Extradition (Federal Republic of Germany) Regulations
Statutory Rules 1990 No. 134 as amended
made under the
Extradition Act 1988
This compilation was prepared on 31 May 2004
taking into account amendments up to SR 1990 No. 243
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
Contents
1 Citation [see Note 1]
2 Commencement
3 Interpretation
4 Declaration of Federal Republic of Germany as extradition country
5 Application of Act
6 Repeal of S.R. 1988 No. 302
Schedule
Notes
1 Citation [see Note 1]
These Regulations may be cited as the Extradition (Federal Republic of Germany) Regulations.
2 Commencement
These Regulations commence on 1 August 1990.
3 Interpretation
In these Regulations, unless the contrary intention appears:
the Act means the Extradition Act 1988.
4 Declaration of Federal Republic of Germany as extradition country
The Federal Republic of Germany is declared to be an extradition country.
5 Application of Act
The Act applies in relation to the Federal Republic of Germany subject to the Treaty between Australia and the Federal Republic of Germany concerning Extradition done at Bonn on 14 April 1987 (being the treaty a copy of the English text of which is set out in the Schedule).
6 Repeal of S.R. 1988 No. 302
The Extradition (Federal Republic of Germany) Regulations in force immediately before the commencement of these Regulations are repealed.
Schedule
(regulation 5)
TREATY
BETWEEN
AUSTRALIA
AND
THE FEDERAL REPUBLIC OF GERMANY
CONCERNING EXTRADITION
AUSTRALIA AND THE REPUBLIC OF GERMANY
DESIRING to regulate their relations in the field of extradition.
HAVE AGREED as follows:
ARTICLE 1
(1) The Contracting Parties undertake to extradite to each other, subject to the provisions of this Treaty, any person found in the territory of one of the Contracting Parties who is wanted for prosecution by a competent authority for, or has been convicted of, an offence committed within the territory of the other Contracting Party.
(2) When the offence has been committed outside the territory of the Requesting State, the Requested State shall grant extradition according to the provisions of this Treaty if its laws would provide for the punishment of such an offence committed in similar circumstances.
ARTICLE 2
(1) For the purpose of this Treaty, extraditable offences are offences which are at the time of the request for extradition punishable under the laws of both Contracting Parties by imprisonment or other deprivation of liberty for a maximum period of at least one year or by a more severe penalty. Where the request for extradition relates to a person convicted of an extraditable offence who is wanted for the enforcement of a sentence of imprisonment or other deprivation of liberty, extradition shall be granted only if a period of at least six months of such penalty remains to be served, or if, in respect of more than one extraditable offence where more than one sentence is to be carried out, a period of at least six months of such penalties in the aggregate remains to be served.
(2) For the purpose of this Article it shall not matter whether the laws of the Contracting Parties 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) For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting Parties the totality of the acts or omissions alleged against the person whose surrender is sought shall be taken into account without reference to the elements of the offence prescribed by the law of the Requesting State.
ARTICLE 3
(1) Extradition shall not be granted if:
(a) the offence for which extradition is requested is regarded by the Requested State as an offence of a political character or as an offence connected with an offence of a political character; or
(b) the Requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing the person claimed on account of his race, religion, nationality or political opinions or that he might, if extradited, be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions.
(2) For the purpose of this Treaty, a murder, kidnapping or other serious attach upon the person or liberty of a person in relation to whom the Contracting Parties have, or the Requesting State has, a duty according to international law to give special protection shall not be deemed to be an offence within the meaning of paragraph (1)(a).
ARTICLE 4
(1) Extradition shall not be granted if:
(a) the person claimed has already been tried and acquitted or convicted by the competent authorities of the Requested State for the offence in respect of which his extradition is requested; or
(b) criminal proceedings initiated against the person claimed for the offence in respect of which extradition is requested have been discontinued finally by the competent authorities of the Requested State, the person claimed having complied with the conditions imposed on him.
(2) Extradition may be refused if the person claimed has already been tried and acquitted or convicted by the competent authorities of a third State for the offence in respect of which his extradition is requested.
(3) Extradition may be refused if the person claimed is under examination or trial in the Requested State for the offence in respect of which his extradition is requested.
(4) Subject to paragraph (1) (b), a decision by the competent authorities of the Requested State not to initiate or to stop proceedings against the person claimed in respect of an offence shall not be a reason to refuse extradition in respect of the same offence.
ARTICLE 5
(1) An amnesty law of the Requested State shall not preclude the extradition of a person claimed if the offence for which his extradition is requested is not subject to the jurisdiction of that State.
(2) Extradition shall be granted notwithstanding that prosecution for the offence or carrying out of the sentence would be barred by lapse of time according to the law of the Requested State.
ARTICLE 6
(1) Neither of the Contracting Parties shall be bound to extradite its own nationals. The competent executive authority of the Requested State, however, shall have the power to grant the extradition of its own nationals if, in its discretion, this is deemed proper to do and provided the law of the Requested State does not so preclude.
(2) The Requested State shall undertake all available legal measures to suspend naturalization proceedings in respect of the person claimed until a decision on the request for his extradition and, if that request is granted, until his surrender.
(3) If in a particular case the Requested State does not extradite its own national it shall, at the request of the Requesting State, submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. If the Requested State requires additional documents or evidence, such documents or evidence shall be submitted without charge to that State. The Requesting State shall be informed of the result of its request.
ARTICLE 7
If a complaint by or on behalf of the person injured by an offence or an authorization to prosecute is required by the law of the Requested State, the absence of such a complaint or authorization shall not affect the obligation to extradite.
ARTICLE 8
If under the law of the Requesting State a person whose extradition is requested is liable to the death penalty for an offence for which his extradition is requested but the law of the Requested State does not provide for the death penalty in a similar case, that State may refuse extradition of the person unless the Requesting State gives such assurances as the Requested State considered sufficient that the death penalty will not be imposed or, if imposed, will not be carried out.
ARTICLE 9
(1) A request for the extradition of a person claimed shall be in writing. All documents furnished in support of a request for extradition shall be duly authenticated.
(2) The request shall be accompanied by:
(a) all available information concerning the identity and nationality of the person claimed; and
(b) a copy of the relevant provisions of the statute, if any, creating the offence or a statement of the relevant law and in either case a statement of the punishment that can be imposed.
(3) A request for the extradition of a person claimed for the purpose of prosecution shall be accompanied, in addition to the documents provided for in paragraph (2), by a warrant for the arrest, or a copy of the warrant for the arrest of the person claimed, a description of each offence for which the person is claimed, and a statement of the acts or omissions alleged against the person claimed in respect of each such offence.
(4) A request for the extradition of a person claimed for the carrying out of a sentence shall be accompanied, in addition to the documents provided for in paragraph (2), by a summary statement of the facts of the case unless they appear from the other documents, such documents as provide evidence of the final and binding conviction and a statement that the sentence is immediately enforceable and of the extent to which that sentence has not been carried out.
(5) Extradition may be granted of a person claimed pursuant to the provisions of this Treaty notwithstanding that the requirements of the preceding paragraphs of this Article have not been complied with, provided that the person claimed consents to an order for his extradition being made.
ARTICLE 10
(1) Documents which, in accordance with Article 9, accompany a request for extradition shall be admitted in evidence, if duly authenticated, in any extradition proceedings in the Requested State.
(2) Documents are duly authenticated for the purposes of this Treaty if:
(a) in the case of warrants they are signed, and in any other case they are certified, by a Judge, Magistrate or other competent authority in the Requesting State, and
(b) they are sealed with the official or public seal of the Requesting State or of a Minister of State, or a Department or officer of the Government, of the Requesting State.
ARTICLE 11
(1) If the Requested State considers that the information furnished in support of the request for the extradition of a person claimed is not sufficient to fulfil the requirements of its law with respect to extradition, that State may request that additional information be furnished within such time as that State specifies.
(2) If the person claimed is under arrest and the additional information submitted as aforesaid is not sufficient or is not received within the time specified by the Requested State, he shall be discharged from custody, but such discharge shall not bar a subsequent request in respect of the same offence.
ARTICLE 12
(1) In case of urgency an application may be made for the provisional arrest of a person claimed pending the making of a request for the extradition of that person.
(2) The application shall be accompanied by:
(a) a statement of intention to request the extradition of the person claimed;
(b) a statement that a warrant for the arrest of the person claimed for an offence for which his extradition may be requested has been issued or that the person claimed has been convicted of such an offence; and
(c) a statement of the offence for which extradition will be requested, the time and place of its commission, and, to the extent possible, the description of the person sought.
(3) When such an application is made, all necessary steps shall be taken in the Requested State to secure the arrest of the person claimed. The Requesting State shall be informed without delay of the result of its application.
(4) If the Requested State has not received the request for the extradition of a person claimed within two months after his arrest he may be set at liberty but nothing in this paragraph prevents the institution of further proceedings for the purpose of the extradition of the person claimed.
ARTICLE 13
If extradition is requested concurrently by more than one State, either for the same offence or for different offences, the Requested State shall make its decision having regard to all the circumstances and especially the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person claimed and the possibility of subsequent extradition to another State.
ARTICLE 14
(1) The Requested State shall promptly communicate to the Requesting State the decision on the request for extradition.
(2) The Requested State shall give the reasons for any complete or partial rejection of the requested for extradition.
ARTICLE 15
The Requested State may postpone the extradition of a person claimed in order to prosecute him for an offence, other than an offence constituted by the act or omission for which his extradition is requested, or so that he may serve a sentence for such an offence, and shall advise the Requesting State accordingly.
ARTICLE 16
(1) Where extradition of a person claimed is granted, he shall be conveyed by the appropriate authorities in the Requested State to a port or airport in the territory of that State agreed between that State and the Requesting State.
(2) The date on which the person claimed is to be surrendered to the Requesting State shall be agreed between that State and the Requested State in conformity with the law of the Requested State.
ARTICLE 17
(1) To the extent that the law of the Requested State permits, any property that may be material as evidence in proving the offence for which the extradition of a person claimed is requested or that has been acquired by him directly or indirectly as a result of the offence shall, if the Requesting State so requests, be delivered up with the person claimed on his surrender.
(2) Any property so delivered shall be returned to the Requested State free of charge after the trial of the person extradited if that State so requests.
ARTICLE 18
(1) Subject to paragraph (3) of this Article, a person extradited under this Treaty shall not:
(a) be detained or tried, or be subjected to any other restriction of his personal liberty, in the Requesting State for any offence committed before his extradition other than —
(i) an offence for which he was extradited or any other offence of which he could be convicted upon proof of the facts upon which the request for his extradition was based; or
(ii) any other extraditable offence in respect of which the Requested State consents to his being so detained or tried, or subjected to any other restriction of his personal liberty; or
(b) be detained in the Requesting State for the purpose of his being extradited to a third State or be extradited to such a State unless the Requested State consents to his being so detained or extradited.
(2) A request for the consent of the Requested State under this Article shall be accompanied by the relevant documents mentioned in Article 9. Article 11 (1) shall apply mutatis mutandis.
(3) Paragraph (1) does not apply if the person extradited, having had an opportunity to leave the territory of the Requesting State, has not done so within forty-five days of his final discharge, or has returned to that territory after leaving it. A discharge on parole or probation without an order restricting the freedom of movement of the extradited person shall be deemed to be a final discharge.
ARTICLE 19
(1) Where a person:
(a) is to be extradited for an offence by a third State to a Contracting Party through the territory of the other Contracting Party; and
(b) could be extradited for that offence by the other Contracting Party to the first-mentioned Contracting Party under the conditions of this Treaty,
the other Contracting Party shall, upon request, permit the transit of that person through its territory.
(2) A request for transit shall be accompanied by:
(a) a duly authenticated copy of the warrant or of a certificate proving the conviction of that person, issued in the Requesting State; and
(b) if those documents do not specify the offence for which the person is to be surrendered, a document specifying the offence and setting out a summary statement of the facts.
(3) Permission for the transit of a person includes permission for the person during transit to be accompanied by a person nominated by the Contracting Party to which the first mentioned person is to be extradited.
ARTICLE 20
(1) Where:
(a) a person who is to be extradited by a third State to a Contracting Party is proposed to be transported by aircraft over the territory of the other Contracting Party, without landing in that territory; and
(b) the first-mentioned Contracting Party is of the opinion that, if the aircraft were to land in that territory, the transit of that person through that territory would be permitted under Article 19,
the first-mentioned Contracting Party shall notify the other Contracting Party of the proposed transport of the person and shall confirm to the other Contracting Party that, in its opinion, the transport would be in accordance with Article 19.
(2) In the event of an unscheduled landing in the territory of a Contracting Party of an aircraft carrying a person who is being so transported, that Contracting Party may permit the transit but otherwise shall cause the person to be held in custody pending receipt of a request for transit in pursuance of Article 19.
ARTICLE 21
(1) Communications between the Contracting Parties shall be conveyed through the diplomatic channel.
(2) An application under Article 12 may also be made by means of the facilities of the International Criminal Police Organization (Interpol).
ARTICLE 22
Any document that is sent from a Contracting Party to the other Contracting Party in accordance with this Treaty and is not in the language of the other Contracting Party shall be accompanied by a translation of the document into that language.
ARTICLE 23
Expenses arising from the transportation of a person claimed to the Requesting State shall be borne by that State. Not other pecuniary claim arising from an extradition or a transit request shall be made by the Requested State against the Requesting State. The appropriate legal officers of the State in which the extradition proceedings take place shall, by all legal means within their power, assist the Requesting State before the competent judges and officers.
ARTICLE 24
Except where this Treaty otherwise provides, proceedings with regard to provisional arrest, extradition and transit shall be governed solely by the law of the Requested State.
ARTICLE 25
(1) A reference in this Treaty to the territory of a Contracting Party is a reference to all territory under its jurisdiction.
(2) A reference in this Treaty to the territory of a Contracting Party shall furthermore include its territorial waters and air-space and vessels and aircraft registered with the competent authority of that Contracting Party if such aircraft is in flight when the offence is committed. For the purpose of this Treaty an aircraft shall be considered to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation.
ARTICLE 26
This Treaty shall also apply to Land Berlin, provided that the Government of the Federal Republic of Germany does not make a contrary declaration to the Government of Australia within three months of the date of entry into force of this Treaty.
ARTICLE 27
This Treaty applies to offences committed before or after this Treaty enters into force.
ARTICLE 28
(1) This Treaty is subject to ratification.
(2) The instruments of ratification shall be exchanged as soon as possible in Canberra.
(3) This Treaty shall enter into force on the thirtieth day after the day on which the instruments of ratification are exchanged.
(4) This Treaty may be terminated by notice in writing at any time and it shall cease to be in force on the one hundred and eightieth day after the date of the notice.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.
DONE at Bonn on 14 April One thousand nine hundred and eighty seven in duplicate in the English and German languages, both texts being equally authentic.
For Australia For the Federal Republic
of Germany
Lionel Bowen Dr. Jurgen Ruhfus
Hans A Engelhard
Notes to the Extradition (Federal Republic of Germany) Regulations
Note 1
Note: The Extradition (Federal Republic of Germany) Regulations (in force under the Extradition Act 1988) as shown in this compilation comprise Statutory Rules 1990 No. 134 amended as indicated in the Tables below.