PART V
REQUESTS FOR OTHER TYPES OF ASSISTANCE


55. Application of this Part -

This Part of the Act applies to requests for assistance by the ICC, other than requests for arrest and surrender, or the provisional arrest, of a person.


56. Assistance in locating or identifying persons or items -

(1) Where the ICC requests assistance in locating, or identifying and locating, a person or an item believed to be in Samoa, the Minister shall give authority for the request to proceed and transmit the request to the Attorney General, if the Minister has reasonable grounds to believe the person to whom or the item to which the request relates is, or may be in Samoa.

(2) Where the Minister authorises and transmits the request under subsection (1), the Attorney General shall, without delay -

(a) use its best endeavours to locate or, as the case may be, identify and locate, the person to whom or item to which the request relates; and
(b) advise the Minister of the outcome of those endeavours.

(3) This section shall not be construed as giving any person a power to enter property in order to locate a person or item.


57. Assistance in taking evidence -

(1) Where the ICC requests assistance in the taking of evidence, the Minister shall give authority for the request to proceed and transmit the request to a Judge, if the Minister has reasonable grounds to believe that the evidence can be taken in Samoa.

(2) Where the Minister authorises and transmits the request under subsection (1), the Judge shall issue an order compelling the witness to appear at a specified time and place for the person’s evidence to be taken.

(3) The Judge shall, if the ICC so requests, permit a representative of the ICC or a representative of the person to whom the request relates to be present at the taking of the evidence and to put questions to the witness.

(4) In taking evidence under this section, the Judge shall do so in the manner specified in the request for assistance made by the ICC and in accordance with the procedure stipulated under Samoan law.

(5) The Judge taking evidence under this section shall -

(a) certify that the evidence was taken before the Judge and that the persons named in the certificate were present when the evidence was taken; and
(b) cause the evidence together with the certificate to be transmitted to the Minister.


58. Assistance in production of documents and articles -

(1) Where the ICC requests assistance in the production of documents or articles the Minister shall give authority for the request to proceed and transmit the request to a Judge, if the Minister has reasonable grounds to believe that the documents or articles can be produced in Samoa.

(2) Where the Minister authorises and transmits the request under subsection (1), the Judge shall issue an order for the production of the documents or articles.

(3) The order may provide for any form of certification or authentication of the document or article as may be required by the ICC and may specify any other terms and conditions that may be appropriate in the circumstances.

(4) Where the documents and articles are produced duly authenticated or certified as required by the order made under subsection (3), the Judge shall cause them to be sent to the Minister, with a written statement signed by the Judge that they were produced to the Judge.


59. Applicable law -

(1) The applicable law for the taking of evidence under section 57 or the production of documents or articles under section 58 shall be the Statute and Rules unless the Judge orders that the evidence shall be taken in accordance with the laws of Samoa.

(2) Notwithstanding subsection (1), a person compelled to give evidence or produce documents shall have the same privileges as if the investigation or proceeding was conducted under the laws of Samoa and the laws of Samoa relating to the non-disclosure of information, including national security information, shall apply.

(3) Nothing in subsection (1) shall be construed as requiring a person to give evidence or answer any question or produce any document or article that the person could not be compelled to give or answer or produce in an investigation being conducted by the Prosecutor or in any proceedings before the ICC.


60. Assistance in questioning persons -

(1) Where the ICC requests assistance in questioning a person who is being investigated or prosecuted by the ICC, the Minister shall give authority for the request to proceed and transmit the request to the Attorney General if the Minister has reasonable grounds to believe that the person is or may be in Samoa.

(2) Where the Minister authorises and transmits the request under subsection (1), the Attorney General, without delay -

(a) use its best endeavours to undertake the questioning that the ICC has requested;
(b)ensure that the answers to the questions put are recorded in writing and make any other report on the questioning as it considers to be appropriate in the circumstances; and
(c) advise the Minister of the outcome of those endeavours and, if relevant, deliver the record and any report of the questioning to Minister.

(3) A person questioned under this section shall notwithstanding anything to the contrary in any other law, be entitled to all the rights referred to in article 55 (2) of the Statute.


61. Assistance in arranging service of documents -

(1) Where the ICC requests assistance in arranging for the service of a document in Samoa, the Minister shall give authority for the request to proceed and transmit the request to the Attorney General, if the Minister has reasonable grounds to believe that the person or body to be served is or may be in Samoa.

(2) Where the Minister authorises and transmits the request under subsection (1), the Attorney General in Samoa shall, without delay -

(a) use its best endeavours to have the document served-
(i) in accordance with any procedure specified in the request; or
(ii) if that procedure would be unlawful or inappropriate in Samoa, or if no procedure is specified, in accordance with the law of Samoa; and
(b) transmit to the Minister -
(i) a certificate as to service, if the document is served; or
(ii) a statement of the reasons that prevented service, if the document is not served.

(3) In this section, document includes -

(a) a summons requiring a person to appear as a witness; and
(b) a summons to an accused that has been issued under article 60(7) of the Statute.


62. Assistance in facilitating the voluntary appearance of witness -

(1) Where the ICC requests assistance in facilitating the voluntary appearance of a witness before the ICC the Minister shall give authority for the request to proceed and transmit the request to the Attorney General if the Minister is satisfied that there are reasonable grounds to believe that the witness is or may be in Samoa.

(2) In this section and in section 63 and 64, “witness” includes a person who may give expert evidence; but does not include -

(a) a person who has been accused of a crime in the proceedings to which the request relates; or
(b) a prisoner who is detained in relation to an offence against the law of Samoa.


63. Consent required –

The Attorney General under section 62 shall make such inquiries as may be necessary to ascertain whether the prospective witness consents to giving evidence or assisting the ICC.


64. Minister may facilitate appearance -

(1) The Minister may assist in the making of arrangements to facilitate a witness’s attendance before the ICC if the Minister is satisfied that -

(a) the prospective witness has consented to giving the evidence or assistance requested; and
(b) the ICC has given any assurance requested by the Minister in respect of the witness including but not limited to an assurance that the witness will not be prosecuted or detained by the ICC in respect of any specified act or omission that occurred before the witness’s departure from Samoa.

(2) The Minister may -

(a) approve and make arrangements for the travel of the witness to the ICC at the cost of the ICC, including but not limited to, the obtaining of such approvals, authorities, and permissions as are required for that purpose, including, in the case of a person who although not liable to be detained in a prison is subject to a sentence -
(i) the variation, discharge, or suspension of the conditions of the person’s release from prison; or
(ii) the variation, cancellation, or suspension of the person’s sentence; and
(b) take such other action for the purposes of subsection (1) as the Minister thinks appropriate.


65. Assistance in facilitating temporary transfer of prisoner -

Where the ICC requests assistance in facilitating the temporary transfer to the ICC of a prisoner serving a sentence in Samoa for an offence against the law of that country, the Minister shall give authority for the request to proceed and transmit the request to the Attorney General, if the Minister has reasonable grounds to believe that the prisoner’s assistance is sought for the purpose of identification or obtaining evidence or other assistance.


66. Consent required and assurances may be sought -

Where the Minister authorises and transmits a request under section 65, the Attorney General shall make such inquiries as may be necessary to ascertain whether the prisoner will consent to the transfer.


67. Minister may arrange for transfer -

(1) The Minister may authorise the temporary transfer of a prisoner serving a sentence in Samoa to the ICC if the Minister is satisfied that -

(a) the prisoner has consented to giving the evidence or other assistance requested; and
(b) the ICC has given any assurances requested by the Minister including but not limited to an assurance that the prisoner will not be released without prior approval of the Minister.

(2) Where the Minister authorises the temporary transfer of the prisoner serving a sentence in Samoa to the ICC, the Minister may -

(a) direct that the prisoner be released from the prison in which that prisoner is detained, for the purpose of the transfer to the ICC; and
(b) make arrangements for the prisoner to travel to the ICC in the custody of a person authorised for the purpose by the ICC.

(3) A direction given by the Minister under subsection (2) in respect of a prisoner is sufficient authority for the release of the prisoner from the prison in which the prisoner is detained, for the purposes of the transfer.

(4) Every person released under a direction given under subsection (2) shall be treated, for the purposes of the law in force relating to escape from lawful custody and for that purpose only, as continuing to be in the legal custody of the officer in charge of a prison from which the person is so released, while in Samoa during the period of that release.

(5) Where there is any inconsistency between subsection (4) and any other law, subsection (4) shall prevail.


68. Effect of transfer on prisoner’s sentence -

Where a prisoner who is serving a sentence for an offence committed in Samoa is transferred to the ICC -

(a) the prisoner shall be treated, while in custody outside Samoa in connection with the request, as being in custody for the purposes of the sentence imposed for the offence committed in Samoa which shall continue to run; and
(b) the Minister -
(i) may at any time notify the ICC that the prisoner is no longer required to be kept in custody; and
(ii) shall notify the ICC if the prisoner is no longer liable to be detained in a prison in Samoa.


69. Assistance in examining places or sites -

(1) Where the ICC requests assistance in examining places or sites in Samoa, the Minister shall give authority for the request to proceed and transmit the request to the Attorney General if the Minister has reasonable grounds to believe that the place or site is located in Samoa.

(2) Where the Minister authorises and transmits the request under subsection (1), the Attorney General -

(a) shall without delay use its best endeavours to undertake the examination of the place or site in the manner that the ICC has requested;
(b) shall make such report on the examination as it considers to be appropriate in the circumstances; and
(c) shall deliver the report of the examination to the Minister; and
(d) may, where appropriate, apply to a Judge for an exhumation order for the exhumation and examination of the remains at a grave site.

(3) An authorisation under this section shall be deemed to authorise the Attorney General to enter a place or site for the purpose of examining it.


70. Assistance involving search and seizure -

(1) Where the ICC makes a request for search and seizure, the Minister shall give authority for the request to proceed and authorise in writing, a police officer to apply to a Judge for a search warrant if the Minister has reasonable grounds to believe that any thing relevant to an investigation being conducted by the Prosecutor or proceeding before the ICC is or may be located in Samoa.

(2) Upon an application made to a Judge under subsection (1) by a police officer authorised under that subsection, the Judge may, if satisfied that the item specified in the request made by the ICC is located in Samoa issue a warrant authorising that police officer or any other police officer specified in the warrant to search for and seize that item.

(3) The Judge may issue a warrant under subsection (2) subject to such conditions as the Judge may think fit to impose.

(4) Subject to any condition specified in the warrant, a warrant issued under subsection (2) shall authorise the police officer executing the warrant -

(a) to enter and search any place or to stop and search any vehicle in which the item specified in the warrant is located or held, at any time by day or night;
(b) to use such assistants as may be reasonable in the circumstances for the purpose of such entry and search;
(c) to use such force as is reasonable in the circumstances to effect entry to such place or to stop or board such vehicle, and to break any receptacle in which the item specified in the warrant is placed; and
(d) to search for and seize the item.

(5) A person called on to assist a police officer executing a warrant issued under subsection (2) may exercise the powers referred to in paragraph (c) and (d) of subsection (4).

(6) A police officer executing a warrant issued under subsection (2) shall -

(a) produce such warrant on initial entry, and if required to do so, at any time there after;

(b) give to the owner of the item seized or any other person whom the police officer has reason to believe has an interest in such item, a notice specifying -
(i) the date and time of execution of the warrant;
(ii) the name and position of the person executing the warrant;
(iii) the item seized under the warrant.

(7) A police officer seizing an item under the authority of a warrant issued under subsection (2) shall deliver it into the custody and control of the Commissioner of Police.

(8) The Commissioner of Police shall inform the Minister that the item has been obtained and await the Minister’s directions as to how the item is to be dealt with.

(9) Except as otherwise provided in this section, the law relating to search and seizure generally, shall apply to a search and seizure under this section.


71. Assistance involving the use of other domestic investigative procedures -

(1) Where the ICC requests assistance in the gathering of evidence for an investigation, the
Minister shall give authority for the request to proceed and transmit the request to the Attorney General if the Minister has reasonable grounds to believe that the assistance requested is not prohibited by the law of Samoa.

(2) Where the Minister authorises and transmits the request under subsection (1), the Attorney General may -

(a) make use of any domestic powers as would be available in a domestic investigation of a similar matter to gather such evidence and any such powers under domestic law shall apply with the necessary modifications;
(b) make such report as it considers to be appropriate in the circumstances; and
(c) deliver the report to the Minister.


72. Assistance in protecting victims and witnesses and preserving evidence -

(1) Where the ICC requests -

(a) assistance under article 93(1)(j) of the Statute in protecting victims and witnesses or preserving evidence;
(b) assistance under article 19(8), or article 56(2) or (3), in preserving evidence, in relation to an investigation by, or a proceeding before the ICC, the Minister shall give authority for the request to proceed and transmit the request to the Attorney General if the Minister has reasonable grounds to believe that the assistance requested is not prohibited by the law of Samoa.

(2) Where the Minister authorises and transmits the request under subsection (1), the Attorney General shall without delay -

(a) use its best endeavours to give effect to the request;
(b) make such report on the outcome of its endeavours as it considers to be appropriate in the circumstances; and
(c) deliver the report to the Minister.


73. Request for assistance in the restraining and seizure of property associated to crime -

(1) Where the ICC requests assistance in identifying, tracing and restraining or seizing property for the purpose of eventual forfeiture, the Minister shall give authority for the request to proceed and transmit the request to the Attorney General if the Minister has reasonable grounds to believe that the property is or may be located in Samoa.

(2) Where the Minister authorises and transmits the request under subsection (1), the Attorney General -

(a) shall use its best endeavours to give effect to the request; or
(b) may, where appropriate, apply to a Judge for a restraining or seizing order with respect to the property.

(3) An application under subsection 2(b) may be made ex parte and may be granted without a hearing.

(4) The Judge considering an application under subsection 2(b) may make a restraining or seizing order, as appropriate, if satisfied -

(a) that a forfeiture order has been made in proceedings before the ICC; or
(b) that there are reasonable grounds to believe that a forfeiture order may be made in such proceedings, and that the property to which the application for the restraining or seizing order relates consists of or includes property that is or may be affected by such a forfeiture order.

(5) A restraining or seizing order shall provide for notice to be given to any persons with an interest in the property or otherwise affected by the order.

(6) A person affected by the order may apply to a Judge for an order to vary or discharge the restraining or seizing order in relation to the person’s interest.

(7) The Judge may vary or discharge the restraining or seizure order in relation to the interest of a person making an application under subsection (6) only if the Judge is satisfied that the applicant has an interest in the property, was not in any way involved in the commission of the crime to which the property relates, and had no basis to believe that the property was the proceeds of, or associated with, the crime.

(8) Subject to subsection (7), the property shall remain subject to the restraining or seizing order until the ICC issues a relevant forfeiture order in respect of the property and that order has been registered for enforcement under section 96 or the ICC advises that no such order will be issued, in which case the property shall be discharged from the restraining or seizing order.


74. Other forms of assistance -

The Minister may provide any other type of assistance which is not prohibited under the laws of Samoa, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.


75. Refusal of request -

(1) The Minister shall refuse a request for assistance under this Part only if -

(a) the ICC has determined that the case to which the request relates is inadmissible on any ground;
(b) the ICC advises that it does not intend to proceed with the request for any reason, including but not limited to a determination of the ICC that article
98(1) of the Statute applies to the execution of the request;
(c) the assistance sought is outside the listed types of assistance set out in article 93 (1) and the provision of the assistance is prohibited by the law of Samoa and the ICC does not accept the conditions, as contemplated by article 93 (5) of the Statute, subject to which the Minister was willing to provide the assistance; or
(d) the execution of a particular measure of assistance is prohibited in Samoa on the basis of an existing fundamental legal principle of general application and the ICC does not accept the conditions, as contemplated by article 93 (5) of the Statute, subject to which the Minister was willing to provide the assistance.

(2) The Minister may refuse a request for assistance under this Part of this Act only if -

(a) there are competing requests for assistance from the ICC and a state and the Minister has decided, in consultation with the ICC and the state, that it is not possible to execute both requests and has decided further to proceed with the execution of the request of the state, in accordance with the principles established by article 90 of the Statute and section 40; or
(b) the refusal is authorised under Part VII.

(3) If the Minister decides to refuse a request for assistance in accordance with subsection (1) or (2) after the Minister has transmitted the request to the Attorney General, the Minister shall inform that agency not to take any further steps to execute the request.


76. National Security -

(1) Where -

(a) the ICC requests assistance under Part V for the production of documents or the taking of evidence and the Minister is of the opinion that the production of such documents or the disclosure of such evidence would be prejudicial to the national security of Samoa; or
(b) a person is required to disclose information to, or give evidence before the ICC and the person refuses to do so on the ground that the disclosure of such information or the giving of such evidence would be prejudicial to the national security of Samoa and the Minister confirms that in the person’s opinion the disclosure of such information or the giving of such evidence would be prejudicial to the national security of Samoa; or
(c) the Minister is of the opinion that the disclosure of information to, or giving of evidence before the ICC in circumstances other than the circumstances referred to in paragraphs (a) and (b) would be prejudicial to the national security of Samoa, the Minister shall consult with the ICC and take reasonable steps to resolve the matter in accordance with article 72(5) of the Statute.

(2) If, after consultation with the ICC, the Minister considers that there are no means or conditions under which the information, documents or evidence requested could be provided, disclosed or given without prejudice to the national security of Samoa, the Minister may refuse the request for the production of such document or the disclosure of such evidence or refuse the authorisation of the production of such document or the disclosure of such information and shall specify to the ICC, the person’s reasons for doing so, unless the specification of those reasons would itself be, in the person’s opinion, prejudicial to the national security of Samoa.


77. Postponement of execution of request for assistance -

(1) The Minister may postpone the execution of a request for assistance under this Part only if -

(a) a determination on admissibility is pending before the ICC;
(b) the execution of the request would interfere with an investigation or prosecution in Samoa involving a different offence from that to which the request relates;
(c) the Minister is consulting with the ICC under section 32(2) as to whether or not article 98(1) of the Statue applies to execution of the request; or
(d) there are competing requests for assistance from ICC and a state, and the Minister in consultation with ICC and the state decides to postpone the execution of the ICC’s request.

(2) If execution of the request for assistance is postponed under subsection (1) (a) and the ICC decides that the case is admissible, the Minister shall proceed with the execution of the request as soon as possible after the decision of the ICC.

(3) If the execution of the request for assistance is postponed under subsection (1)(b), the Minister shall consult with the ICC and agree on a period of time for postponement ofthe execution of the request in accordance with article 94 of the Statute; and the Minister shall proceed with execution of the request after the lapse of the period, unless otherwise agreed with the ICC.

(4) If execution of the request for assistance is postponed under subsection (1) (c) and the ICC decides to proceed with the request, the Minister shall proceed with the execution of the request as soon as possible after the decision of the ICC.

(5) If the execution of the request for assistance is postponed under subsection (1)(d), the Minister shall proceed with the execution of the ICC’s request as soon as practicable.

(6) If the Minister decides to postpone execution of a request for assistance in accordance with this section after the Minister has transmitted the request for execution to the
Attorney General, the Minister shall direct that agency to postpone the execution of the request for such period as is specified in the direction.

(7) A decision by the Minister to postpone the execution of a request shall not affect the validity of any act that has been done or any warrant or order made under this Part of this Act prior to the decision, and any such warrant or order shall remain in force unless cancelled.


78. Procedure before refusing assistance -

Before denying a request for assistance under the provisions of this Act, the Minister shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.


79. Verification or Authentication of material -

Where, in order to comply with a request of the ICC for assistance it is necessary for any evidence or other material obtained under this Part to be verified or authenticated in any manner the Minister may give directions as to the manner in which such evidence or material shall be verified.


80. Transmission of material to ICC -

(1) Any evidence or other material obtained under this Part by a person other than the Minister together with any requisite verification shall be sent to the Minister for transmission to the ICC unless the Minister authorises otherwise.

(2) Where any evidence or other material is to be transmitted to the ICC there shall be transmitted -

(a) where the material consists of a document, the original or a copy; and
(b) where the material consists of any other article, the article itself or a photograph or other description of it as may be necessary to comply with the request of the ICC.


81. Certificates issued by Minister -

(1) If the Minister receives a request for assistance from the ICC to which this Part of this Act applies, the Minister may issue a certificate certifying all or any of the following facts -

(a) that a request for assistance has been made by the ICC;
(b) that the request meets with the requirements of this Act; and
(c) that the request has been duly accepted under and in accordance with the provisions of this Act.

(2) In any proceeding under this Act, a certificate purporting to have been issued under subsection (1) shall, in the absence of proof to the contrary, be sufficient evidence of the facts certified therein.


82. Minister may request assistance from ICC –

The Minister may make a request to the ICC for assistance in accordance with this Part of this Act in an investigation into, or trial in respect of, conduct that may constitute a crime within the jurisdiction of the ICC or that constitutes a crime for which the maximum penalty under the law of Samoa is a term of imprisonment of not less than 5 years.