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

Australia

Australia - ICC Act 2002 (2016)

Part 4—Other requests by ICC

Division 9—Temporary transfer of prisoners to the ICC


74 Prisoners assisting investigation or giving evidence

(1) This section applies if:

(a) the ICC requests assistance in facilitating the temporary transfer of a person to the ICC; and
(b) the person is a prisoner who is in Australia (whether or not in custody); and
(c) the Attorney General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the prisoner’s attendance is requested for the purpose of assisting the investigation or giving evidence at the proceeding; and
(iii) the prisoner has consented in writing to assisting the investigation or giving evidence at the proceeding; and
(iv) the prisoner will be returned without delay by the ICC to Australia when the purposes of the transfer have been fulfilled.

(2) If the prisoner is being held in custody, the Attorney General is to execute the request by:

(a) if the prisoner is a federal prisoner and is not also a State prisoner—directing that the prisoner be released from prison for the purpose of travelling to the ICC to assist the investigation or give evidence at the proceeding; or
(b) if the prisoner is a federal prisoner and also a State prisoner—directing, subject to the obtaining of any approvals required to be obtained from an authority of the relevant State, that the prisoner be released from prison for the purpose of such travel; or
(c) if the prisoner is a State prisoner and is not also a federal prisoner—seeking any approvals required to be obtained from an authority of the relevant State;
and, in any case, subject to the giving of any necessary directions or the obtaining of any necessary approvals relevant to release of the prisoner, making arrangements for such travel in the custody of a police officer, or prison officer, appointed by the Attorney General for the purpose.

(3) If the prisoner, having been released from custody on parole, is not being held in custody, the Attorney General is to execute the request by:

(a) if the prisoner is a federal prisoner and is not also a State prisoner:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) obtaining such parole decisions as may be required; or
(b) if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any parole decisions required to be obtained from an authority of the relevant State:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) obtaining such parole decisions as may be required; or
(c) if the prisoner is a State prisoner and is not also a federal prisoner:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) seeking such parole decisions under the law of the relevant State as may be required;
and, in any case, subject to the obtaining of any necessary parole decisions, making arrangements for the travel of the prisoner to the ICC.

(4) In this section:
parole includes any order or licence to be at large.
parole decision means any approval, authority or permission relating to parole, and includes any variation of parole.


75 Effect of removal to foreign country on prisoners’ terms of imprisonment

A person who is serving a sentence of imprisonment for an offence against a law of the Commonwealth or of a Territory, or is otherwise subject to detention under a law of the Commonwealth or of a Territory, is taken to continue to serve that sentence of imprisonment, or to continue to be subject to that detention, at any time during which the person:

(a) is released from a prison under section 74 pursuant to a request by the ICC; and
(b) is in custody in connection with the request (including custody outside Australia).

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

Part 4 Other requests by ICC

Division 9—Temporary transfer of prisoners to the ICC

74 Prisoners assisting investigation or giving evidence

(1) This section applies if:
the ICC requests assistance in facilitating the temporary transfer of a person to the ICC; and

the person is a prisoner who is in Australia (whether or not in custody); and
the Attorney-General is satisfied that:

the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and

the prisoner’s attendance is requested for the purpose of assisting the investigation or giving evidence at the proceeding; and

the prisoner has consented in writing to assisting the investigation or giving evidence at the proceeding; and

the prisoner will be returned without delay by the ICC to Australia when the purposes of the transfer have been fulfilled.

(2) If the prisoner is being held in custody, the Attorney-General is to execute the request by:

if the prisoner is a federal prisoner and is not also a State prisoner—directing that the prisoner be released from prison for the purpose of travelling to the ICC to assist the investigation or give evidence at the proceeding; or

if the prisoner is a federal prisoner and also a State prisoner—directing, subject to the obtaining of any approvals required to be obtained from an authority of the relevant State, that the prisoner be released from prison for the purpose of such travel; or

if the prisoner is a State prisoner and is not also a federal prisoner—seeking any approvals required to be obtained from an authority of the relevant State;

and, in any case, subject to the giving of any necessary directions or the obtaining of any necessary approvals relevant to release of the prisoner, making arrangements for such travel in the custody of
a police officer, or prison officer, appointed by the Attorney-General for the purpose.

(3) If the prisoner, having been released from custody on parole, is not being held in custody, the Attorney-General is to execute the request by:

(a) if the prisoner is a federal prisoner and is not also a State prisoner:
approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and

obtaining such parole decisions as may be required; or

(b) if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any parole decisions required to be obtained from an authority of the relevant State:

approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and

obtaining such parole decisions as may be required; or

(c) if the prisoner is a State prisoner and is not also a federal prisoner:

approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and

seeking such parole decisions under the law of the relevant State as may be required;

and, in any case, subject to the obtaining of any necessary parole decisions, making arrangements for the travel of the prisoner to the ICC.

(4) In this section:

parole includes any order or licence to be at large.

parole decision means any approval, authority or permission relating to parole, and includes any variation of parole.

75 Effect of removal to foreign country on prisoners’ terms of imprisonment

A person who is serving a sentence of imprisonment for an offence against a law of the Commonwealth or of a Territory, or is otherwise subject to detention under a law of the Commonwealth or of a Territory, is taken to continue to serve that sentence of imprisonment, or to continue to be subject to that detention, at any time during which the person:

is released from a prison under section 74 pursuant to a request by the ICC; and

is in custody in connection with the request (including custody outside Australia).

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.