The text contains multiple procedural and substantive features that commonly give rise to overlooked consequences. These are concrete mechanics in the Treaty and Regulations practitioners should watch for:
Document and authentication formalities: Article 5 sets out a mandatory list of documents to accompany a request: arrest warrant or copy, statements of offences and alleged acts, conviction documents and sentences where relevant, statutory provisions or statement of law, and identity particulars (Article 5(2)(a)-(f)). Article 6 prescribes authentication: signature or certification by a judge, magistrate or officer, and authentication by oath/affirmation or official/public seal (Article 6(2)). Failure to comply with these formalities may delay or prevent admissibility in extradition proceedings; Article 5(3) allows for extradition despite non-compliance only “to the extent permitted by the law of the requested State” and only if the person consents. In practical terms one must plan for strict documentary standards and for translations into the requested State’s language (Article 5(4)).
Timing risks for provisional arrest: Article 8 allows provisional arrest in urgent cases via INTERPOL, but imposes a 45-day deadline from arrest for receipt of the formal request with Article 5 documents, failing which the person “may be set at liberty” (Article 8(4)). Practitioners relying on provisional arrest must ensure the diplomatic submission and accompanying documents are prepared rapidly or face the person’s release and the need to make a fresh request later.
Additional information and release: Article 7 gives the requested State the right to request further information within a specified time and requires release if the information is not provided in time (Article 7(2)). That can lead to a situation where a detained person is released but a fresh request may subsequently be made (Article 7(2)-(3)). This creates a risk that investigative or diplomatic delays will frustrate detention and require restart of the process.
Nationality and domestic prosecution choices: Article 3(2)(a) allows the requested State to refuse extradition where the person is a national. The requested State may, if its law allows and at the request of the other State, submit the case to its domestic authorities for prosecution. Practitioners should therefore expect nationality law and domestic prosecutorial policies to be decisive and to prepare alternative strategies (e.g. seeking domestic prosecution or negotiating consent to extradition).
Death-penalty issues: Article 3(2)(c) permits refusal where the offence carries the death penalty in the requesting State unless the requesting State undertakes that the death penalty will not be imposed or, if imposed, will not be carried out. Requests involving potential capital punishment therefore require an early assessment and, if necessary, diplomatic undertakings to secure extradition.
Four-month minimum for sentence enforcement: Article 2(1) requires that a convicted person sought for enforcement of sentence be extradited only if at least four months of the sentence remains to be served. Failure to check the remaining sentence may render an enforcement request non-compliant.
Speciality and re-extradition deadlines: Article 12’s rule of speciality restricts prosecution in the requesting State to offences for which extradition was granted unless consent is given, and Article 12(3) and Article 13(1)(b) create a 45-day rule: if the person had an opportunity to leave and fails to do so within 45 days of final discharge, or returns after leaving, certain exceptions to speciality and re-extradition controls apply. This 45-day threshold operates as an easily overlooked procedural deadline with consequences for subsequent prosecution or re-extradition to third States.
Transit and custody release risk: Article 14 allows transit through the other Contracting State upon request but permits the Contracting State in whose territory the person is held to release that person if transportation is not continued within a “reasonable time” (Article 14(4)). Practitioners should plan logistics to avoid unintended release during transit.
Property surrender and third-party rights: Article 11 permits surrender of property found in the requested State that was acquired as a result of the offence or may be required as evidence, “to the extent permitted under the law of the requested State and subject to the rights of third parties, which shall be duly respected.” Where third-party proprietary rights obtain, the requested State may also require the return of surrendered articles. This creates potential complexity in asset preservation strategies.
Requests must be diplomatic: Article 5(1) requires formal requests be made through the diplomatic channel. Misrouting a request (for example, directly to law enforcement or judicial bodies without proper diplomatic transmission) risks procedural invalidity.
Potential overlap with multilateral obligations: Article 3(3) preserves obligations under multilateral conventions. If other treaties apply, practitioners must consider which instrument imposes stricter obligations or protections in the given case.
Supersession of earlier treaties and termination: Article 16(2) provides that the 1910 UK-Greece treaty ceases to have force between Australia and Greece on entry into force of the 1987 Treaty. Article 16(4) allows either State to terminate the treaty with 180 days’ notice, which could alter long-term expectations about available extradition pathways.
Cost allocation pitfalls: Article 15 allocates arrest and custody expenses to the requested State and conveyance costs to the requesting State. Practitioners should ensure budgets for transport and logistical expenses are secured early to avoid delays that could lead to the requested State refusing extradition for failure to remove the person within the reasonable period it specifies (Article 10(3)).
Authentication of evidence and admissibility: Article 6 provides a discrete checklist for admissibility; failure to meet it can lead to evidentiary rejection in extradition proceedings. Moreover, translations are required (Article 5(4)).
In sum, the “gotchas” are largely procedural: strict documentary and authentication requirements, tight time limits (notably the recurring 45-day periods), nationality and death-penalty caveats, logistics and cost allocation, and the speciality/re-extradition thresholds. Each of these can convert what appears to be a straightforward extradition request into a contested or failed request if not addressed at the outset.