I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Extradition Act 1988.
Dated 18 June 1990.
BILL HAYDEN
Governor-General
By His Excellency’s Command,
Michael Duffy
Attorney-General
Citation
1. These Regulations may be cited as the Extradition (Principality of Monaco) Regulations.
Commencement
These Regulations commence on 1 August 1990.
Interpretation
In these Regulations, unless the contrary intention appears:
“the Act” means the Extradition Act 1988.
Declaration of Principality of Monaco as extradition country
4. The Principality of Monaco is declared to be an extradition country.
(S.R. 215/89)—Cat. No. 14/5.6.1990
Application of Act
The Act applies in relation to the Principality of Monaco subject to the Treaty on Extradition between the Government of Australia and the Government of His Serene Highness the Prince of Monaco done at Monaco on 19 October 1988 (being the treaty a copy of the English text of which is set out in the Schedule).
SCHEDULE Regulation 5
TREATY ON EXTRADITION
BETWEEN THE GOVERNMENT OF AUSTRALIA
AND THE GOVERNMENT
OF HIS SERENE HIGHNESS THE PRINCE OF MONACO
The Government of Australia and the Government of His Serene Highness the Prince of Monaco.
DESIRING to make more effective the co-operation of the two States in the suppression of crime by concluding a treaty on extradition.
HAVE AGREED as follows:
Article 1
Obligation to extradite
Each contracting Party agrees to extradite to the other, in accordance with the provisions of this Treaty, any persons found in the requested State who are wanted for prosecution or the imposition or enforcement of a sentence in the requesting State for an extraditable offence.
Article 2
Extraditable offences
1. For the purposes of this Treaty, extraditable offences are offences however described which are punishable under the laws of both States by imprisonment or other deprivation of liberty for a maximum period of at least one year or by a more severe penalty. Where a request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment or other deprivation of liberty, extradition shall be granted only if a penalty of at least six months or a more severe penalty has been imposed, or if a period of at least six months of such penalty remains to be served.
2. For the purpose of this article it shall not matter whether the laws of both States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same or similar terminology.
3. In determining whether an offence is an offence against the laws of both States, the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether under the laws of both States the constituent elements of the offence differ.
4. Where the offence has been committed outside the territory of the requesting State extradition shall be granted where the law of the requested State provides for the punishment of the same offence committed outside its territory.
SCHEDULE—continued
5. The provisions of this Treaty shall also apply to offences committed before its entry into force provided that:
a) they were punishable in the requesting State at the time that the acts and omissions which constituted them were committed; and
b) that such acts and omissions would constitute an offence under the law of the requested State if they were committed in the territory of that State at the time when the request for extradition is made.
Article 3
Extradition of nationals
1. The Principality of Monaco shall not surrender its nationals; Australia may, in its discretion, decline to surrender Australian nationals.
2. Subject to being able to exercise jurisdiction, the Government of the requested State shall, where surrender is refused pursuant to paragraph 1, at the request of the government of the requesting State, submit the case to its competent authorities to permit the question of prosecution to be considered.
3. In such a case, all relevant information and evidence shall be transmitted, free of charge, to the government of the requested State and that government shall advise the government of the requesting State of the decision taken on the request.
Article 4
Exceptions to the obligation to extradite
1. Extradition shall not be granted in any of the following circumstances:
a) when the offence for which extradition is requested is regarded by the government of the requested State as being a political offence. Reference to a political offence shall not include the taking or attempted taking of the life of a head of State or of a member of his or her family;
b) when there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality or political opinion or that that person’s position may be prejudiced for any of those reasons;
c) when the offence for which extradition is requested is an offence only under military law;
d) where the person whose extradition is requested has, according to the law of either State, become immune from prosecution or punishment by reason of lapse of time;
e) when the competent authorities of the government of the requested State have decided to refrain from prosecuting the person whose surrender is sought for the offence in respect of which extradition is requested;
f) when a prosecution in respect of the offence for which extradition is requested is pending in the requested State against the person whose surrender is sought;
g) when the offence for which extradition is requested is regarded under the law of the requested State as having been committed in whole or in part within that State; or
h) where final judgement has been passed in the requested State or in a third State in respect of the offence for which the person’s surrender is sought.
2. Extradition may be refused in any of the following circumstances:
SCHEDULE—continued
a) if the offence for which extradition is requested is punishable by death under the law of the requesting State, and if in respect of such offence the death penalty is not provided for by the law of the requested State or is not normally carried out, unless the government of the requesting State gives such assurance as the government of the requested State considers sufficient that the death penalty will not be carried out;
b) when the offence for which extradition is requested is regarded by the law of the requested State as a revenue offence. For the purpose of this exception, “revenue offence” means an offence in connection with taxes, customs or other duties or exchange control;
c) if the surrender is likely to have exceptionally serious consequences for the person whose extradition is sought particularly as regards that person’s age or state of health.
3. This article shall not affect any obligations which have been or shall in the future be assumed by the contracting Parties under any multilateral convention.
Article 5
Postponement of surrender
The government of the requested State may, after making its decision on the request for extradition, postpone the surrender of a person whose extradition is sought in order to proceed against the person, or so that the person may serve a sentence, for an offence other than an offence constituted by an act or omission for which extradition is requested and where the government of the requested State so postpones the extradition it shall advise the government of the requesting State accordingly.
Article 6
Extradition procedure and required documents
1. A request for extradition shall be made in writing and shall be communicated through the diplomatic channel. All documents submitted in support of a request for extradition shall be duly authenticated.
2. The request for extradition shall be accompanied:
a) if the person is accused or has been convicted in his absence of an offence—by a warrant of arrest, a judicial or other document, including a judgement, authorising the apprehension of the person or a copy of any such document, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the fugitive in respect of each offence;
b) if the person has been convicted of an offence—by such documents as provide evidence of the conviction and the sentence imposed, the fact that the sentence is immediately enforceable, and the extent to which the sentence has not been carried out;
c) if the person has been convicted of an offence in Australia but no sentence has been imposed—by such documents as provide evidence of the conviction and a statement affirming that it is intended to impose a sentence;
d) in all cases by a copy of the provisions of the relevant enactments or, where this is not possible, a statement of the relevant law creating the offence including any law relating to the limitation of proceedings or punishment, as the case may be and a statement of the punishment that can be imposed for the offence; and
e) in all cases by as accurate a description as possible of the person sought together with any other information which will help to establish the person’s identity and nationality.
SCHEDULE—continued
3. The documents submitted in support of a request for extradition shall be accompanied by a translation into the language of the requested State.
Article 7
Authentication of supporting documents
1. A document that, in accordance with article 6. accompanies a request for extradition shall be admitted in evidence if duly authenticated.
2. A document is duly authenticated for the purposes of this Treaty if:
a) it purports to be signed or certified by a judge, magistrate or officer in or of the requesting State; and
b) it purports to be sealed with an official or public seal of the requesting State or of a Minister of State, or of a department or officer of the government, of the requesting State.
Article 8
Additional information
1. If the government of the requested State considers that the information furnished in support of the request for the extradition of a person is not sufficient to allow that government to make a decision pursuant to this Treaty, it may request that additional information be furnished within such time as it specifies.
2. If the person whose extradition is requested is under arrest and the additional information furnished is not sufficient or is not received within the time specified, the person may be released from custody but such release shall not preclude the government of the requesting State from making a fresh request for the extradition of the person.
3. Where the person is released from custody in accordance with paragraph 2, the government of the requested State shall notify the government of the requesting State as soon as practicable.
Article 9
Provisional arrest
1. In case of urgency the government of either State may apply by means of the facilites of the International Criminal Police Organisation (INTERPOL) or by any other means affording evidence in writing for the provisional arrest of the person sought pending the presentation of the request for extradition through the diplomatic channel.
2. The application shall contain a description of the person sought, a statement that extradition is to be requested through the diplomatic channel, a statement of the existence and terms of a warrant of arrest or a judgement of conviction against the person, a statement of the punishment that can be imposed or has been imposed for the offence, a description of the nature of the offence, and a brief statement of the acts or omissions alleged to constitute the offence.
3. On receipt of such an application the government of the requested State shall, if appropriate, take the necessary steps to secure the arrest of the person claimed and the government of the requesting State shall be promptly notified of the result of its request.
4. A person arrested and in custody upon such an application shall be set at liberty upon the expiration of forty-five days from the date of that person’s arrest if a request for extradition, supported by the documents specified in article 6, has not been received.
SCHEDULE—continued
5. Release shall not prejudice re-arrest and extradition if a request for extradition is subsequently received.
Article 10
Conflicting requests
1. Where requests are received from two or more States for the extradition of the same person, the government of the requested State shall determine to which of those States the person is to be extradited and shall notify the governments of the requesting States of its decision.
2. In determining to which State a person is to be extradited, the government of the requested State shall have regard to all relevant circumstances and, in particular, to:
a) if the requests relate to different offences—the relative seriousness of the offences;
b) the time and place of commission of each offence:
c) the respective dates of the requests;
d) the nationality of the person;
e) the ordinary place of residence of the person; and
f) the possibility of extradition to a third State.
Article 11
Surrender of person to be extradited
1. The government of the requested State shall as soon as a decision on the request for extradition has been made, communicate that decision to the government of the requesting State through the diplomatic channel.
2. Where extradition of a person for an offence is granted, the person shall be removed from the territory of the requested State from a point of departure in the territory of that State convenient to the government of the requesting State.
3. The government of the requesting State shall remove the person from the territory of the requested State within such reasonable period as the government of the last-mentioned State specifies and, if the person is not removed within that period, the government of the requested State shall, subject to paragraph 4, set the person at liberty and may refuse to extradite that person for the same offence.
4. If circumstances beyond its control prevent a contracting Party from surrendering or removing the person to be extradited it shall notify the other contracting Party. The two contracting Parties shall agree upon a new date of surrender, and the provisions of paragraph 3 of this article shall apply.
Article 12
Surrender of property
1. To the extent permitted under the law of the requested State and subject to the rights of third parties, which shall be duly respected, all property found in the requested State that has been acquired as a result of the offence or may be required as evidence shall, if the government of the requesting State so requests, be surrendered if extradition is granted.
2. Subject to the qualifications of paragraph 1 of this article, the above-mentioned property shall, if the government of the requesting State so requests, be surrendered to the government of the requesting State even if the extradition, having been consented to, cannot be carried out owing to the death or escape of the person sought.
SCHEDULE—continued
3. Where the law of the requested State or the rights of third parties so require, any property so surrendered shall be returned to the government of the requested State free of charge if that government so requests.
Article 13
Rule of speciality
1. Subject to paragraph 3, a person extradited under this Treaty shall not be detained or tried, or be subjected to any other restriction of personal liberty, in the territory of the requesting State for any offence committed before the extradition other than:
(i) an offence for which extradition was granted; or
(ii) any other extraditable offence in respect of which the government of the requested State grants consent.
2. A request for the consent of the government of the requested State under this article shall be accompanied by the documents mentioned in article 6, as well as a record of any statement made by the extradited person in respect of the offence concerned.
3. Paragraph 1 does not apply if the person has had an opportunity to leave the requesting State and has not done so within forty-five days of final discharge or if the person has returned to the territory of the requesting State after leaving it.
Article 14
Re-extradition to a third State
1. Where a person has been surrendered to the government of the requesting State by the government of the requested State, the first-mentioned government shall not surrender that person to any third State for an offence committed before that person’s surrender unless:
a) the government of the requested State consents to that surrender; or
b) the person has had an opportunity to leave the requesting State and has not done so within forty-five days of final discharge or has returned to the territory of the requesting State after leaving it.
2. Before acceding to a request pursuant to sub-paragraph 1 a) of this article, the government of the requested State may request the production of the documents mentioned in article 6.
Article 15
Transit
1. Where a person is to be extradited to one of the two States from a third State through the territory of the other, the government of the State to which the person is to be extradited shall request the government of the State of transit to permit the transit of that person through its territory.
2. Transit shall be permitted only if the offences in respect of which the person is being surrendered are offences of a kind which would be extraditable under this Treaty.
3. Permission for the transit of a person shall, subject to the law of the requested State, include permission for the person to be held in custody during transit.
4. Where a person is being held in custody pursuant to paragraph 3 of this article, the government of the State in whose territory the person is being held may direct that the person be released if the person’s transportation is not continued within a reasonable time.
SCHEDULE—continued
5. Where air transport is used the following provisions shall apply:
a) when no landing is scheduled, the government of the requesting State shall advise the government of the State whose territory is to be overflown and shall certify that the documents referred to in article 6 exist. In the case of an unscheduled landing, this advice shall have the effect of a request for provisional arrest pursuant to article 9 and the government of the requesting State shall forward a normal transit request;
b) When a landing is scheduled, the government of the requesting State shall forward a normal transit request.
Article 16
Expenses
Except for the costs of conveying the person extradited and those occasioned by transit, which shall be borne by the government of the requesting State, expenses resulting from the extradition shall be borne by the government of the State in whose territory they were incurred.
Article 17
Entry into force and termination
1. This Treaty shall enter into force thirty days after each contracting Party has notified the other that the constitutional requirements for the entry into force of this Treaty have been complied with.
2. Either contracting Party may terminate this Treaty at any time by forwarding through the diplomatic channel written notice of termination and this Treaty shall cease to be in force on the one hundred and eightieth day after the day on which notice is given.
IN WITNESS WHEREOF the undersigned, being duly authorised thereto, have signed this Treaty.
DONE at MONACO in duplicate on the nineteenth day of October nineteen hundred and eighty-eight, in English and French, both texts being equally authentic.
For the Government of For the Government of
Australia His Serene Highness
Lionel Bowen the Prince of Monaco
Jean Ausseil
NOTE
1. Notified in the Commonwealth of Australia Gazette on 25 June 1990.
Printed by Authority by the Commonwealth Government Printer