Temporary transfer of persons in custody for purposes of identification or for obtaining testimony or other forms of assistance - national procedures for ICC proceedings

Mauritius

International Criminal Court Act 2011

PART V – CO-OPERATION AND JUDICIAL ASSISTANCE

21. Areas of co-operation and judicial assistance

(1)

(f) the temporary transfer of persons in custody for purposes of identification or for obtaining testimony or other assistance

Mutual Assistance in Criminal and Related Matters Act 2003

PART II - REQUESTS

4. Request from Mauritius

(2) A request under subsection (1) may require the foreign State or, as the case may be, the international criminal tribunal, to provide such assistance as may be specified in the request and, in particular to -

(l) transfer in custody to Mauritius a person detained in the foreign State, or by the international criminal tribunal, who consents to give evidence or to assist Mauritius in the proceedings ;

PART III - FORMS OF MUTUAL ASSISTANCE

9. Safe conduct guarantee

(1) Subject to subsection (2), where a person, whether or not a detained person, is in Mauritius, pursuant to a request by the Central Authority under section 4(2)(l), to give evidence or to assist in any proceedings, the person shall not, while in Mauritius, be -

(a) detained, prosecuted, punished or subjected to any other restriction of personal liberty ; or
(b) subjected to civil process, in respect of any act or omission that occurred before the person’s departure from the foreign State, or international criminal tribunal, pursuant to the request.

(2) The person specified in subsection (1) shall not, without his consent, be required to give evidence in any proceedings other than those to which the request relates.

(3) Subsection (1) shall not apply to the person where he -

(a) leaves Mauritius and subsequently returns voluntarily to Mauritius ; and
(b) has had the opportunity to leave Mauritius but remains in Mauritius for more than 10 days after the Central Authority has notified him that he is no longer required for the purposes of the request.

PART III - FORMS OF MUTUAL ASSISTANCE

10. Foreign request for consensual transfer of detained persons from Mauritius

(1) Where the Central Authority approves a request under section 5 to have a person, who is detained in custody in Mauritius by virtue of a sentence or order of a court, transferred to a foreign State or to an international criminal tribunal to give evidence, or otherwise assist in any proceedings, he may apply to a Judge in Chambers for a transfer order.

(2) The Judge in Chambers may make a transfer order under this section where he is satisfied, after having considered any document filed or information given in support of the application, that the detained person consents to the transfer.

(3) A transfer order made under subsection (2) shall-

(a) set out the name of the detained person and his current place of confinement ;
(b) order the person who has custody of the detained person to deliver him into the custody of a person designated in the order ;
(c) order the person receiving him into custody to take him to the foreign State, or to the international criminal tribunal, as the case may be, and, on return of the detained person to Mauritius, to return that person to a place of confinement in Mauritius specified in the order, unless the person is no longer required to be held in custody ;
(d) state the reasons for the transfer ; and
(e) fix the time within which the detained person has to be returned.

(4) The time spent in custody by a person pursuant to a transfer order shall count toward any sentence required to be served by that person, so long as the person remains in such custody and is of good behaviour.

PART III - FORMS OF MUTUAL ASSISTANCE

8. Request for transfer of detained persons to Mauritius

(1) Where a foreign State or an international criminal tribunal grants a request made by Mauritius under section 4(2)(l), the Central Authority may, by written notice addressed to the Commissioner of Prisons, authorise -

(a) the temporary detention in Mauritius, for such period as may be specified in the notice, of a person detained in a foreign State, or by an international criminal tribunal, who is to be transferred to Mauritius ; and
(b) the return in custody of the person to the foreign State, or international criminal tribunal, when his presence is no longer required.

(2) A person in respect of whom a notice is issued under subsection (1) shall, so long as the notice is in force -

(a) be permitted to enter and remain in Mauritius for the purposes of the request, and be required to leave Mauritius when no longer required for those purposes ; and
(b) while in custody in Mauritius for the purposes of the request, be deemed to be in lawful custody for the purposes of section 170 of the Criminal Code.

(3) The Central Authority may, at any time, vary a notice issued under subsection (1), and where the foreign State, or the international criminal tribunal, agrees to the release of the person from custody, either immediately or on a specified date, the Central Authority shall direct that the person be released from custody accordingly.

(4) Any person who escapes from lawful custody while in Mauritius pursuant to subsection (1) may be arrested without warrant and returned to the custody authorised under subsection (1)(a).

9. Safe conduct guarantee

(1) Subject to subsection (2), where a person, whether or not a detained person, is in Mauritius, pursuant to a request by the Central Authority under section 4(2)(l), to give evidence or to assist in any proceedings, the person shall not, while in Mauritius, be -

(a) detained, prosecuted, punished or subjected to any other restriction of personal liberty ; or
(b) subjected to civil process, in respect of any act or omission that occurred before the person’s departure from the foreign State, or international criminal tribunal, pursuant to the request.

(2) The person specified in subsection (1) shall not, without his consent, be required to give evidence in any proceedings other than those to which the request relates.

(3) Subsection (1) shall not apply to the person where he -

(a) leaves Mauritius and subsequently returns voluntarily to Mauritius ; and
(b) has had the opportunity to leave Mauritius but remains in Mauritius for more than 10 days after the Central Authority has notified him that he is no longer required for the purposes of the request.

10. Foreign request for consensual transfer of detained persons from Mauritius

(1) Where the Central Authority approves a request under section 5 to have a person, who is detained in custody in Mauritius by virtue of a sentence or order of a court, transferred to a foreign State or to an international criminal tribunal to give evidence, or otherwise assist in any proceedings, he may apply to a Judge in Chambers for a transfer order.

(2) The Judge in Chambers may make a transfer order under this section where he is satisfied, after having considered any document filed or information given in support of the application, that the detained person consents to the transfer.

(3) A transfer order made under subsection (2) shall-

(a) set out the name of the detained person and his current place of confinement ;
(b) order the person who has custody of the detained person to deliver him into the custody of a person designated in the order ;
(c) order the person receiving him into custody to take him to the foreign State, or to the international criminal tribunal, as the case may be, and, on return of the detained person to Mauritius, to return that person to a place of confinement in Mauritius specified in the order, unless the person is no longer required to be held in custody ;
(d) state the reasons for the transfer ; and
(e) fix the time within which the detained person has to be returned.

(4) The time spent in custody by a person pursuant to a transfer order shall count toward any sentence required to be served by that person, so long as the person remains in such custody and is of good behaviour.

Rome Statute

Article 93 Other forms of cooperation

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:

(f) The temporary transfer of persons as provided in paragraph 7;

7.

(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.