Enforcement of sentences of imprisonment

Australia

Australia - ICC Act 2002 (2016)

Part 1—Preliminary

4 Definitions

ICC prisoner means a person who is to serve, or is serving, a sentence of imprisonment imposed by the ICC.

Part 12—Enforcement in Australia of sentences imposed by ICC

Division 1—Preliminary


160 Australia may agree to act as State of enforcement

(1) The Attorney General may notify the ICC that Australia is willing to allow persons who are ICC prisoners to serve their sentences in Australia subject to such conditions (the enforcement conditions) as Australia imposes and are specified in the instrument of notification.

(2) The enforcement conditions that may be imposed include, but are not limited to:

(a) a condition that, unless the Attorney General determines that it is not necessary in a particular case, the ICC prisoner or his or her representative has consented in writing to the sentence being served in Australia; and
(b) a condition that the appropriate Ministerial consent has been given to the sentence being served in Australia; and
(c) a condition that any appeal or application for revision in respect of the sentence or in respect of the conviction on which it is based has been heard and determined or the period for bringing such an appeal or application has expired; and
(d) a condition that:
(i) on the day of receipt by Australia of the relevant designation under article 103 of the Statute, at least 6 months of the ICC prisoner’s sentence remains to be served; or
(ii) if a shorter period remains to be served on that day, the Attorney General has determined that, in the circumstances, transfer of the ICC prisoner to Australia for a shorter period is acceptable.

(3) The Attorney General may, at any time, notify the ICC that Australia withdraws a condition specified in the instrument of notification referred to in subsection (1).


161 Withdrawal of agreement to act as State of enforcement

(1) If the Attorney General notifies the ICC under section 160, the Attorney General may, at any time, withdraw the notification by notifying the ICC that Australia is no longer willing to allow ICC prisoners to serve their sentences in Australia.

(2) Any notification given under subsection (1) does not affect the enforcement of sentences for which the Attorney General had, before the notification was given, accepted the designation given to Australia by the ICC under section 164.


162 Designation of Australia as place for service of sentence

(1) If:

(a) the Attorney General has given a notification under section 160 and has not withdrawn the notification under section 161; and
(b) the ICC imposes a sentence of imprisonment on a person convicted of a crime within the jurisdiction of the ICC; and
(c) the ICC designates Australia, under article 103 of the Statute, as the country in which the sentence is to be served;
the Attorney General is to consider whether to accept the designation.

(2) Before accepting the designation, the Attorney General may request the ICC to provide the Attorney General with any relevant information that will enable the Attorney General to assess whether the designation should be accepted.


163 Governmental consent to acceptance of designation

(1) Before accepting the designation, the Attorney General is to determine the State in which it would be most appropriate for the ICC prisoner to serve the sentence of imprisonment imposed by the ICC and is to seek the consent of the State Minister concerned.

(2) The Attorney General is to provide the State Minister with particulars of any information that the ICC has given to the Attorney General.

(3) As soon as possible after receiving the particulars, the State Minister is to inform the Attorney General in writing whether the State Minister consents to the sentence being served in the State.

(4) If the State Minister refuses to consent to the sentence being served in the State, the Attorney General may seek the consent of another State Minister to the sentence being served in the State concerned.

(5) If a State Minister consents to the sentence being served in the State, that Minister is to notify the Attorney General of:

(a) the prison, or hospital or other place, in which the ICC prisoner is to serve the sentence in accordance with this Part in the State; and
(b) any other matters that the State Minister considers relevant to the service of the sentence in the State.

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)(c), (d) and (h)).


164 Acceptance of designation

(1) The Attorney General may accept the designation if:

(a) the Attorney General is satisfied that the ICC has agreed to the enforcement conditions; and
(b) in the case of a prisoner who is not an Australian citizen—the Minister administering the Migration Act 1958 has consented to the sentence of imprisonment being served by the ICC prisoner in Australia; and
(c) a State Minister has consented to the sentence of imprisonment being served by the ICC prisoner in the State.

(2) When the Attorney General notifies the ICC of the acceptance of the designation, the Attorney General is also to notify the ICC whether the written consent of the ICC prisoner or his or her representative to the sentence being served in Australia is required and, if such a consent is required, ask the ICC to inform the Attorney General when it has been obtained.

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.


169 Duration and nature of enforced sentence

(1) The sentence of imprisonment to be enforced must not be harsher, in legal nature, than the sentence of imprisonment imposed by the ICC.

(2) Without limiting subsection (1), the sentence to be enforced under this Part:

(a) must not be for a longer duration than the sentence imposed by the ICC; and
(b) must not be of a kind that involves a more severe form of deprivation of liberty than the sentence of imprisonment imposed by the ICC.


170 Directions about enforcement of sentence

(1) The Attorney General may, subject to section 169, give such directions as the Attorney General considers appropriate as to the duration and legal nature of the sentence of imprisonment as it is to be enforced under this Part.

(2) However, a direction reducing the sentence may only be given in accordance with a decision of the ICC under article 110 of the Statute.

(3) Without limiting subsection (1), directions may be given, in respect of a mentally impaired prisoner, as to any review to be undertaken of his or her mental condition and treatment to be provided to him or her following transfer.

(4) For the purpose of forming an opinion or exercising a discretion under this section, the Attorney General may inform himself or herself as he or she thinks fit and, in particular, may have regard to the following:

(a) any relevant decisions of the ICC;
(b) any views expressed by any State Minister concerned with the proposed transfer;
(c) any views expressed by prison authorities of any State;
(d) the legal nature of the sentence of imprisonment that might have been imposed if the acts or omissions constituting the crime within the jurisdiction of the ICC had been committed in Australia;
(e) any limitations or requirements arising under the Statute in relation to the way in which a sentence of imprisonment imposed by the ICC may be enforced in Australia.


171 No appeal or review of sentence of imprisonment imposed by ICC or of sentence enforcement decisions of Attorney General

(1) On transfer of an ICC prisoner to Australia under this Part, no appeal or review lies in Australia against the sentence of imprisonment imposed by the ICC.

(2) No appeal or review lies against a decision of the Attorney General about the enforcement in Australia under this Part of a sentence of imprisonment imposed by the ICC.


172 ICC prisoner transferred to Australia to be regarded as a federal prisoner

(1) For the purpose of enforcement in Australia of a sentence of imprisonment by the ICC, on transfer of the ICC prisoner to Australia under this Part:

(a) the sentence is taken to be a federal sentence of imprisonment; and
(b) the prisoner is taken to be a federal prisoner.

(2) Any period of the sentence of imprisonment as originally imposed by the ICC that was served by the ICC prisoner before the transfer is taken to have been served under the sentence of imprisonment as it is enforced under this Part.

(3) An ICC prisoner who is transferred to Australia under this Part may, while serving a sentence of imprisonment imposed by the ICC that is enforced under this Part, be detained in a prison, or in a hospital or other place, in a State.

(4) Subject to subsection (6), any relevant Australian law, or practice or procedure lawfully observed, about the detention of prisoners applies in relation to the ICC prisoner on or after his or her transfer to Australia to the extent that it is capable of applying concurrently with this Part.

(5) Without limiting subsection (4), Australian law, and practice and procedure, relating to the following matters are applicable to an ICC prisoner who is transferred to Australia under this Part:

(a) conditions of imprisonment and treatment of prisoners;
(b) classification and separation of prisoners;
(c) removal of prisoners from one prison to another;
(d) removal of prisoners between prisons and hospitals or other places or between one hospital or other place and another;
(e) treatment of mentally impaired prisoners;
(f) subject to subsection (6), eligibility for participation in prison programs;
(g) temporary absence from prison (for example, to work or seek work, to attend a funeral or visit a relative suffering a serious illness or to attend a place of education or training);
(h) transfer of prisoners between States.

(6) Australian law, and practice and procedure, relating to release of prisoners on parole or release under a pre release permit scheme (however called) are not applicable to an ICC prisoner who is transferred to Australia under this Part.

Part 1—Preliminary

4 Definitions

In this Act, unless the contrary intention appears:

serve a sentence imposed by the ICC includes complete the service of such a sentence that has been partly served.

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.


169 Duration and nature of enforced sentence

(1) The sentence of imprisonment to be enforced must not be harsher, in legal nature, than the sentence of imprisonment imposed by the ICC.

(2) Without limiting subsection (1), the sentence to be enforced under this Part:
(a) must not be for a longer duration than the sentence imposed by the ICC; and
(b) must not be of a kind that involves a more severe form of deprivation of liberty than the sentence of imprisonment imposed by the ICC.
170 Directions about enforcement of sentence
(1) The Attorney General may, subject to section 169, give such directions as the Attorney General considers appropriate as to the duration and legal nature of the sentence of imprisonment as it is to be enforced under this Part.

(2) However, a direction reducing the sentence may only be given in accordance with a decision of the ICC under article 110 of the Statute.

(3) Without limiting subsection (1), directions may be given, in respect of a mentally impaired prisoner, as to any review to be undertaken of his or her mental condition and treatment to be provided to him or her following transfer.

(4) For the purpose of forming an opinion or exercising a discretion under this section, the Attorney General may inform himself or herself as he or she thinks fit and, in particular, may have regard to the following:
(a) any relevant decisions of the ICC;
(b) any views expressed by any State Minister concerned with the proposed transfer;
(c) any views expressed by prison authorities of any State;
(d) the legal nature of the sentence of imprisonment that might have been imposed if the acts or omissions constituting the crime within the jurisdiction of the ICC had been committed in Australia;
(e) any limitations or requirements arising under the Statute in relation to the way in which a sentence of imprisonment imposed by the ICC may be enforced in Australia.


171 No appeal or review of sentence of imprisonment imposed by ICC or of sentence enforcement decisions of Attorney General

(1) On transfer of an ICC prisoner to Australia under this Part, no appeal or review lies in Australia against the sentence of imprisonment imposed by the ICC.

(2) No appeal or review lies against a decision of the Attorney General about the enforcement in Australia under this Part of a sentence of imprisonment imposed by the ICC.


172 ICC prisoner transferred to Australia to be regarded as a federal prisoner

(1) For the purpose of enforcement in Australia of a sentence of imprisonment by the ICC, on transfer of the ICC prisoner to Australia under this Part:
(a) the sentence is taken to be a federal sentence of imprisonment; and
(b) the prisoner is taken to be a federal prisoner.

(2) Any period of the sentence of imprisonment as originally imposed by the ICC that was served by the ICC prisoner before the transfer is taken to have been served under the sentence of imprisonment as it is enforced under this Part.

(3) An ICC prisoner who is transferred to Australia under this Part may, while serving a sentence of imprisonment imposed by the ICC that is enforced under this Part, be detained in a prison, or in a hospital or other place, in a State.

(4) Subject to subsection (6), any relevant Australian law, or practice or procedure lawfully observed, about the detention of prisoners applies in relation to the ICC prisoner on or after his or her transfer to Australia to the extent that it is capable of applying concurrently with this Part.

(5) Without limiting subsection (4), Australian law, and practice and procedure, relating to the following matters are applicable to an ICC prisoner who is transferred to Australia under this Part:
(a) conditions of imprisonment and treatment of prisoners;
(b) classification and separation of prisoners;
(c) removal of prisoners from one prison to another;
(d) removal of prisoners between prisons and hospitals or other places or between one hospital or other place and another;
(e) treatment of mentally impaired prisoners;
(f) subject to subsection (6), eligibility for participation in prison programs;
(g) temporary absence from prison (for example, to work or seek work, to attend a funeral or visit a relative suffering a serious illness or to attend a place of education or training);
(h) transfer of prisoners between States.

(6) Australian law, and practice and procedure, relating to release of prisoners on parole or release under a pre release permit scheme (however called) are not applicable to an ICC prisoner who is transferred to Australia under this Part.

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

Part 1—Preliminary

4 Definitions

In this Act, unless the contrary intention appears:

...

ICC prisoner means a person who is to serve, or is serving, a sentence of imprisonment imposed by the ICC.

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

Part 1—Preliminary

4 Definitions

In this Act, unless the contrary intention appears:

serve a sentence imposed by the ICC includes complete the service of such a sentence that has been partly served.

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.

169 Duration and nature of enforced sentence

The sentence of imprisonment to be enforced must not be harsher, in legal nature, than the sentence of imprisonment imposed by the ICC.

Without limiting subsection (1), the sentence to be enforced under this Part:

must not be for a longer duration than the sentence imposed by the ICC; and

must not be of a kind that involves a more severe form of deprivation of liberty than the sentence of imprisonment imposed by the ICC.

170 Directions about enforcement of sentence

The Attorney-General may, subject to section 169, give such directions as the Attorney-General considers appropriate as to the duration and legal nature of the sentence of imprisonment as it is to be enforced under this Part.

However, a direction reducing the sentence may only be given in accordance with a decision of the ICC under article 110 of the Statute.

Without limiting subsection (1), directions may be given, in respect of a mentally impaired prisoner, as to any review to be undertaken of his or her mental condition and treatment to be provided to him or her following transfer.

(1) For the purpose of forming an opinion or exercising a discretion under this section, the Attorney-General may inform himself or herself as he or she thinks fit and, in particular, may have regard to the following:

any relevant decisions of the ICC;

any views expressed by any State Minister concerned with the proposed transfer;

any views expressed by prison authorities of any State;

the legal nature of the sentence of imprisonment that might have been imposed if the acts or omissions constituting the crime within the jurisdiction of the ICC had been committed in Australia;

any limitations or requirements arising under the Statute in relation to the way in which a sentence of imprisonment imposed by the ICC may be enforced in Australia.

171 No appeal or review of sentence of imprisonment imposed by ICC or of sentence enforcement decisions of Attorney-General

On transfer of an ICC prisoner to Australia under this Part, no appeal or review lies in Australia against the sentence of imprisonment imposed by the ICC.

No appeal or review lies against a decision of the Attorney-General about the enforcement in Australia under this Part of a sentence of imprisonment imposed by the ICC.

172 ICC prisoner transferred to Australia to be regarded as a federal prisoner

(1) For the purpose of enforcement in Australia of a sentence of imprisonment by the ICC, on transfer of the ICC prisoner to Australia under this Part:

the sentence is taken to be a federal sentence of imprisonment; and

the prisoner is taken to be a federal prisoner.

(2) Any period of the sentence of imprisonment as originally imposed by the ICC that was served by the ICC prisoner before the transfer is taken to have been served under the sentence of imprisonment as it is enforced under this Part.

(3) An ICC prisoner who is transferred to Australia under this Part may, while serving a sentence of imprisonment imposed by the ICC that is enforced under this Part, be detained in a prison, or in a hospital or other place, in a State.

(4) Subject to subsection (6), any relevant Australian law, or practice or procedure lawfully observed, about the detention of prisoners applies in relation to the ICC prisoner on or after his or her transfer to Australia to the extent that it is capable of applying concurrently with this Part.

(5) Without limiting subsection (4), Australian law, and practice and procedure, relating to the following matters are applicable to an ICC prisoner who is transferred to Australia under this Part:

conditions of imprisonment and treatment of prisoners;

classification and separation of prisoners;

removal of prisoners from one prison to another;

removal of prisoners between prisons and hospitals or other places or between one hospital or other place and another;

treatment of mentally impaired prisoners;

subject to subsection (6), eligibility for participation in prison programs;

temporary absence from prison (for example, to work or seek work, to attend a funeral or visit a relative suffering a serious illness or to attend a place of education or training);

transfer of prisoners between States.

(6) Australian law, and practice and procedure, relating to release of prisoners on parole or release under a pre-release permit scheme (however called) are not applicable to an ICC prisoner who is transferred 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 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.