt of that request, forward it and the accompanying documents to a Judge, who shall endorse the warrant of arrest for execution in Mauritius

PART IV – ARREST AND SURRENDER OF PERSONS

12. Provisional warrant

(1) Where the Attorney-General receives a request in relation to an urgent case from the International Criminal Court for the provisional arrest of a person who is suspected or accused of having committed an offence contemplated in the Statute, or who has been convicted by the International Criminal Court of such an offence, the Attorney-General shall apply for a warrant of arrest for that person.

PART IV – ARREST AND SURRENDER OF PERSONS

11. Endorsement of warrant of arrest

(1) Any request from the International Criminal Court for the arrest or provisional arrest and surrender of a person for whom a warrant of arrest has been issued by the International Criminal Court shall be directed to the Attorney-General and accompanied by –
(a) sufficient information, describing the person sought, to identify the person;
(b) information as to that person’s probable location ;
(c) a copy of the warrant of arrest issued by the International Criminal Court; and
(d) such other documents as may be necessary to satisfy a Judge that there is sufficient ground for the surrender of that person to the International Criminal Court .

(2) The Attorney-General shall, on receipt of that request, forward it and the accompanying documents to a Judge, who shall endorse the warrant of arrest for execution in Mauritius .

12. Provisional warrant

(1) Where the Attorney-General receives a request in relation to an urgent case from the International Criminal Court for the provisional arrest of a person who is suspected or accused of having committed an offence contemplated in the Statute, or who has been convicted by the International Criminal Court of such an offence, the Attorney-General shall apply for a warrant of arrest for that person.

(2) On an application by the Director of Public Prosecutions Attorney-General stating under oath that he has reason to believe that –
(a) the request of the International Criminal Court has been made on grounds of urgency for the arrest of a person who is suspected or accused of having committed an offence contemplated in the Statute or who has been convicted by the International Criminal Court;
(b) a warrant of arrest has been issued, or a judgment of conviction has been delivered, against the person in question;
(c) a formal request for the surrender of the person to the International Criminal Court will be made subsequently
(d) the person concerned is in, or on his way to, Mauritius; and
(e) the purpose of the arrest is –
(i) to bring the person concerned before the International Criminal Court to stand trial; or
(ii) to take him to a place where he is to undergo imprisonment under a sentence of the International Criminal Court, as the case may be,
a Magistrate may issue a warrant for the arrest of that person and notify the Attorney- General that a warrant has been issued.

(3) The warrant shall contain –
(a) sufficient information, describing the person sought, to identify the person, and information as to that person’s probable location;
(b) a concise statement of the offence for which the person’s arrest is sought and of the facts which are alleged to constitute that offence, including, where possible, the date and location of the offence;
(c) a statement of the existence of a warrant of arrest or a judgment of conviction against the person sought; and
(d) a statement that a request for surrender of the person sought will follow .

13. Postponement of execution of request
(1) The Attorney-General shall not postpone the execution of a request for arrest and surrender at any time before the surrender of the person, unless the request would interfere with an investigation or prosecution in Mauritius involving a different offence from that for which surrender is requested.

(2) The Attorney-General shall consult with the International Criminal Court and agree on a period of time for postponement of the execution of the request in accordance with Article 94 of the Statute, and the Attorney-General shall proceed with the execution of the request after the lapse of that period, unless otherwise agreed with the International Criminal Court.

(3) Where the Attorney-General decides to postpone the execution of a request for arrest and surrender in accordance with this section after he has forwarded a request pursuant to section 11 or 12, he shall –
(a) notify the Magistrate of the postponement and the Magistrate shall adjourn any pending proceedings until further notice from the Attorney-General; and
(b) notify the Magistrate at the relevant time whether the execution of the request is to proceed or not, and the Magistrate shall proceed accordingly with the execution of the request or the discharge of the person.

(4) A decision by the Attorney-General to postpone the execution of a request shall not affect the validity of any act that has been done or any warrant or order made under this Part prior to the decision, and any such warrant or order shall remain in force unless cancelled by the International Criminal Court.

14. International obligations

(1) Where the Attorney-General considers that the execution of a request for the arrest and surrender of a person may be in conflict with the obligations of Mauritius to a foreign country under international law or international agreements referred to in Article 98 of the Statute, he shall consult with the International Criminal Court.

(2) Where, after the consultation, the Attorney-General is satisfied that the execution of the request would not conflict with any of the obligations referred to in subsection (1), the Attorney-General shall sign a certificate stating that the execution of the request does not conflict with any of those obligations.

(3) A certificate signed under subsection (2) shall be conclusive evidence of the matters stated in the certificate.

(4) Where, after the consultation, the Attorney-General is not satisfied, that the execution of the request would not conflict with any of the obligations referred to in subsection (1), the Attorney-General shall postpone the execution of the request unless and until the foreign country has made the necessary waiver or given the necessary consent.

(5) Notwithstanding any other enactment, a request under this Part may be executed in respect of an
offence which was committed prior to the commencement of this Act .

15. Proceedings after arrest
(1) Any person who detains a person under a warrant of arrest or a warrant for his further detention shall, without undue delay, bring that person before a Magistrate of the District Court of Port Louis, whereupon that Magistrate shall hold an enquiry relating to the request for the surrender of that person to the International Criminal Court, in order to establish whether –
(a) the warrant applies to the person in question;
(b) the person has been arrested in accordance with the procedures laid down by the law of Mauritius; and
(c) the rights of the person have been respected.

(2) The Magistrate may, at any time during the enquiry, postpone that enquiry to enable the relevant authorities of Mauritius to have any appropriate consultation on any problem experienced with the execution of any request of the International Criminal Court for co-operation or judicial assistance.

(3) (a) Where, during the enquiry, a challenge is made to the effect that –

(4) (i) the International Criminal Court does not have jurisdiction to deal
with the case;
(ii) the case is being investigated or prosecuted by the competent authorities in Mauritius or any other country;
(iii) the case has been investigated by the competent authorities in Mauritius or any other country and a decision has been made not to institute criminal proceedings against the person concerned;
(iv) the person concerned has already been tried for the conduct which led to the institution of the enquiry;
(v) the case is not of sufficient gravity to justify further action by the International Criminal Court; or
(vi) the person is subject to an agreement under Article 98 of the Statute,
the Magistrate shall record that challenge and may postpone the proceedings pending the decision of the International Criminal Court regarding the challenge.
(b) Where the International Criminal Court rejects the challenge, the Magistrate shall proceed with the enquiry.
(c) In case of competing requests between the International Criminal Court and another State, the matter shall be settled in accordance with Article 90 of the Statute.

(4) Any deposition or statement made under oath, whether or not it was made in the presence of the detained person referred to in subsection (1), any document, record or judgment of conviction or any warrant issued by the International Criminal Court, or any copy or sworn translation, may be received in evidence at any such enquiry, save that a true copy or translation may only be received in evidence if the document is certified as a true copy or translation by a Judge of the International Criminal Court or by a member of the staff of the International Criminal Court authorised by the Judge.

(5) Where, after considering the evidence adduced at the enquiry referred to in subsection (1), the Magistrate is satisfied that the requirements of subsection (1) (a) to (c) have been complied with and that the person concerned may be surrendered to the International Criminal Court –
(a) for prosecution in the International Criminal Court for the alleged crime or offence;
(b) for the imposition of a sentence by the International Criminal Court for the crime or offence in respect of which the person has been convicted; or
(c) to serve a sentence already imposed by the International Criminal Court,
the Magistrate shall issue an order committing that person to prison pending his surrender to the International Criminal Court unless a request for interim release has been granted pursuant to section
16.

(6) The Magistrate issuing the order of committal referred to in subsection (5) or postponing the enquiry referred to in subsection (1), shall immediately forward to the Attorney-General a copy of the order or request for a decision of the International Criminal Court, together with any other necessary report.

(7) The enquiry referred to in this section may be dispensed with if the person concerned agrees in writing to his surrender to the International Criminal Court.

(8) No order for the surrender of any person may be executed –
(a) before the period allowed for an appeal has expired, unless that person has waived his right of appeal in writing; or
(b) before such an appeal has been disposed of.

(9) (a) Any person against whom an order has been issued under subsection (5) may, within 21 days of the date of the order, appeal against such order to the Supreme Court.
(b) On appeal, the Supreme Court may make such order in the matter as it may deem fit.
(c) No order for the surrender of any person may be executed –
(i) before the period allowed for an appeal has expired, unless that person has waived his right of appeal in writing; or
(ii) before such an appeal has been disposed of.

16. Interim release
(1) A person arrested shall have the right to apply to a Magistrate for interim release,
and, on any such application, the Magistrate shall consider whether –
(a) given the gravity of the alleged crime, there are urgent and exceptional circumstances to justify interim release; and
(b) necessary safeguards have been or will be taken to ensure that the person will surrender to the International Criminal Court.

(2) It shall not be open to the Magistrate to consider whether the warrant of arrest was properly issued in accordance with Article 58, paragraph 1(a) and (b) of the Statute.

(3) The Pre-Trial Chamber of the International Criminal Court shall be informed by the Magistrate of any request for interim release and the Magistrate shall give full consideration to any recommendation made by the Pre-Trial Chamber in the matter.

17. Rights of persons during an enquiry
In respect of an enquiry under this Part, every person shall –
(a) not be compelled to incriminate himself or to confess guilt;
(b) not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) if questioned in a language other than a language he fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness;
(d) not be subjected to arbitrary arrest or detention or be deprived of his liberty except on such grounds and in accordance with such procedures as are established in the Statute;
(e) be informed, before being questioned, that there are grounds to believe that he has committed a crime within the jurisdiction of the International Criminal Court;
(f) have the right to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(g) have the right to legal assistance of his choice, or, if he does not have legal assistance, to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; and
(h) have the right to be questioned in the presence of Counsel unless the person has voluntarily waived his right to Counsel.

18. Removal of person surrendered

(1) Any person in respect of whom an order to be surrendered has been made under section 15(5), or who agrees to his surrender, may be removed from Mauritius in the custody of a person authorized by the International Criminal Court to receive him and if the person escapes while being so removed, he may be arrested without a warrant by any person.

(2) Any person who –
(a) while being so removed, escapes or attempts to escape from custody; or
(b) rescues or attempts to rescue from custody any person being so removed,
shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 5 years .

19. Entry into and passage through Mauritius
Any person entering and passing through Mauritius in custody by virtue of a warrant or order issued by the International Criminal Court shall, during his passage through Mauritius, be deemed to be in lawful custody and may be held in any police cell, prison or such other detention facility as may be designated by the Attorney-General.

20. Discharge of person not surrendered

(1) Where the International Criminal Court informs the Attorney-General that a person arrested in terms of this Act is no longer required to be surrendered to it or into the custody of a State for purposes of serving a sentence imposed by the International Criminal Court, as the case may be, the Attorney-General shall inform the Magistrate, who ordered the surrender, accordingly.

(2) The Magistrate concerned shall, on receipt of such notification, immediately cancel any order made issued under section 15(5).

Rome Statute

Article 59 Arrest proceedings in the custodial State

1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.

2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:

(a) The warrant applies to that person;

(b) The person has been arrested in accordance with the proper process; and

(c) The person's rights have been respected.

3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.

4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b).

5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision.

6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release.

7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible.

Article 89 Surrender of persons to the Court

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.