Part 5
Other Requests

50.—
(1) In this section—
“bodily sample” means any of the following:

(a) a sample of blood, hair, urine or saliva;
(b) a nail clipping or any material found under a nail;
(c) a swab from any part of the body;
(d) a footprint or a similar impression of any part of the body, including a dental impression;

“consent” means consent in writing and a reference to the consent of a person is a reference to—

(a) in the case of a person who has attained the age of 17 years, the consent of that person,
(b) in the case of a person who has not attained the age of 17 years but has attained the age of 14 years, the consent of that person and of his or her parent or guardian, and
(c) in the case of a person who has not attained the age of 14 years, the consent of his or her parent or guardian;

“dentist” means a person whose name is entered for the time being in the Register of Dentists maintained under the Dentists Act 1985;

“doctor” means a person whose name is entered for the time being in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act 1978;

“identification evidence” means a fingerprint, palm print, iris identification or photograph of, or bodily sample from, a person and any related records.

(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.

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.

52.—
(1) This section applies where the Minister receives from the International Criminal Court a request under Article 93.1(b) for—

(a) the taking of evidence, including testimony on oath, from persons other than persons suspected of having committed an ICC offence or persons being investigated or prosecuted by the Court, or
(b) the production of evidence, including expert opinions and reports necessary to the Court.

(2) Where this section applies, the Minister may, subject to section 4—

(a) request the President of the District Court to nominate a judge of that Court to receive the evidence to which the request relates, and
(b) send the judge a copy of the request and of any accompanying or related documents.

(3) For the purposes of this section the nominated judge—

(a) shall have the powers of the District Court in criminal proceedings, including its powers—

(i) in relation to securing the attendance of witnesses, the production of documents or other articles, the taking of evidence on oath and, subject to subsection (4), compelling witnesses to give evidence or produce documents or other things and the conduct generally of the proceedings for the taking of evidence, and
(ii) under any enactment or rule of law relating to the protection of witnesses against intimidation,
and

(b) may, if of opinion that it is necessary to protect—

(i) victims or witnesses or a person alleged to have committed an ICC offence, or
(ii) confidential or sensitive information,
direct that the proceedings before him or her, or any part of them, be held otherwise than in public.

(4) The judge shall inform a person in relation to whom this section applies of the rights referred to in paragraph 1 of Article 55 (rights of persons during an investigation).

(5) A person is not compelled to give in the proceedings any evidence which he or she could not be compelled to give in criminal proceedings in the State.

(6) Subject to subsection (5), any person who is summoned to give evidence in the proceedings and who, without reasonable excuse, fails or refuses to answer any question or to comply with a requirement to produce any document or other thing is guilty of an offence and liable, on summary conviction, to a fine not exceeding 1,500 or imprisonment for a term not exceeding 6 months or both.

(7) If at any stage of the proceedings it appears that there are grounds for suspecting that the person has committed an ICC offence, the judge shall—

(a) inform the person of his or her rights under paragraph 2 of Article 55,
(b) where necessary, order that the person be provided a competent interpreter, and
(c) order that legal aid be provided for the person if it appears to the judge that the person’s means are insufficient to enable him or her to obtain such aid.

(8) On the making of an order under subsection (7) (c) the person shall be entitled to free legal aid in the proceedings and for that purpose section 2 of the Criminal Justice (Legal Aid) Act 1962 shall apply, with the necessary modifications, in relation to the person as if he or she had been granted a legal aid (District Court) certificate under that section.

(9) The judge shall—

(a) send the record of any evidence received under this section to the Minister for transmission to the Court, and
(b) supply any certificate or other form of authentication in relation to the evidence as may be required for compliance with the request.

(10) In subsection (3) (a) (ii) “enactment” includes the Criminal Law (Rape) Acts 1981 and 1990, Criminal Evidence Act 1992, Criminal Justice Act 1999 and Children Act 2001.

53.—
(1) This section applies where the Minister receives from the International Criminal Court a request under Article 93.1(c) for the questioning of any person who is suspected of having committed an ICC offence.

(2) Where this section applies, the Minister shall, subject to section 4, send a copy of the request and any accompanying documents to the Commissioner of the Garda Síochána.

(3) The Commissioner shall arrange for the questioning of the person concerned by a member or members of the Garda Síochána in a Garda station.

(4) The person shall not be questioned in pursuance of the request unless he or she—

(a) consents to be questioned,
(b) has been informed of his or her rights, as referred to in Article 55,
(c) is provided, where necessary, with a competent interpreter and legal assistance in accordance with paragraph 2 of that Article.

(5) The consent may be given either—

(a) by the person concerned, or
(b) where, by reason of the person’s physical or mental condition or his or her youth, it would be inappropriate for the person to act for himself or herself, by an appropriate person acting on the person’s behalf.

(6) The questioning shall be videorecorded and the recording, together with any form of authentication specified in the request, sent by the Commissioner to the Minister for transmission to the Court.

(7) The questioning shall, subject to this section, be conducted in accordance with any directions in that regard contained in the request.

54.—
(1) A request from the International Criminal Court for the service of documents, including summonses or other judicial documents, may, subject to section 4, be sent by the Minister to the Commissioner of the Garda Síochána.

(2) The Commissioner shall—

(a) cause the documents to be served in accordance with the request by a member of the Garda Síochána and send proof of the service to the Minister for transmission to the Court, or
(b) if it is not possible to effect service, notify the Minister accordingly, stating the reason for the non-service.

(3) If the document to be served is a summons requiring attendance before the Court as a witness, it shall be accompanied by a notice stating—

(a) that the person on whom it is served may wish to seek advice as to the possible consequences of failure to comply with the summons,
(b) that under the Statute the person may not have the same rights and privileges in proceedings before the International Criminal Court as those of witnesses in criminal proceedings before a court in the State, and
(c) that, as the case may be, the Court—

(i) has provided an assurance to the person that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded his or her departure from the State, or
(ii) has authority under Article 93.2 to do so.

55.—
(1) This section applies where the Minister receives a request from the International Criminal Court under Article 93.1(f) for the temporary transfer to it of a person in custody in the State for identification purposes or for obtaining testimony or other assistance.

(2) The Minister may, subject to section 4, by order require such a person—

(a) to be taken in custody from the place in which he or she is detained to a place of departure from the State for delivery into the custody of a person authorised in that behalf by the Court, and
(b) on the person’s return from the Court, to be taken back in custody to the place where he or she was detained unless, in the case of a person serving a sentence of imprisonment or detention, the sentence has expired.

(3) An order under this section—

(a) may be made—

(i) only with the person’s consent, or
(ii) where it appears to the Minister inappropriate for the person to give consent by reason of the person’s physical or mental condition or his or her youth, only if consent has been given by a person appearing to the Minister to be an appropriate person to do so,and

(b) may make the transfer subject to conditions, including conditions relating to—

(i) the return of the person to the State, and
(ii) the person’s custody while outside the State.

(4) A person (other than a member of the Garda Síochána) who has custody under subsection (2) of a person who is being taken from or to the place where he or she is or was detained is deemed for the purposes of that subsection to be such a member.

(5) If a person escapes from custody or is unlawfully at large while in transit in the State to or from the Court, he or she may be arrested without warrant by a member of the Garda Sı´ochána or other person in whose custody he or she is and taken to any place to which he or she may be taken in accordance with an order under this section.

(6) (a) A person who is serving a sentence of imprisonment or detention or who is otherwise in custody shall continue to serve the sentence or to remain in custody while the person is in transit to or from the place of departure or is in the custody of the Court.
(b) The Minister shall inform the Court of the date of expiry of any such sentence.

(7) In this section “custody” includes custody in the State while awaiting trial or sentence or in default of paying a fine or other sum due under an order of a court.

56.—
(1) In this section “transferee” means a person who—

(a) is being surrendered to the International Criminal Court under Article 89 by another state,
(b) is in custody in another state and is being temporarily transferred to the Court under Article 93.7, or
(c) is being transferred in accordance with Part 10 of the Statute between the Court and another state, or between such other states, to serve a sentence of imprisonment imposed by the Court,
and in relation to whom a request for transit has been transmitted in accordance with Article 87.

(2) Subject to Article 89.3, the Minister shall authorise transit through the State of a transferee unless transit would, in the Minister’s opinion, impede or delay the surrender.

(3) The Minister may—

(a) attach to the authorisation any conditions that he or she considers to be necessary, and
(b) arrange for the person, while in transit through the State, to be supervised by a member of the Garda Síochána.

(4) A transferee—

(a) shall, in accordance with Article 89.3(c), be detained on arrival in the State by a member of the Garda Síochána, and
(b) is deemed to be in the custody of that member or of any other such member for the time being supervising the transferee.

(5) In addition to the information required by Article 89.3(b) to be contained in a request by the Court for transit, the Minister may require the Court to supply such further information in relation to the circumstances of the surrender or transfer of the transferee concerned as the Minister considers to be necessary or expedient.

(6) (a) This subsection applies where a person referred to in any paragraph of subsection (1) is on board an aircraft which makes an unscheduled landing in the State.
(b) Where this subsection applies, the Minister may—

(i) require that the Court, in accordance with Article 89.3(e), submit a request for transit of the person concerned within the period of 96 hours commencing at the time of the unscheduled landing, and
(ii) inform the Court that, if the request is not received within that period, the person will be released.

(c) If the request is not received by the Minister before the end of the period mentioned in paragraph (b) (ii), the Minister shall order the person’s release.
(d) The release is not a bar to the arrest of the person on foot of a subsequent request from the Court for his or her surrender.
(e) Subsections (2) to (5) apply in relation to such a person as they apply in relation to a transferee.

57.—
Nothing in this Act shall be construed as preventing the provision to the International Criminal Court of assistance (other than assistance provided for under this Act) which is not prohibited by any other enactment or any rule of law.