This module is a resource for lecturers

Excerpts of legislation

Regional perspective: Pacific Islands Region Vanuatu's Mutual Legal Assistance in Criminal Matters Act [Chapter 285], amended by the Mutual Assistance in Criminal Matters Act 2017 20. After section 48 Insert in Part 7 " Division 3 - Coordination with foreign countries 48A. Agreements and arrangements The Public Prosecutor may enter into an agreement or arrangement with a foreign country for the purpose of coordinating seizure and confiscation actions pursuant to a request under this Act." Source: Pacific Islands Legal Information Institute Cook Islands' Mutual Assistance in Criminal Matters Act 2003, amended by the Mutual Assistance in Criminal Matters Amendment Act 2017 9. Refusal or postponement of assistance The Attorney-General may, in respect of any request from a foreign country for mutual assistance in any investigation commenced or proceeding instituted in that foreign country relating to a serious offence - (a) refuse the request, in whole or in part, on the ground that to grant the request would be likely to prejudice the sovereignty, security or other essential public interest of the Cook Islands; or (b) after consulting with the relevant authority of the foreign country, postpone the request, in whole or in part, on the ground that granting the request immediately would be likely to prejudice the conduct of an investigation or proceeding in the Cook Islands. (2) However, the Attorney-General must not refuse or postpone a request for assistance solely or primarily on either of the following grounds - (a) that the request would involve a breach of secrecy or confidentiality obligations or requirements relating to one or more financial institutions; (b) the relevant offence involves fiscal matters. Source: UNODC SHERLOC Database of Legislation

Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA)

Consider an excerpt of Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) as illustration of successful regional cooperation on criminal justice matters.

Article 1. Definition of the European arrest warrant and obligation to execute it

1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

Article 2. Scope of the European arrest warrant

1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.

2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:

3. • participation in a criminal organisation,
   • terrorism,
   • trafficking in human beings,
   • sexual exploitation of children and child pornography,
   • illicit trafficking in narcotic drugs and psychotropic substances,
   • illicit trafficking in weapons, munitions and explosives,
   • corruption,
   • fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests,
   • laundering of the proceeds of crime,
   • counterfeiting currency, including of the euro,
   • computer-related crime,
   • environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
   • facilitation of unauthorised entry and residence,
   • murder, grievous bodily injury,
   • illicit trade in human organs and tissue,
   • kidnapping, illegal restraint and hostage-taking,
   • racism and xenophobia,
   • organised or armed robbery,
   • illicit trafficking in cultural goods, including antiques and works of art,
   • swindling,
   • racketeering and extortion,
   • counterfeiting and piracy of products,
   • forgery of administrative documents and trafficking therein,
   • forgery of means of payment,
   • illicit trafficking in hormonal substances and other growth promoters,
   • illicit trafficking in nuclear or radioactive materials,
   • trafficking in stolen vehicles,
   • rape,
   • arson,
   • crimes within the jurisdiction of the International Criminal Court,
   • unlawful seizure of aircraft/ships,
   • sabotage.

4. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission pursuant to Article 34(3), whether the list should be extended or amended.

5. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.

Article 3. Grounds for mandatory non-execution of the European arrest warrant

The judicial authority of the Member State of execution (hereinafter "executing judicial authority") shall refuse to execute the European arrest warrant in the following cases:

1. If the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law;

2. If the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;

3. If the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State.

Article 4. Grounds for optional non-execution of the European arrest warrant

The executing judicial authority may refuse to execute the European arrest warrant:

1. If, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State; however, in relation to taxes or duties, customs and exchange, execution of the European arrest warrant shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing Member State;

2. Where the person who is the subject of the European arrest warrant is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based;

3. Where the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings;

4. Where the criminal prosecution or punishment of the requested person is statute-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law;

5. If the executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country;

6. If the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law;

7. Where the European arrest warrant relates to offences which:

8. • are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or
   • have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory.

Article 5. Guarantees to be given by the issuing Member State in particular cases

The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:

1. Where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment;

2. If the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure;

3. Where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State

Source: EUR-Lex. Access to European Union law

Extradition Law of the People's Republic of China

The excerpt of the Extradition Law of the People's Republic of China can be used in class to illustrate how requests for extradition should be legally made by a foreign State to the People's Republic of China and under what conditions extradition may be rejected.

Chapter I

General Provisions

Article 1

This Law is enacted for the purpose of ensuring normal extradition, strengthening international cooperation in punishing crimes, protecting the lawful rights and interests of individuals and organizations, safeguarding national interests and maintaining public order.

Article 2

This Law is applicable to extradition conducted between the People's Republic of China and foreign states.

Article 3

The People's Republic of China cooperates with foreign states in extradition on the basis of equality and reciprocity. No cooperation in extradition may impair the sovereignty, security or public interests of the People's Republic of China.

Article 4

The People's Republic of China and foreign states shall communicate with each other through diplomatic channels for extradition. The Ministry of Foreign Affairs of the People's Republic of China is designated as the communicating authority for extradition.

Where in an extradition treaty there are special provisions to govern the communicating authority, the provisions there shall prevail.

Article 5

In handling cases of extradition, compulsory measures including detention, arrest and residential surveillance may, depending on the circumstances, be taken against the person sought.

Article 6

The terms used in this Law are defined as follows:

1. "the person sought" refers to the person for whom a request for grant of extradition is made by a requesting state;
2. "the person extradited" refers to the person extradited from the requested state to the requesting state;
3. "extradition treaty" refers to a treaty on extradition, which is concluded between the People's Republic of China and a foreign state or to which both the People's Republic of China and a foreign state are parties, or any other treaty which contains provisions in respect of extradition.

Chapter II

Conditions for Extradition

Article 7

Request for extradition made by a foreign state to the People's Republic of China may be granted only when it meets the following conditions:

1. The conduct indicated in the request for extradition constitutes an offence according to the laws of both the People's Republic of China and the Requesting State; and
2. Where the request for extradition is made for the purpose of instituting criminal proceedings, the offence indicated in the request for extradition is, under the laws of both the People's Republic of China and the Requesting State, punishable by a fixed term of imprisonment for one year or more or by any other heavier criminal penalty; where the request for extradition is made for the purpose of executing a criminal penalty, the period of sentence that remains to be served by the person sought is at least six months at the time when the request is made.

If the request for extradition concerns miscellaneous offences which conform to the provisions of Subparagraph (1) of the preceding paragraph, as long as one of the offences conforms to the provisions of Subparagraph (2) of the preceding paragraph, extradition may be granted for all of those offences.

Article 8

The request for extradition made by a foreign state to the People's Republic of China shall be rejected if:

1. The person sought is a national of the People's Republic of China under the laws of the People's Republic of China;
2. At the time the request is received, the judicial organ of the People's Republic of China has rendered an effective judgment or terminated the criminal proceedings in respect of the offence indicated in the request for extradition;
3. The request for extradition is made for a political offence, or the People's Republic of China has granted asylum to the person sought;
4. The person sought is one against whom penal proceedings instituted or punishment may be executed for reasons of that person's race, religion, nationality, sex, political opinion or personal status, or that person may, for any of those reasons, be subjected to unfair treatment in judicial proceedings;
5. The offence indicated in the request for extradition is a purely military offence under the laws of the People's Republic of China or the laws of the Requesting State;
6. The person sought is, under the laws of the People's Republic of China or the laws of the Requesting State, immune from criminal responsibility because, at the time the request is received, the limitation period for prosecuting the offence expires or the person is pardoned, or for other reasons;
7. The person sought has been or will probably be subjected to torture or other cruel, inhuman or humiliating treatment or punishment in the Requesting State;
8. The request for extradition is made by the Requesting State on the basis of a judgment rendered by default, unless the Requesting State undertakes that the person sought has the opportunity to have the case retried under conditions of his presence.

Article 9

The request for extradition made by a foreign state to the People's Republic of China may be rejected if:

1. The People's Republic of China has criminal jurisprudence over the offence indicated in the request and criminal proceedings are being instituted against the person or preparations are being made for such proceedings; or
2. Extradition is incompatible with humanitarian considerations in view of the age, health or other conditions of the person sought.