Part 5
Other Requests

50.—
(2) Subject to section 4, the Minister may, in pursuance of a request from the International Criminal Court under Article 93.1(a) for assistance in obtaining identification evidence, send the request to the Commissioner of the Garda Síochána for necessary action, if satisfied as to the matters mentioned in subsection (3).

(3) The matters referred to in subsection (2) are—

(a) that any identification evidence provided will be used only for the investigation or prosecution of an ICC offence, and
(b) that the evidence—

(i) will be returned by the Court when no longer required for that purpose, unless the Minister indicates otherwise, or
(ii) will be dealt with in accordance with subsections (12) and (13).

(4) If or in so far as the identification evidence requested is not in the possession of the Garda Síochána, the Commissioner shall instruct a member of the Garda Síochána (a “member”) to inform the person who is to provide the evidence—

(a) of the nature of the evidence,
(b) that it has been requested by the International Criminal Court in connection with the investigation or prosecution of an offence within its jurisdiction,
(c) that he or she is not obliged to provide the evidence, and
(d) that, if he or she does consent to provide it, it may be given in evidence in proceedings before the Court.

(5) If the person consents to provide the evidence, the member may take the evidence, or cause it to be taken, in compliance with the request and any requirements specified in the request in relation to its taking.

(6) If a person who is to provide the identification evidence is in custody—

(a) evidence may be taken under this section only if it relates to an offence other than that for which the person is in custody, and
(b) any evidence provided may be taken where the person is in custody or at another place.

(7) A bodily sample consisting of blood, pubic hair or a swab from a body orifice (other than the mouth) or a genital region may be taken under this section only by a doctor, and a dental impression may be so taken only by a dentist or doctor.

(8) If required by the Court, the Commissioner may arrange for a forensic test to be performed on a swab from a body orifice or a genital region.

(9) A sample of hair other than pubic hair may be taken under this section by cutting hairs or by plucking hairs singly with their roots and, where hairs are plucked, no more shall be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample for the purpose of forensic testing or comparison purposes.

(10) The following particulars shall be recorded by the member who takes identification evidence—

(a) the place, time and date at which it was taken,
(b) the result of any forensic test on the evidence,
(c) any other relevant particulars, including any specified by the Court,

and the record shall include a copy of the consent to the taking of the evidence.

(11) The Commissioner shall send to the Minister any identification evidence—

(a) in the possession of the Garda Síochána, or
(b) taken under subsection (5), together with a copy of the record made under subsection (10),
for transmission to the Court.

(12) When transmitting the identification evidence and record to the Court the Minister shall, if subsection (3) (b) (i) does not apply and subject to subsection (13), obtain an assurance that the evidence will be destroyed—

(a) if the person the subject of the investigation is not prosecuted, on the expiration of 12 months from the taking of the evidence, unless the failure to prosecute is due to the fact that the person has absconded or cannot be found, or
(b) if the person is prosecuted and is acquitted or discharged or the proceedings are discontinued, on the expiration of 21 days thereafter.

(13) The Minister may, at the request of the Court and having consulted the Director of Public Prosecutions, direct that any period mentioned in subsection (12) be extended for good reason.

Part 5
Other Requests

51.—
(1) If, in accordance with paragraphs (a), (g) and (i) of Article 93, the International Criminal Court requests assistance in relation to—

(a) locating persons or identifying or locating items of property,
(b) examining places or sites, including the exhumation and examination of grave sites, or
(c) providing records or other documents,

the Minister shall, subject to section 4 and subsection (2), send the request to the Commissioner of the Garda Síochána, and the Commissioner shall arrange for compliance with it.

(2) The Minister shall not proceed in accordance with subsection (1) unless the Court undertakes—

(a) that any material that may be furnished in response to the request will not, without the Minister’s consent, be used for any purpose other than that specified in the request, and
(b) that the material will be returned when no longer required for the purpose so specified (or any other purpose for which such consent has been obtained), unless the Minister indicates that its return is not required.

(3) The Commissioner shall report to the Minister on the outcome of the action taken by the Garda Síochána on the request, and the Minister shall transmit the report to the International Criminal Court.

(4) A member of the Garda Síochána shall not enter any premises or place in furtherance of the request without the consent of the occupier or a warrant or an order under this section authorising the entry.

(5) A judge of the District Court, on production by a member of the Garda Síochána of a copy of the request from the International Criminal Court and of any accompanying documents, may issue a warrant for the search of any premises or place if satisfied that there are reasonable grounds for believing—

(a) that entry to the premises or place is necessary for the purposes of complying with the request, and

(b) that the occupier thereof either—

(i) has not consented to the entry, or
(ii) is unlikely in the circumstances of the case to consent and that seeking consent might seriously prejudice compliance with the request.

(6) (a) This subsection applies where—

(i) the request relates to particular material or material of a particular description, and
(ii) it appears to the judge that there are reasonable grounds for believing—

(I) that the person named in the request possesses the material, and
(II) that he or she has not agreed to produce it or is unlikely in the circumstances of the case to do so

and, in the latter case, that seeking consent might seriously prejudice compliance with the request.

(b) Where this subsection applies, the judge may order that the person named in the request shall, on production by a member of the Garda Síochána of a copy of the order—

(i) produce the material to the member for the member to take away, or
(ii) give the member access to the material within the period specified in the order.

(c) The order shall also provide that in default of compliance a member of the Garda Síochána shall search the premises concerned, and for that purpose the member may exercise the powers of search given by subsection (7).

(d) The judge may vary or discharge the order.

(7) A warrant under subsection (5) shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other persons as may be necessary and on production of the warrant—

(a) to enter, within 7 days after the date of issue of the warrant, the premises or place named in the
warrant, if necessary by the use of reasonable force,
(b) to search the premises or place and any person found there,
(c) where necessary to comply with the request and subject to subsection (12), to excavate the place or any part of it,
(d) to examine, seize and retain any material or other thing found there, or in the possession of a person present there at the time of the search, which the member reasonably believes to be evidence of or relating to the commission of an ICC offence or whose retention is necessary to comply with the request, and
(e) to take such other steps as appear to the member to be necessary for preserving any such material or thing and preventing interference with it.

(8) Where material referred to in subsection (6) or (7) (d) consists of material in non-legible form, the warrant or order shall have effect as an order to produce the material, or give access to it, in a form which is legible and in which it can be taken away.

(9) A warrant or an order under this section—

(a) does not confer any right to examine, seize or retain documents—

(i) which in the Minister’s opinion are prejudicial to the security of the State, or
(ii) which are subject to legal privilege,

or to have the documents produced or to be given access to them, and

(b) subject to paragraph (a) and subsection (10), has effect notwithstanding any obligation as to secrecy or other restriction on the disclosure of information imposed under any enactment or rule of law.

(10) Where the Court requests disclosure of any information or document which has been supplied in confidence to a Government department or other authority by or on behalf of the government of another state, the Minister shall in accordance with Article 73 (third- party information or documents)—

(a) if that state is a party to the Statute, either consent to disclosure or undertake to resolve the issue of disclosure with the Court, subject to Article 72 (protection of national security information), or
(b) in any other case, inform the Court that it is unable to provide the document or information because of the obligation of confidentiality to that government.

(11) A person who obstructs or hinders a member of the Garda Síochána in the conduct of a search under this section is guilty of an offence and liable on summary conviction to a fine not exceeding 1,500 or imprisonment for a period of 6 months or both.

(12) (a) A body may not be exhumed by the Garda Síochána from a place named in the warrant without an authorisation to

(b) On such an exhumation the coroner concerned shall have the like powers and duties as if the body had not been buried.

(13) Any material seized or obtained by virtue of this section may, subject to section 4, be transmitted to the International Criminal Court in accordance with the directions of the Minister, given after consultation with it.

(14) Where material obtained in response to the request consists of a document, the original or a copy shall be transmitted to the International Criminal Court and, where the material consists of any other article, the article itself or a description, photograph or other representation of it shall be so transmitted.

(15) For the purposes of obtaining any information that is necessary to comply with a request from the International Criminal Court for assistance in locating persons, the Commissioner of the Garda Síochána, if of opinion that there is information as to the whereabouts or place of work of those persons in the possession or procurement of any person or body, may serve a notice on the person or body, requiring the person or body to provide in writing any such information within such time as may be specified in the notice.

(16) A person shall not be prevented from complying with such a notice by any enactment or rule of law preventing or restricting the disclosure of information (except information which in the Minister’s opinion is prejudicial to the security of the State or which is subject to legal privilege).

(17) A person or body who or which does not, without reasonable excuse, comply with such a notice is guilty of an offence and liable on summary conviction to a fine not exceeding 3,000 or imprisonment for a term not exceeding 12 months or both.