Provisional arrest - detention pending surrender

Australia

International Criminal Court Act No. 41 2002 (2016)

Part 3—Requests by the ICC for arrest and surrender of persons

Division 3—Arrest of persons


23 Remand

(1) If a person is arrested under a warrant issued under section 20 or 21, the person executing the warrant must, as soon as practicable after the arrest:

(a) give to the person under arrest a written notice that:
(i) specifies the crime within the jurisdiction of the ICC in respect of which the warrant was issued; and
(ii) describes the conduct that is alleged to constitute that crime; and
(b) bring the person under arrest before a magistrate in the State or Territory in which the arrest took place.

(2) The magistrate must satisfy himself or herself whether:

(a) the person is the person specified in the warrant; and
(b) the person was arrested in accordance with this Act; and
(c) section 131 has been complied with in respect of the arrest.

(3) If the magistrate is not satisfied as to any one or more of the matters mentioned in subsection (2), the magistrate must order the release of the person from custody. However, the making of the order does not prevent the person from being arrested under a further warrant issued under section 20 or 21.

(4) If the magistrate is satisfied as to all the matters mentioned in subsection (2), the magistrate must remand the person in custody or on bail for such period or periods as may be necessary to enable the Attorney General to issue a surrender warrant and, if a surrender warrant is issued, to enable the warrant to be executed.

(5) The magistrate must remand the person in custody unless there are special circumstances justifying remand on bail.

(6) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate must have regard to the following:

(a) the gravity of the alleged crimes within the jurisdiction of the ICC;
(b) whether there are urgent and exceptional circumstances that favour the grant of bail;
(c) whether necessary safeguards exist to ensure that Australia can fulfil its duty under the Statute to surrender the person.

(7) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate may not consider whether any warrant of arrest issued by the ICC was properly issued in accordance with the Statute.


23 Remand

(1) If a person is arrested under a warrant issued under section 20 or 21, the person executing the warrant must, as soon as practicable after the arrest:

(a) give to the person under arrest a written notice that:
specifies the crime within the jurisdiction of the ICC in respect of which the warrant was issued; and
describes the conduct that is alleged to constitute that crime ; and

(b) bring the person under arrest before a magistrate in the State or Territory in which the arrest took place.

(2) The magistrate must satisfy himself or herself whether:

the person is the person specified in the warrant; and

the person was arrested in accordance with this Act; and
section 131 has been complied with in respect of the arrest.

(3) If the magistrate is not satisfied as to any one or more of the matters mentioned in subsection (2),
the magistrate must order the release of the person from custody. However, the making of the order does not prevent the person from being arrested under a further warrant issued under section 20 or 21 .

(4) If the magistrate is satisfied as to all the matters mentioned in subsection (2), the magistrate must remand the person in custody or on bail for such period or periods as may be necessary to enable the Attorney-General to issue a surrender warrant and, if a surrender warrant is issued, to enable the warrant to be executed.

(5) The magistrate must remand the person in custody unless there are special circumstances justifying remand on bail.

(6) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate must have regard to the following:

the gravity of the alleged crimes within the jurisdiction of the ICC;

whether there are urgent and exceptional circumstances that favour the grant of bail;

whether necessary safeguards exist to ensure that Australia can fulfil its duty under the Statute to surrender the person.

(7) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate may not consider whether any warrant of arrest issued by the ICC was properly issued in accordance with the Statute.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 3 Requests by the ICC for arrest and surrender of persons

Division 3—Arrest of persons

23 Remand

(5) The magistrate must remand the person in custody unless there are special circumstances justifying remand on bail.

6) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate must have regard to the following:

the gravity of the alleged crimes within the jurisdiction of the ICC;

whether there are urgent and exceptional circumstances that favour the grant of bail;

whether necessary safeguards exist to ensure that Australia can fulfil its duty under the Statute to surrender the person.

(7) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate may not consider whether any warrant of arrest issued by the ICC was properly issued in accordance with the Statute.

Rome Statute

Article 92 Provisional arrest

1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.