Transfer of sentenced person to State

Australia

International Criminal Court Act No. 41 2002 (2016)

Part 12—Enforcement in Australia of sentences imposed by ICC

Division 2—Transfer to Australia of ICC prisoners


165 Issue of warrant for transfer to Australia

The Attorney General may issue a warrant, by writing in the statutory form, for the transfer of an ICC prisoner to Australia if:

(a) the ICC’s agreement to the enforcement conditions; and
(b) the written consent of the prisoner or his or her representative to the sentence being served in Australia (if the Attorney General considers such consent is necessary); and
(c) the appropriate Ministerial consent to the sentence being served in Australia;
have been obtained.


166 Warrants for transfer to Australia

(1) A warrant for the transfer of an ICC prisoner to Australia authorises the transfer of the prisoner to Australia to serve the sentence of imprisonment imposed by the ICC in accordance with the enforcement conditions.

(2) A warrant must:

(a) specify the name and date of birth of the prisoner to be transferred; and
(b) specify the country from which the prisoner is to be transferred; and
(c) state that:
(i) the ICC’s agreement to the enforcement conditions; and
(ii) the written consent of the prisoner or his or her representative to the sentence being served in Australia (if the Attorney General considers such consent is necessary); and
(iii) the appropriate Ministerial consent to the sentence being served in Australia;
have been obtained.

(3) The warrant is:

(a) to authorise an escort officer to collect the prisoner from a place (whether in Australia or a foreign country) specified in the warrant; and
(b) if the place is in a foreign country—to authorise:
(i) the escort officer to transport the prisoner in custody to Australia for surrender to a person appointed by the Attorney General to receive the prisoner; and
(ii) if appropriate, the appointed person to escort the prisoner to the prison, or hospital or other place, in Australia where the prisoner is to begin to serve the sentence of imprisonment in accordance with this Part; and
(c) if the place is in Australia—to authorise the escort officer to escort the prisoner to the prison, or hospital or other place, in Australia where the prisoner is to begin to serve the sentence of imprisonment in accordance with this Part; and
(d) if the prisoner is to be escorted to a prison—to require the superintendent of the prison to take the prisoner into custody to be dealt with in accordance with this Part; and
(e) if the prisoner is to be escorted to a hospital or other place—to authorise his or her detention in the hospital or place to be dealt with in accordance with this Part.

Note: An ICC prisoner may be transferred from the prison, hospital or other place in the State in which he or she begins to serve a sentence of imprisonment to another prison, hospital or other place in the State or to a prison, hospital or other place in another State (see paragraphs 172(5)(e), (d) and (h)).

(4) The Attorney General may give any direction or approval that is necessary to ensure that the warrant is executed in accordance with its terms.


167 Cancellation of warrant

(1) The Attorney General may cancel a warrant for the transfer of an ICC prisoner to Australia at any time before the prisoner leaves the foreign country in which he or she is being held in custody.

(2) Without limiting the grounds on which the Attorney General may cancel a warrant for the transfer of an ICC prisoner to Australia, it must be cancelled if:

(a) the ICC cancels the designation of Australia or decides not to accept an enforcement condition; or
(b) the Attorney General, the Minister administering the Migration Act 1958 or a State Minister withdraws consent; or
(c) where the consent of the prisoner or his or her representative to the sentence being served in Australia was required by the Attorney General—the prisoner or representative withdraws consent.

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

Part 12—Enforcement in Australia of sentences imposed by ICC

Division 2—Transfer to Australia of ICC prisoners

165 Issue of warrant for transfer to Australia

The Attorney-General may issue a warrant, by writing in the statutory form, for the transfer of an ICC prisoner to Australia if:

the ICC’s agreement to the enforcement conditions; and

the written consent of the prisoner or his or her representative to the sentence being served in Australia (if the Attorney-General considers such consent is necessary); and

the appropriate Ministerial consent to the sentence being served in Australia;
have been obtained.

166 Warrants for transfer to Australia

(1) A warrant for the transfer of an ICC prisoner to Australia authorises the transfer of the prisoner to Australia to serve the sentence of imprisonment imposed by the ICC in accordance with the enforcement conditions.

(2) A warrant must:
specify the name and date of birth of the prisoner to be transferred; and

specify the country from which the prisoner is to be transferred; and
state that:

the ICC’s agreement to the enforcement conditions; and

the written consent of the prisoner or his or her representative to the sentence being served in Australia (if the Attorney-General considers such consent is necessary); and

the appropriate Ministerial consent to the sentence being served in Australia;
have been obtained.

(3) The warrant is:

(a) to authorise an escort officer to collect the prisoner from a place (whether in Australia or a foreign country) specified in the warrant; and

(b) if the place is in a foreign country—to authorise:

the escort officer to transport the prisoner in custody to Australia for surrender to a person appointed by the Attorney-General to receive the prisoner; and

if appropriate, the appointed person to escort the prisoner to the prison, or hospital or other place, in Australia where the prisoner is to begin to serve the sentence of imprisonment in accordance with this Part; and

(c) if the place is in Australia—to authorise the escort officer to escort the prisoner to the prison, or hospital or other place, in Australia where the prisoner is to begin to serve the sentence of imprisonment in accordance with this Part; and

(d) if the prisoner is to be escorted to a prison—to require the superintendent of the prison to take the prisoner into custody to be dealt with in accordance with this Part; and

(e) if the prisoner is to be escorted to a hospital or other place—to authorise his or her detention in the hospital or place to be dealt with in accordance with this Part.
Note: An ICC prisoner may be transferred from the prison, hospital or other place in the State in which he or she begins to serve a sentence of imprisonment to another prison, hospital or other place in the State or to a prison, hospital or other place in another State (see paragraphs 172(5)(e), (d) and (h)).

(4) The Attorney-General may give any direction or approval that is necessary to ensure that the warrant is executed in accordance with its terms.

167 Cancellation of warrant

The Attorney-General may cancel a warrant for the transfer of an ICC prisoner to Australia at any time before the prisoner leaves the foreign country in which he or she is being held in custody.

Without limiting the grounds on which the Attorney-General may cancel a warrant for the transfer of an ICC prisoner to Australia, it must be cancelled if:

Section 167

the ICC cancels the designation of Australia or decides not to accept an enforcement condition; or

the Attorney-General, the Minister administering the Migration Act 1958 or a State Minister withdraws consent; or

where the consent of the prisoner or his or her representative to the sentence being served in Australia was required by the Attorney-General--the prisoner or representative withdraws consent.

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

Part 12—Enforcement in Australia of sentences imposed by ICC

Division 3—Enforcement of sentences

168 Sentence enforcement in Australia

The Attorney-General may determine that a sentence of imprisonment imposed on an ICC prisoner by the ICC be enforced on transfer of the prisoner to Australia under this Part.

Rome Statute

Article 103 Role of States in enforcement of sentences of imprisonment

1.

(a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.

(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.

(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.

2.

(a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.

(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.

3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:

(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;

(b) The application of widely accepted international treaty standards governing the treatment of prisoners;

(c) The views of the sentenced person;

(d) The nationality of the sentenced person;

(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.

4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 104 Change in designation of State of enforcement

1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.

2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.

Article 105 Enforcement of the sentence

1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.

2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.

Article 106 Supervision of enforcement of sentences and conditions of imprisonment

1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.

2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.

3. Communications between a sentenced person and the Court shall be unimpeded and confidential.