Provisional arrest

Australia

Australia - ICC Act 2002 (2016)

Part 2—General provisions relating to requests by the ICC for cooperation

9 Urgent requests for cooperation and requests for provisional arrest

(1) A request for cooperation made in urgent cases, and any request for provisional arrest, may be made by using any medium capable of delivering a written record.

(2) If a request is made or sent in the first instance in a manner specified in subsection (1), it must be followed as soon as practicable by a formal request made in accordance with section 8.

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

Division 3—Arrest of persons


21 Arrest following request for provisional arrest

(1) Subject to section 22, if:

(a) the Attorney General receives a request for provisional arrest of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney General issues such a notice, a magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(3) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.

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

Division 3—Arrest of persons


20 Arrest following request for arrest and surrender

(1) Subject to section 22, if:

(a) the Attorney General receives a request for arrest and surrender of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.

(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(4) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.


21 Arrest following request for provisional arrest

(1) Subject to section 22, if:

(a) the Attorney General receives a request for provisional arrest of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney General issues such a notice, a magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(3) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.


22 Certificate by Attorney General

The Attorney General must not issue a notice under section 20 or 21 after receipt of a request for the arrest and surrender, or for the provisional arrest, of a person for a crime unless the Attorney General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.


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.


24 Procedure following application for bail

(1) If an application for bail is made, the Attorney General must notify the ICC.

(2) The Attorney General must give to the magistrate who is considering the application the recommendations made by the ICC in relation to the application.

(3) Before giving a decision, the magistrate must consider the recommendations that the ICC has made, including any recommendations or measures to prevent the escape of the person.

(4) If the person is granted bail, the Attorney General must, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.

(5) This section applies with any necessary modifications to any application for bail made during the period until the person is surrendered or is released according to law.


25 Release from remand on the Attorney General’s direction

(1) The Attorney General must, by written notice in the statutory form, direct a magistrate to order the release from custody of a person remanded under this Division, or the discharge of the recognisances on which bail was granted to the person, as the case requires, if:

(a) where the person was remanded following the receipt of a request for provisional arrest—a request for surrender of the person has not been duly received within 60 days after the day on which the person was arrested and the person does not consent to surrender; or
(b) in any case—after considering the matters mentioned in subsection 23(6), the Attorney General considers for any other reason that the remand should cease.

(2) The making by a magistrate of an order under subsection (1) following a direction by the Attorney General does not prevent the person from being arrested and remanded pursuant to a further request for arrest and surrender of the person received after the making of the order.


26 Release from remand after certain periods

(1) A person must be brought before a magistrate if:

(a) the person was arrested under a warrant issued under subsection 21(2); and
(b) the person is, under this Division, on remand 60 days after the day on which the person was arrested; and
(c) a notice has not been given under subsection 20(1) in relation to the person.

(2) Unless the magistrate is satisfied that such a notice is likely to be given within a particular period that is reasonable in all the circumstances, the magistrate must:

(a) order the release of the person from custody; or
(b) order the discharge of the recognisances on which bail was granted to the person;
as the case requires.

(3) If a magistrate was satisfied under subsection (2) that such a notice was likely to be given in relation to the person within a particular period but the notice is not given within the period:

(a) the person must be brought before a magistrate; and
(b) the magistrate must:
(i) order the release of the person from custody; or
(ii) order the discharge of the recognisances on which bail was granted to the person;
as the case requires.


27 Application for search warrants

(1) If:

(a) a person is arrested under a warrant issued under section 20 or 21; and
(b) a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;
the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the premises to search for that material.

(2) If:

(a) a person is arrested under a warrant issued under section 20 or 21; and
(b) a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;
the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the person to search for the material.

(3) For the purposes of this section, the applicable period is:

(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.

Note: Part 6 deals with search warrants.

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

Division 2—Documentation to accompany request


19 Documentation for request for provisional arrest
If a request is made for provisional arrest of a person, the request must contain or be supported by:
(a) information describing the person sought, being information sufficient to identify the person; and
(b) information as to the person’s probable location; and
(c) a concise statement of:
(i) the crimes within the jurisdiction of the ICC for which the person’s arrest is requested; and
(ii) the facts that are alleged to constitute those crimes, including, where possible, the dates when, and the locations at which, the crimes are alleged to have been committed; and
(d) a statement of the existence of a warrant of arrest, or of a judgment of conviction, against the person sought; and
(e) a statement that a request for surrender of the person will follow.

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

Part 2—General provisions relating to requests by the ICC for cooperation

9 Urgent requests for cooperation and requests for provisional arrest
A request for cooperation made in urgent cases, and any request for provisional arrest, may be made by using any medium capable of delivering a written record.

If a request is made or sent in the first instance in a manner specified in subsection (1), it must be followed as soon as practicable by a formal request made in accordance with section 8.

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 2 Documentation to Cover Request

19 Documentation for request for provisional arrest

If a request is made for provisional arrest of a person, the request must contain or be supported by:

(a) information describing the person sought, being information sufficient to identify the person; and

(b) information as to the person’s probable location; and

(c) a concise statement of:

the crimes within the jurisdiction of the ICC for which the person’s arrest is requested; and

the facts that are alleged to constitute those crimes, including, where possible, the dates when, and the locations at which, the crimes are alleged to have been committed; and

(d) a statement of the existence of a warrant of arrest, or of a judgment of conviction, against the person sought; and

(e) a statement that a request for surrender of the person will follow.

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

21 Arrest following request for provisional arrest

(1) Subject to section 22, if:

the Attorney-General receives a request for provisional arrest of a person; and
Division 2 has been complied with in respect of the request;

the Attorney-General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney-General issues such a notice, a magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(3) After the warrant has been issued, the magistrate must without delay send to the Attorney-General a report stating that the magistrate has issued the warrant.

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

20 Arrest following request for arrest and surrender

(1) Subject to section 22, if:

the Attorney-General receives a request for arrest and surrender of a person; and
Division 2 has been complied with in respect of the request;

the Attorney-General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney-General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.

(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(4) After the warrant has been issued, the magistrate must without delay send to the Attorney-General a report stating that the magistrate has issued the warrant.

21 Arrest following request for provisional arrest

(1) Subject to section 22, if:
the Attorney-General receives a request for provisional arrest of a person; and
Division 2 has been complied with in respect of the request;

the Attorney-General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney-General issues such a notice, a magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(3) After the warrant has been issued, the magistrate must without delay send to the Attorney-General a report stating that the magistrate has issued the warrant.

22 Certificate by Attorney-General

The Attorney-General must not issue a notice under section 20 or 21 after receipt of a request for the arrest and surrender, or for the provisional arrest, of a person for a crime unless the Attorney-General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.

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.

24 Procedure following application for bail

If an application for bail is made, the Attorney-General must notify the ICC.

The Attorney-General must give to the magistrate who is considering the application the recommendations made by the ICC in relation to the application.

Before giving a decision, the magistrate must consider the recommendations that the ICC has made, including any recommendations or measures to prevent the escape of the person.

If the person is granted bail, the Attorney-General must, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.

This section applies with any necessary modifications to any application for bail made during the period until the person is surrendered or is released according to law.

25 Release from remand on the Attorney-General’s direction

(1) The Attorney-General must, by written notice in the statutory form, direct a magistrate to order the release from custody of a person remanded under this Division, or the discharge of the recognisances on which bail was granted to the person, as the case requires, if:

where the person was remanded following the receipt of a request for provisional arrest—a request for surrender of the person has not been duly received within 60 days after the day on which the person was arrested and the person does not consent to surrender; or

in any case—after considering the matters mentioned in subsection 23(6), the Attorney-General considers for any other reason that the remand should cease.

(2) The making by a magistrate of an order under subsection (1) following a direction by the Attorney-General does not prevent the person from being arrested and remanded pursuant to a further request for arrest and surrender of the person received after the making of the order .

26 Release from remand after certain periods

(1) A person must be brought before a magistrate if:

the person was arrested under a warrant issued under subsection 21(2); and

the person is, under this Division, on remand 60 days after the day on which the person was arrested; and

a notice has not been given under subsection 20(1) in relation to the person.

(2) Unless the magistrate is satisfied that such a notice is likely to be given within a particular period that is reasonable in all the circumstances, the magistrate must:

order the release of the person from custody; or

order the discharge of the recognisances on which bail was granted to the person;
as the case requires.

(3) If a magistrate was satisfied under subsection (2) that such a notice was likely to be given in relation to the person within a particular period but the notice is not given within the period:
the person must be brought before a magistrate; and the magistrate must:

order the release of the person from custody; or

order the discharge of the recognisances on which bail was granted to the person;

as the case requires .

27 Application for search warrants

(1) If:
a person is arrested under a warrant issued under section 20 or 21; and

a police officer has reasonable grounds for suspecting that evidential material relating to a crime within

the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;

the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the premises to search for that material.

(2) If:

a person is arrested under a warrant issued under section 20 or 21; and

a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;

the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the person to search for the material.

(3) For the purposes of this section, the applicable period is:

if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116- 48 hours; or

otherwise-72 hours.

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 4—Surrender of persons

45 Release from remand

(1) If: a surrender warrant has been issued in relation to a person; and

the person is in custody in Australia under the warrant, or otherwise under this Act, more than 21 days after the day on which the warrant was first liable to be executed; and

the person applies to the Supreme Court of the State or Territory in which the person is in custody; and

reasonable notice of the intention to apply has been given to the Attorney-General;

the Court must, subject to subsection (2), order that the person be released from that custody.

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.

2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:

(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;

(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;

(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and

(d) A statement that a request for surrender of the person sought will follow.

3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.

4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.