PART II
Extradition Generally
Application of Part II.
8.—(1) Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Minister is satisfied that reciprocal facilities to that effect will be afforded by another country, the Minister for Foreign Affairs may, after consultation with the Minister, by order apply this Part—
(a) in relation to that country, or
(b) in relation to a place or territory for whose external relations that country is (in whole or in part) responsible.
(1A) Where at any time after the making of an order under subsection (1) a country becomes a party to an extradition agreement to which that order applies, the Minister for Foreign Affairs may, after consultation with the Minister, by order so declare, and this Part shall, upon the making of the second-mentioned order apply—
(a) to that country, or
(b) if that country became a party to the extradition agreement concerned for the purpose only of its applying in relation to a place or territory for whose external relations that country is (in whole or in part) responsible, to that place or territory.
(2) Where the Government have made an arrangement amending an extradition agreement the Minister for Foreign Affairs may, after consultation with the Minister, by order so declare and the extradition agreement shall thereupon have effect as so amended.
(3) An order relating to an extradition agreement (other than an order under subsection (1A) (inserted by section 23 (a) of the Extradition (European Union Conventions) Act, 2001)) shall recite or embody the terms of the agreement and shall be evidence of the making of the agreement and of its terms.
(3A) An order under subsection (1A) shall in relation to the extradition agreement concerned recite or embody the terms of any reservation or declaration entered to that agreement by a country to which the order applies, and shall be evidence of the reservation or declaration (if any) and of its terms.
(3B) An order under subsection (2) shall recite or embody the terms of the amendment and shall be evidence of the making of the arrangement amending the extradition agreement concerned and of the terms of the amendment.
(4) An order applying this Part in relation to any country otherwise than in pursuance of an extradition agreement may be made subject to such conditions, exceptions and qualifications as may be specified in the order.
(5) Every extradition agreement and every order applying this Part otherwise than in pursuance of an extradition agreement shall, subject to the provisions of this Part, have the force of law in accordance with its terms.
(6) The Minister for Foreign Affairs may, after consultation with the Minister, by order revoke or amend an order under this section.
(7) On the revocation of an order applying this Part in relation to any country, this Part shall cease to apply in relation to that country.
(8) A notice of the making of each order under this section shall be published in Iris Oifigiúil as soon as may be after it is made.
(9) An order under this section in force immediatly before the commencement of the European Arrest Warrant Act 2003 shall continue in force after such commencement as if made under this section (as amended by section 49 of that Act), and may be amended or revoked accordingly).
Obligation to extradite.
[Art. 1]
9.—Where a country in relation to which this Part applies duly requests the surrender of a person who is being proceeded against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person shall, subject to and in accordance with the provisions of this Part, be surrendered to that country.
Extraditable offences.
[Art. 2]
10.—(1) Subject to subsection (2), extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty and for which, if there has been a conviction and sentence in the requesting country, imprisonment for a period of at least four months or a more severe penalty has been imposed.
(1A) Subject to subsection (2A), extradition to a requesting country that is a Convention country shall be granted only in respect of an offence that is punishable—
(a) under the laws of that country, by imprisonment or detention for a maximum period of not less than one year or by a more severe penalty, and
(b) under the laws of the State, by imprisonment or detention for a maximum period of not less than 6 months or by a more severe penalty,
and for which, if there has been a conviction and sentence in the requesting country, imprisonment for a period of not less than 4 months or a more severe penalty has been imposed.
(2) If a request is made for extradition in respect of an offence to which subsection (1) applies and the request includes also any other offence which is punishable under the laws of the requesting country and of the State but does not comply with the conditions as to the period of imprisonment which may be, or has been, imposed, then extradition may, subject to the provisions of this Part, be granted also in respect of the latter offence.
(2A) If a request is made by a Convention country for extradition for—
(a) an offence to which subsection (1A) applies, and
(b) an offence punishable under the laws of that country and of the State in respect of which there is a failure to comply with subsection (1A),
extradition may, subject to this Part, be granted in respect of the second-mentioned offence, but where extradition is refused for the first-mentioned offence it shall be refused for the second-mentioned offence also.
(3) In this section "an offence punishable under the laws of the State" means—
(a) an act that, if committed in the State on the day on which the request for extradition is made, would constitute an offence, or
(b) in the case of an offence under the law of a requesting country consisting of the commission of one or more acts including any act committed in the State (in this paragraph referred to as 'the act concerned'), such one or more acts, being acts that, if committed in the State on the day on which the act concerned was committed or alleged to have been committed would constitute an offence,
and cognate words shall be construed accordingly.
(4) In this section 'an offence punishable under the laws of the requesting country' means an offence punishable under the laws of the requesting country on—
(a) the day on which the offence was committed or is alleged to have been committed, and
(b) the day on which the request for extradition is made,
and cognate words shall be construed accordingly.
Political offences.
[Art. 3]
11.—(1) Extradition shall not be granted for an offence which is a political offence or an offence connected with a political offence.
(2) The same rule shall apply if 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 his race, religion, nationality or political opinion or that that person's position may be prejudiced for any of these reasons.
(2A) The same rule shall apply if there are substantial grounds for believing that if the request for extradition is granted the person claimed may be subjected to torture.
(3) (a) This subsection applies to an offence of which a person is accused or has been convicted outside the State and the act constituting which would, if done within the State, constitute an offence under—
(i) section 3 (grave breaches of Scheduled Conventions) of the Geneva Conventions Act 1962, as amended by section 3 of the Geneva Conventions (Amendment) Act 1998, and
(ii) section 7 (genocide, crimes against humanity and war crimes) or 8 (ancillary offences) of the International Criminal Court Act 2006.
(b) For the purposes of this Part and without prejudice to section 3 (certain offences not to be regarded as political offences) of the Extradition (European Convention on the Suppression of Terrorism) Act 1987, an offence to which this subsection applies shall not be regarded as a political offence or an offence connected with a political offence.
Military offences.
[Art. 4]
12.—Extradition shall not be granted for offences under military law which are not offences under ordinary criminal law.
Revenue offences.
[Art. 5]
13.—Extradition shall not be granted for revenue offences unless the relevant extradition provisions otherwise provide.
Irish citizens.
[Art. 6.1 (a)]
14.—Extradition shall not be granted where a person claimed is a citizen of Ireland, unless—
(a) the relevant extradition provisions or this Act otherwise provide, or,
(b) the law of the requesting country does not prohibit the surrender by the requesting country of a citizen of that country to the State for proseuction or punishment for an offence.
Proceedings in State for same offence.
[Art. 7]
15.—(1) Extradition shall not be granted for an offence which is also an offence under the law of the State if—
(a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings for the offence against the person claimed, or
(b) proceedings for the offence are pending in the State against the person claimed.
(2) Extradition may be refused by the Minister for an offence which is also an offence under the law of the State if the Director of Public Prosecutions or the Attorney General has decided either not to institute or to terminate proceedings against the person claimed in respect of the offence.
Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.
Persons convicted in abstentia
[Art. 8]
16.—Extradition shall not be granted where the person claimed is being requested for the carrying out of a sentence and he or she did not appear in person at the trial resulting in the sentence, unless the requesting country has given an undertaking in writing to the Minister that the person claimed may have his or her conviction set aside and will, upon being surrendered, be given the opportunity of a retrial in respect of that offence.
Non bis in idem.
[Art. 9]
17.—Extradition shall not be granted if final judgment has been passed in the State or, in accordance with the law of a third country, in that third country, upon the person claimed in respect of the offence for which extradition is requested.
Lapse of time.
[Art. 10]
18.—Extradition shall not be granted when the person claimed has, according to the law of either the requesting country or the State, become immune by reason of lapse of time from prosecution or punishment.
Pardon on amnesty
18A.—(1) Extradition shall not be granted where the person claimed has been granted a pardon under Article 13.6 of the Constitution in respect of an offence consisting of an act that constitutes in whole or in part the offence under the law of the requesting country in respect of which extradition is sought.
(2) Extradition shall not be granted where the person claimed has, in accordance with the law of the requesting country, become immune, by virtue of any amnesty or pardon, from prosecution or punishment for the offence concerned.
(3) Extradition shall not be granted where the person claimed has, by virtue of any Act of the Oireachtas, become immune from prosecution or punishment for any offence consisting of an act that constitutes in whole or in part the offence under the law of the requesting country in respect of which extradition is sought.
Capital punishment.
[Art. 11]
19.—Extradition shall not be granted for an offence which is punishable by death under the law of the requesting country but is of a category for which the death penalty is not provided for by the law of the State or is not generally carried out unless the requesting country gives such assurance as the Minister considers sufficient that the death penalty will not be carried out.
Rule of specialty.
[Art. 14]
20.—(1) Subject to subsection (1a) (inserted by section 15(b) of the Extradition (European Union Conventions) Act, 2001), extradition shall not be granted unless provision is made by the law of the requesting country or by the extradition agreement—
(a) that the person claimed shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order, or otherwise restricted in his personal freedom, for any offence committed prior to his surrender other than that for which his extradition is requested, except in the following cases—
(i) subject to section 20A (inserted by section 7 (b) of the Extradition (European Union Conventions) Act, 2001), with the consent of the Minister, or
(ii) where that person, having had an opportunity to leave the territory of that country, has not done so within forty-five days of his final discharge in respect of the offence for which he was extradited or has returned to the territory of that country after leaving it, and
(b) that where the description of the offence charged in the requesting country is altered in the course of proceedings, he shall only be proceeded against or sentenced in so far as the offence under its new description is shown by its constituent elements to be an offence which would allow extradition.
(1A) Extradition to a Convention country of a person claimed shall not be refused on the grounds only that it is intended—
(a) to proceed against him in that country for an offence alleged to have been committed by him before his surrender (other than an offence to which the request for extradition relates) provided that—
(i) upon conviction he is not liable to a term of imprisonment or detention, or
(ii) in circumstances where upon conviction he is liable to a term of imprisonment or detention and such other penalty as does not involve a restriction of his personal liberty, the High Court is satisfied that the said other penalty only will be imposed should he be convicted of the offence concerned,
(b) to impose in the Convention country concerned a penalty (other than a penalty consisting of the restriction of the person's liberty) including a financial penalty in respect of an offence—
(i) of which the person claimed has been convicted,
(ii) that was committed before his surrender, and
(iii) that is not an offence to which the request relates,
notwithstanding that where such person fails or refuses to pay the penalty concerned (or, in the case of a penalty that is not a financial penalty, fails or refuses to submit to any measure or comply with any requirements of which the penalty consists), he may under the law of that Convention country be detained or otherwise deprived of his personal liberty, or
(c) to proceed against or detain him in the Convention country concerned for the purpose of executing a sentence or order of detention in respect of an offence—
(i) of which the person claimed has been convicted,
(ii) that was committed before his surrender, and
(iii) that is not an offence to which the request relates,
or otherwise restrict his personal liberty as a consequence of being convicted of such offence, provided that—
(I) after his surrender he consents to such execution or to his personal liberty being so restricted and, in the case of an Irish citizen, the Minister so consents also, and
(II) under the law of the Convention country, such consent shall be given before the competent judicial authority in that country and be recorded in accordance with the law of that country.
(2) Notwithstanding anything in subsection (1), the fact that the law of the requesting country permits the taking of any measures necessary to remove the person from its territory or any measures necessary under its law, including proceedings by default, to prevent any legal effects of lapse of time shall not of itself prevent his extradition.
(3) The consent of the Minister shall not be given unless a request for consent is submitted by the requesting country, supported by the documents mentioned in section 25 and a legal record of any statement made by the extradited person in respect of the offence concerned.
(4) The consent of the Minister shall be given if the offence for which it is requested is itself one for which there is an obligation to grant extradition.
Waiver of the rule of speciality
20A.—(1) The Minister may, where a person whose extradition is sought by a Convention country consents—
(a) under section 29A to his being surrendered to that country, and
(b) voluntarily before the High Court to the Minister giving his consent under section 20(1)(a)(i), and is aware of the consequences of the Minister so doing,
give his consent under the said section 20(1)(a)(i).
(2) A person who has consented in accordance with subsection (1) to the Minister giving his consent under section 20(1)(a)(i) may at any time thereafter, but before the giving of such consent by the Minister, withdraw his consent, and if the person so withdraws his consent the Minister shall not give his consent under section 20(1)(a)(i).
(3) The Minister shall not give his consent under section 20(1)(a)(i) in accordance with this section on a day that is before the day on which he makes an order under section 33 in respect of the person concerned.
Re-extradition to a third country.
[Art. 15]
21.—(1) Extradition shall not be granted unless provision is made by the law of the requesting country or by the extradition agreement that that country shall not surrender to another country a person surrendered to the requesting country and sought by the other country for an offence committed before his surrender to the requesting country, except in the following cases—
(a) with the consent of the Minister, or
(b) where that person, having had an opportunity to leave the territory of that country, has not done so within forty-five days of his final discharge in respect of the offence for which he was extradited or has returned to the territory of that country after leaving it.
(2) Before acceding to a request for consent to the extradition of a person to whom subsection (1) applies, the Minister may request the production of the documents mentioned in section 25.
(3) A person who has been surrendered to the State by a requested country shall not be surrendered to a third country for an offence committed before his surrender, except in the following cases—
(a) with the consent of the requested country signified under the seal of a minister of state, ministry or department of state of that country or such other person as performs in that country functions the same as or similar to those performed by the Minister under this Act, as may be appropriate, which seal shall be judicially noticed, or
(b) where that person, having had an opportunity to leave the State, has not done so within forty-five days of his final discharge in respect of the offence for which he was surrendered to the State or has returned to the State after leaving it.
Evidence of commission of offence by person claimed.
22.—Where the relevant extradition provisions require the production by the requesting country of evidence as to the commission by the person claimed of the offence for which extradition is requested, extradition shall not be granted unless sufficient evidence is produced to satisfy the requirement.
Request for extradition.
[Art. 12.1]
23.—(1) A request for the extradition of any person shall be made in writing and shall be communicated by—
(a) a diplomatic agent of the requesting country, accredited to the State, or
(aa) the means specified in an order under subsection (2), or
(b) any other means provided in the relevant extradition provisions.
(2) The Minister for Foreign Affairs may, after consultation with the Minister, by order provide that a request for the extradition of any person by a country, being a country in relation to which this Part applies that is specified in the order, may be communicated—
(a) directly to the Minister, and
(b) by electronic or other methods, or both, or by such a combination of both, as may be specified in the order, where such means of communication have been arranged with that country by direct agreement.
(3) An order under subsection (2), in addition to the matters referred to in that subsection and in relation to a country specified in the order—
(a) shall specify the authority of, or other person in, the country, by which or by whom a request for extradition may be made (in this section referred to as the ‘sender’), and
(b) may provide for any other relevant or ancillary matters in relation to the means of communication of requests for extradition that have been arranged by direct agreement.
(4) An order under subsection (2) shall be evidence that the means of communication, and the sender, specified in it have been arranged by direct agreement with the country concerned.
(5) Where a request for extradition, communicated by the means provided in a relevant order under subsection (2), includes a document that is an electronic copy of a source document—
(a) the sender shall provide the Minister with an electronic copy of a certificate of the sender stating that the electronic copy of the source document corresponds to the source document (and in this subsection the electronic copy of the source document, so certified, shall be referred to as the ‘corresponding electronic copy’),
(b) the corresponding electronic copy, and any reproduction by electronic means thereof in paper or similar format in legible form, shall, subject to subsection
(6), be deemed to be the source document, and
(c) where the source document would be received in evidence without further proof in proceedings to which this Part applies, the corresponding electronic copy, or any reproduction thereof, that is deemed to be that source document in accordance with paragraph (b), shall, subject to subsection (6), be received in evidence without further proof and, where the source document has been sealed, judicial notice shall be taken of the image of that seal in that corresponding electronic copy or the said reproduction thereof.
(6) If the Minister is not satisfied that a corresponding electronic copy within the meaning of subsection (5), or any reproduction by electronic means thereof as referred to in subsection (5), corresponds to the source document concerned, he or she may require the sender to cause the source document, or a true copy thereof, to be provided directly to him or her within such period as he or she may specify.
(7) For the purposes of subsection (6), a true copy of a source document is a document that purports to be certified by—
(a) the judicial authority in the requesting country that issued the source document, or
(b) an officer of the requesting country duly authorised to so do,
to be a true copy of the source document and, where a source document would be received in evidence without further proof in proceedings to which this Part applies, the true copy thereof shall be received in evidence without further proof, and where the seal of the judicial authority or the officer concerned has been affixed to the true copy, judicial notice shall be taken of that seal.
(8) In this section, a reference to a request for extradition includes a reference to the documents referred to in paragraphs (a) to (e) of section 25(1) supporting the request.
(9) In this section, ‘source document’, in relation to an electronic copy, means the document, required by or under this Act to be provided in a request for extradition, of which the electronic copy is made.
Facsimile transmission of documents.
23A.—(1) For the purposes of a request for extradition from a Convention country, a facsimile copy of a document to which paragraph (a), (b), (c), (d) or (e) of section 25(1) applies may be transmitted by the Central Authority of the Convention country concerned to the Central Authority in the State by means of the use of a facsimile machine fitted with a cryptographic device that is in operation during the transmission.
(2) The facsimile copy of a document transmitted in accordance with subsection (1) shall include—
(a) a copy of a certificate of the Central Authority of the Convention country concerned stating that the copy of the document so transmitted corresponds to the original document,
(b) a description of the pagination of that document, and
(c) a statement that the cryptographic device fitted to the facsimile machine that was used to transmit that facsimile copy was in operation during the transmission concerned.
(3) If the Central Authority in the State is not satisfied that the facsimile copy of a document transmitted to him in accordance with subsection (1) corresponds to the document of which it purports to be a facsimile copy, he may require the Central Authority of the requesting country to cause the original document or a true copy thereof to be provided to him by—
(a) a diplomatic agent of the requesting country, accredited to the State, or
(b) any other means agreed by the Central Authority in the State and the Central Authority of the Convention country concerned,
within such period as he may specify.
Conflicting requests.
[Art. 17]
24.—If extradition is requested concurrently by more than one country, either for the same offence or for different offences, the Minister shall decide which, if any, of the requests is to be proceeded with under this Part, 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 surrender to another country.
Documents to support request.
[Art. 12.2]
25.—(1) A request for extradition shall be supported by the following documents—
(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or, as the case may be, of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting country;
(b) a statement of each offence for which extradition is requested specifying, as accurately as possible, the time and place of commission, its legal description and a reference to the relevant provisions of the law of the requesting country;
(c) a copy or reproduction of the relevant enactments of the requesting country or, where this is not possible, a statement of the relevant law;
(d) as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality, including, where available, any fingerprint, palmprint or photograph, and
(e) any other document required under the relevant extradition provisions.
(2) For the purposes of a request for extradition from a Convention country, a document shall be deemed to be an authenticated copy if it has been certified as a true copy by the judicial authority that issued the original or by an officer of the Central Authority of the Convention country concerned duly authorised to so do.
Warrant of arrest.
26.—(1) (a) If the Minister receives a request made in accordance with this Part for the extradition of any person, he shall, subject to the provisions of this section, certify that the request has been made.
(b) On production to a judge of the High Court of a certificate of the Minister under paragraph (a) stating that a request referred to in that paragraph has been made, the judge shall issue a warrant for the arrest of the person concerned unless a warrant for his arrest has been issued under section 27.
(2) A warrant issued under this section may be executed by any member of the Garda Síochána in any part of the State and may be so executed notwithstanding that it is not in the possession of the member at the time; and the warrant shall be shown to, and a copy of same given to, the person arrested at the time of such arrest or, if the warrant is not then in the possession of the member, within 24 hours thereafter.
(3) If the Minister is of opinion that the information communicated to him in pursuance of section 25 is insufficient, he may request the requesting country to furnish such further information as he thinks proper and may fix a time-limit for the receipt thereof.
(4) The Minister may refuse extradition if he is of opinion that the case is one in which extradition is prohibited under any provision of this Part or under the relevant extradition, provisions.
(5) A person arrested under a warrant issued under this section shall be brought as soon as may be before a judge of the High Court.
(6) Where a person has been arrested under a warrant issued under this section, then, in any proceedings it shall be presumed, unless the contrary is proved, that a request for the extradition of the person has been duly made and has been duly received by the Minister.
Provisional arrest.
[Art. 16]
27.—(1) A judge of the High Court may, without a certificate of the Minister under section 26 (1) (a), issue a warrant for the arrest of any person on the sworn information of a member of the Garda Síochána not below the rank of inspector that a request for the provisional arrest of that person has been made, on the ground of urgency, on behalf of a country in relation to which this Part applies and on being satisfied that the request complies with the requirements of this section.
(2) A request for the provisional arrest of any person shall—
(a) state that one of the documents mentioned in paragraph (a) of section 25 exists in respect of that person and that it is intended to send a request for his extradition,
(b) specify the nature of the offence and the time at which and the place where the offence is alleged to have been committed,
(c) give a description of the person whose arrest is sought, and
(d) include a statement setting out the ground of urgency concerned.
(2A) A request for the provisional arrest of a person made on behalf of a requesting country that is a Convention country shall—
(a) state that one of the documents mentioned in paragraph (a) of section 25(1) exists in respect of that person,
(b) be accompanied by a statement of the offences to which the request relates specifying the nature and description under the law of the requesting country of the offences concerned,
(c) specify the circumstances in which the offences were committed or alleged to have been committed including the time and place of their commission or alleged commission, and the degree of involvement or alleged degree of involvement of the person to whom the request relates in their commission or alleged commission, and
(d) specify the penalties to which that person would be liable if convicted of the offences concerned or, where he has been convicted of those offences, the penalties that have been imposed or, where he has been convicted of those offences but not yet sentenced, the penalties to which he is liable,
hereafter in this section referred to as "information furnished under subsection (2A)".
(2B) A member of the Garda Síochána not below the rank of inspector shall provide a person, who is provisionally arrested pursuant to a warrant issued on foot of a request to which subsection (2A) applies, with the information furnished under subsection (2A) and shall inform him of his right to consent to his surrender under section 29A(1) (inserted by section 6(b) of the Extradition (European Union Conventions) Act, 2001) and inquire of him whether he wishes to so consent.
(3) A request for provisional arrest may be transmitted in writing, or by any means capable of producing a written record under conditions allowing its authenticity to be established.
(3A) For the purposes of this section an alert shall be deemed to constitute a request for provisional arrest of the person named therein and the provisions of subsection (2) of this section shall not apply.
(3B) (a) The Director of Public Prosecutions shall be a judicial authority for the purposes of requesting the entry of an alert in the SIS for the arrest and extradition of the person named therein.
(b) The issue of a request for extradition by the Director of Public Prosecutions shall be deemed to constitute a request by the Director of Public Prosecutions for entry of an alert in the SIS for the arrest and extradition of the person named therein.
(4) A warrant issued under this section may be executed by any member of the Garda Síochána in any part of the State and may be so executed notwithstanding that it is not in the possession of the member at the time; and the warrant shall be shown to, and a copy of same given to, the person arrested at the time of such arrest or, if the warrant is not then in the possession of the member, within 24 hours thereafter.
(5) Where a justice issues a warrant under subsection (1) he shall forthwith inform the Minister of the issue of the warrant and the Minister may, if he thinks fit, order the warrant to be cancelled and the person arrested thereunder released.
(6) A person arrested under a warrant issued under this section shall, unless the warrant is cancelled under subsection (5), be brought as soon as may be before a judge of the High Court and the judge shall remand the said person in custody or on bail pending—
(a) the receipt by him of a certificate of the Minister under section 26(1)(a) (inserted by section 7(a) of the Act of 1994) stating that the request for extradition has been duly made, or
(b) (in circumstances where the person is remanded in custody) the release of that person under section 35,
(7) If, within the period of 18 days after such person's arrest, no such certificate is produced, he shall be released.
(8) The release of any person under subsection (5) or (7) shall not prejudice his re-arrest and extradition if a request for his extradition is afterwards made.
(9) A warrant for the arrest of a person may be issued under subsection (1) notwithstanding that, previously—
(a) a warrant for the arrest of that person has been issued, or
(b) the issue of such a warrant has been refused.
(10) Where an information is sworn by a member of the Garda Síochána not below the rank of inspector before a judge of the High Court stating that a request for the provisional arrest of a person has been made, on the ground of urgency, on behalf of a country in relation to which this Part applies, then, in any proceedings it shall be presumed, unless the contrary is proved, that a request for the provisional arrest of the person has been made on the ground of urgency on behalf of a country in relation to which this Part applies.
(11) Where a person has been arrested under a warrant issued under this section and a certificate of the Minister under section 26 (1) (a) stating that a request for the extradition of the person has been duly made, has been produced to a judge of the High Court, then, in any proceedings it shall be presumed, unless the contrary is proved, that a request in accordance with this Part for the extradition of the person has been duly made and has been duly received by the Minister.
(12) In this section—
‘alert’ means an alert entered in the SIS for the arrest and extradition, on foot of an extradition warrant, of the person named therein;
‘Council Decision’ means Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System;
‘Schengen Convention’ means the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders done at Schengen on 19 June 1990 and includes any amendment to or modification of that Convention whether before or after the passing of this Act but does not include the Council Decision;
‘SIS’ means the system referred to in Title IV of the Schengen Convention or, as appropriate, the system established under Chapter 1 of the Council Decision.
Power of adjournment and remand
28.—(1) The High Court may, if it considers it appropriate to do so in the interests of justice, adjourn any proceedings under this Act either on application or of its own motion, and may remand the person concerned in custody or on bail for the period of the adjournment or such other period as it considers appropriate.
(2) The High Court shall have and may exercise the same powers of remand in relation to any person appearing before it under this Act as it would have if the person were a person brought before it and charged with an indictable offence, including the power to remand the person pending determination of an appeal to the Supreme Court against a decision of the High Court.
Committal or discharge of person whose extradition is requested.
29.—(1) Where a person is before the High Court under section 26 or 27 and the Court is satisfied that—
(a) the extradition of that person has been duly requested, and
(b) this Part applies in relation to the requesting country, and
(c) extradition of the person claimed is not prohibited by this Part or by the relevant extradition provisions, and
(d) the documents required to support a request for extradition under section 25 have been produced,
the Court shall make an order committing that person to a prison (or, if he is not more than twenty-one years of age, to a remand institution) there to await the order of the Minister for his extradition.
(2) For the avoidance of doubt, the Court, if satisfied that no injustice would be caused to the person by making an order under subsection (1), may make that order even if—
(a) there is a defect in, or an omission of, a non-substantial detail in the request for extradition or any document supporting the request,
(b) there is a variance between any such document and the evidence adduced before the Court, so long as the Court is satisfied that the variance is explained by the evidence, or
(c) there has been a technical failure to comply with a provision of this Act, so long as the Court is satisfied that the failure does not impinge on the merits of the request for extradition.
(3) The Court, on making an order under subsection (1), shall—
(a) inform the person to whom it relates that he will not be surrendered, except with his consent, until after the expiration of fifteen days from the date of his committal and inform him also of the provisions of section 4.2° of Article 40 of the Constitution (which relates to the making of a complaint to the District Court by or on behalf of any person alleging that that person is unlawfully detained), and
(b) cause a certificate of the committal to be sent forthwith to the Minister.
(4) Where the person claimed is not committed under subsection (1) the Court shall order him to be discharged.
(5) No appeal shall lie to the Supreme Court from an order of the High Court under this section, except on a point of law.
(6) Sections 10 and 11 of the Criminal Justice Act, 1960 , shall apply to a person committed to a remand institution under this section.
Consent to surrender
29A.—(1) Where a person is brought before the High Court—
(a) under section 26, pursuant to a request from a Convention country for his extradition, or
(b) under section 27, pursuant to a request from a Convention country for his provisional arrest,
he may consent to his being surrendered to the Convention country concerned.
(2) Notwithstanding section 29, where a person is brought before the Hight Court under section 27, pursuant to a request from a Convention country to which this Part applies for the provisional arrest of that person, and the court is satisfied that—
(a) there has been compliance with subsection (2A) of the said section 27 (inserted by section 5 of the Extradition (European Union Conventions) Act, 2001),
(b) it is intended that a request will be made by or on behalf of the Convention country for the person's extradition, unless he consents to being surrendered,
(c) the person consents voluntarily to his being surrendered to the Convention country and is aware of the consequences of his so consenting,
(d) extradition of the person claimed is not prohibited by this Part or by the relevant extradition provisions,
(e) where the person claimed is a citizen of Ireland, the Minister consents to the person being surrendered to the Convention country concerned,
the court shall make an order committing that person to a prison (or, if he is not more than 21 years of age, to a remand institution) there to await the order of the Minister for his extradition.
(3) Notwithstanding section 29, where a person is brought before the High Court under section 26, pursuant to a request from a Convention country for the extradition of that person, and the court is satisfied that—
(a) the extradition of that person has been duly requested,
(b) this Part applies in relation to that Convention country,
(c) extradition of the person claimed is not prohibited by this Part or by the relevant extradition provisions,
(d) the documents required to support a request for extradition under section 25 have been produced,
(e) the person consents voluntarily to his being surrendered to the Convention country and is aware of the consequences of his so consenting, and
(f) where the person is a citizen of Ireland, the Minister consents to the person being surrendered to the Convention country concerned,
the court shall make an order committing that person to a prison (or, if he is not more than 21 years of age, to a remand institution) there to await the order of the Minister for his extradition.
(4) Where a person consents to his being surrendered under subsection (1), the High Court shall record in writing the giving of such consent and shall cause a copy thereof to be sent forthwith to the Minister.
(5) (a) If a person arrested under section 27 consents under subsection (1) to his being surrendered to the Convention country concerned, the Minister shall so inform that country not later than 10 days after the person is so arrested.
(b) Where a person arrested under section 27 does not consent under the said subsection to his being surrendered to the Convention country concerned, the Minister shall so inform that country not later than 10 days after the person is so arrested.
(6) A person who has consented under subsection (1) to his being surrendered to the Convention country concerned may, at any time thereafter but before the making of an order by the Minister under section 33, withdraw his consent and, if he withdraws his consent, the period between the giving of such consent before the High Court and the withdrawal of such consent by him shall not be taken into account for the purpose of calculating the period of 18 days specified in section 27(7).
(7) Where a person in respect of whom the High Court has made an order of committal under subsection (2) withdraws his consent to being surrendered to the Convention country concerned, he shall, as soon as may be after a request for his extradition has been received by the Minister from that Convention country, be brought before the High Court and the court shall affirm the said order of committal provided that, in relation to that request, there has been compliance with this Act.
(8) Subsection (2) of section 29 (inserted by section 9 of the Act of 1994) and subsections (4) and (6) of that section shall apply for the purposes of this section, subject to the modification that references in subsection (4) to subsection (1) shall be construed as references to subsection (2) or (3) of this section.
Removal of committed person to hospital or other place.
30.—The Minister may by order cause a person committed under section 29 to be removed to a hospital or any other place if the Minister thinks it necessary so to do in the interests of his health and that person shall, while detained in that hospital or place, be in lawful custody.
Lapse of time before surrender.
31. A person committed under section 29 shall not be surrendered, except with his consent, given before a judge of the High Court, to the requesting country until the expiration of 15 days from the date of his committal or until the conclusion of any habeas corpus proceedings brought by him or on his behalf, whichever is the later.
Postponement of surrender.
[Art. 19.1]
32.—The Minister may postpone the surrender of a person claimed in order that he may be proceeded against in the State, or (if he has already been convicted) in order that he may serve any sentence imposed on him in the State, for an offence other than that for which his extradition is requested.
Surrender of prisoner under order of Minister.
[Art. 21.6]
33.—(1) Subject to sections 31 and 32, the Minister may, if the person committed is not discharged by the decision of the High Court in habeas corpus proceedings, by order direct the person to be surrendered to such other person as in his opinion is duly authorised by the requesting country to receive him and he shall be surrendered accordingly.
(2) Any person to whom an order under subsection (1) directs a person to be surrendered may receive, hold in custody, and convey out of the State the person so surrendered and if the person so surrendered escapes from any custody to which he has been delivered in pursuance of the said order he shall be liable to be retaken in the same manner as any person who escapes from lawful custody.
(3) The Minister shall not make an order under subsection (1) if he is of the opinion that the extradition of the person whose surrender is requested would involve transit through any territory where there is reason to believe that his life or his freedom may be threatened by reason of his race, religion, nationality or political opinion, or that he may be subjected to torture.
Surrender
33A.—(1) Where the High Court makes an order under section 29A (inserted by section 6 (b) of the Extradition (European Union Conventions) Act, 2001) in relation to a person whose surrender is sought by a Convention country, the Minister shall, not later than 20 days after the giving by that person of his consent to being surrendered to that country before that Court, so notify the Convention country in writing.
(2) Subject to subsection (3), the Minister shall make an order under section 33 in respect of a person to whom subsection (1) applies not later than 20 days after the giving of notification to the Convention country concerned under the said subsection (1).
(3) Where, for reasons beyond the control of the Minister, the Minister is unable to comply with subsection (2), he shall so notify the Convention country concerned and shall make an order under the said section 33 on such day as may be agreed by the Minister and that country.
(4) Where a day for the making of an order under section 33 is agreed in accordance with subsection (3), the person whose surrender is sought shall be surrendered to the Convention country concerned not later than 20 days after such day and if surrender is not effected before the expiration of such period of 20 days the person shall be released.
(5) Subsections (1), (2), (3) and (4) shall not apply where the Minister proposes to postpone the surrender of a person claimed in accordance with section 32.
Discharge of prisoner if not conveyed out of State.
[Art. 18, in pt.]
34.—(1) Subject to section 32 and to subsection (2) of this section, if any person awaiting his surrender under this Part is not surrendered and conveyed out of the State within one month after the committal, or within one month after the conclusion of habeas corpus proceedings brought by him or on his behalf, whichever is the later, the District Court may, on application made by or on behalf of that person and upon proof that reasonable notice of the intention to make the application has been given to the Minister, order the person to be discharged from custody.
(2) Where, on application to the District Court under subsection (1), the Court is satisfied—
(a) that the state of health of the person claimed or other circumstances beyond the control of the State or the requesting country have prevented the person claimed from being conveyed out of the State, and
(b) that it is likely that within a reasonable time such circumstances will no longer prevent his removal, the Court may fix a period within which he may be surrendered and he shall be released if not conveyed out of the State within that period.
General power of Minister to release.
35.—(1) Whenever the Minister is of opinion, in relation to a person who is for the time being on remand or awaiting his surrender under this Part, that extradition is prohibited under any provision of this Part or of the relevant extradition provisions, the Minister may at any time refuse extradition and shall thereupon order the person, if in custody, to be released.
(2) In case it appears to the Minister that the request or intended request for extradition is not being proceeded with, the Minister may order that the said person, if in custody, shall be released.
Seizure and handing over of property.
[Art. 20]
36.—(1) A member of the Garda Síochána executing a warrant under section 26 or 27 may seize and retain any property—
(a) which appears to him to be reasonably required as evidence for the purpose of proving the offence alleged, or
(b) which appears to him to have been acquired as a result of the alleged offence and which—
(i) is found at the time of arrest in the possession of the person arrested under the warrant, or
(ii) is discovered subsequently.
(2) Subject to the provisions of this section, any property seized under subsection (1) shall, if an order is issued by the Minister under section 33 for the surrender of the person claimed, be handed over to any person who appears to the Minister to be duly authorised by the requesting country to receive it as soon as may be after the issue of the order and the said property shall be so handed over notwithstanding that the extradition in question cannot be carried out by reason of the death or escape of the person claimed.
(3) Any property so seized may, if any criminal proceedings to which the property relates are pending in the State, be retained in the State in accordance with law until the conclusion of the said proceedings or may, if the Minister so directs, be handed over on condition that the requesting country shall return the property.
(4) Nothing in this section shall prejudice or derogate from any rights that may lawfully have been acquired by the State or any person in the State in any property to be handed over under this section and where any such rights exist the property shall not be handed over except upon condition that the requesting country shall return it as soon as may be after the trial of the person surrendered and without charge to the State or person having such rights.
Identification procedures.
36A.— (1) Where a member of the Garda Síochána arrests a person under any power conferred by this Act, the member of the Garda Síochána may, in order to assist in verifying or establishing the person’s identity for the purpose of proceedings under this Act and for no other purpose—
(a) take, or cause to be taken, his or her fingerprint,
(b) take, or cause to be taken, his or her palmprint,
(c) photograph him or her or cause him or her to be photographed.
(2) Where a fingerprint, palmprint or photograph taken pursuant to subsection (1) is lost or damaged, or is otherwise unsuitable for use for the purpose referred to in that subsection, it may be taken on a second or any further occasion.
(3) The powers conferred by subsection (1) shall not be exercised except on the authority of a member of the Garda Síochána not below the rank of inspector.
(4) A member of the Garda Síochána may, where a person fails or refuses to allow his or her fingerprint, palmprint or photograph to be taken pursuant to subsection (1), use such force as he or she reasonably considers necessary to take the fingerprint, palmprint or photograph or to cause the fingerprint, palmprint or photograph to be taken.
(5) (a) The powers conferred by subsection (4) shall not be exercised except on the authorisation of a member of the Garda Síochána not below the rank of superintendent.
(b) An authorisation pursuant to paragraph (a) may be given orally or in writing and, if given orally, shall be confirmed in writing as soon as practicable.
(6) Where a member of the Garda Síochána intends to exercise a power conferred by subsection (4), he or she shall inform the person—
(a) of that intention, and
(b) that an authorisation to do so has been given pursuant to subsection (5)(a).
(7) Every fingerprint, palmprint or photograph taken pursuant to subsection (4) shall be taken in the presence of a member of the Garda Síochána not below the rank of inspector.
(8) The taking of every fingerprint, palmprint or photograph pursuant to subsection (4) shall be video-recorded.
(9) Every fingerprint, palmprint or photograph of a person taken in pursuance of a power conferred by this section and every copy and record thereof shall be destroyed within the period of 12 months from the date of the taking of the fingerprint, palmprint or photograph, as the case may be, or on the conclusion of proceedings under this Part in relation to the person, whichever occurs later.
(10) A person who obstructs a member of the Garda Síochána in the exercise of a power under this section shall be guilty of an offence and shall, on summary conviction, be liable to a class A fine or to imprisonment for a term not exceeding 12 months or to both.
(11) Where a fingerprint, palmprint or photograph is transmitted by or on behalf of a requesting country, such fingerprint, palmprint or photograph shall be received in evidence without further proof.
Authentification
37.—(1) In proceedings to which this Part applies, a document supporting a request for extradition, and any evidence in writing received, from a requesting country (other than a Convention country) shall be received in evidence without further proof if it purports—
(a) to be sealed or signed by a judge, magistrate or officer of the requesting country, and
(b) to be certified by being sealed with the seal of a minister of state, ministry, department of state or such other person as performs in that country functions the same as or similar to those performed by the Minister under this Act, as may be appropriate, and judicial notice shall be taken of such seal.
(2) In proceedings to which this Part applies, a document purporting to be a copy of a document supporting a request for extradition from a Convention country shall, subject to subsection (3), be received in evidence without further proof.
(3) In proceedings to which this Part applies, a document that purports to be certified by—
(a) the judicial authority in a Convention country that issued the original, or
(b) an officer of the Central Authority of such a country duly authorised to so do,
to be a true copy of a conviction and sentence or detention order immediately enforceable or, as the case may be, the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of that country, shall be received in evidence without further proof, and where the seal of the judicial authority or Central Authority concerned has been affixed to the document, judicial notice shall be taken of that seal.
Offences committed abroad by Irish citizens.
[cf. Art. 6.2]
38.—(1) Where any citizen of Ireland does any act outside the State which constitutes an offence for which he would be liable to extradition but for the fact that he is a citizen of Ireland he shall be guilty of the like offence and be liable on conviction to the like punishment as if the act were done within the State.
(2) No proceedings for an offence under subsection (1) shall be taken except by direction of the Attorney General, given following a request to that effect made in the manner provided for in section 23 by the country within whose territory the act is alleged to have been committed.
(3) This section shall apply only to acts committed after the commencement of this Act.
(4) For the purpose of the exercise of jurisdiction, in relation to an offence to which subsection (1) applies, by any court of competent jurisdiction the act constituting the offence shall be deemed to have been committed within the area of the Dublin Metropolitan District.
Rule of specialty as applied by the State.
[Art. 14]
39.—(1) This section applies to a person who has been surrendered to the State by a requested country.
(2) Subject to subsection (2A) (inserted by section 16(b) of the Extradition (European Union Conventions) Act, 2001), a person to whom this section applies shall not be proceeded against, sentenced or imprisoned or otherwise restricted in his personal freedom for any offence committed before his surrender other than that for which he was surrendered, except in the following cases
(a) with the consent of the requested country, signified under the seal of a minister of state, minister or department of state of that country or such other persons as performs in that country functions the same as or similar to those performd by the Minister under this Act, as may be appropriate, which seal shall be judicially noticed, or
(b) where that person, having had an opportunity to leave the State, has not done so within forty-five days of his final discharge in respect of the offence for which he was surrendered or has returned to the State after leaving it.
(2A) A person to whom this section applies, who has been surrendered to the State by a Convention country pursuant to a request for his extradition from the Central Authority in the State, may—
(a) be proceeded against for an offence alleged to have been committed by him before his surrender (other than that for which he has been surrendered) provided that—
(i) upon conviction he is not liable to a term of imprisonment or detention,
(ii) in circumstances where, upon conviction, he would be liable to a term of imprisonment or detention or such penalty as does not involve a restriction of his personal liberty, the said other penalty only shall be imposed should he be convicted of the offence concerned,
(b) be subjected to a penalty (other than a penalty consisting of the restriction of his personal liberty) including a financial penalty, where apart from this section the law so provides in respect of an offence—
(i) of which he has been convicted,
(ii) that was committed before his surrender, and
(iii) that is not an offence for which he has been surrendered,
notwithstanding that where such person fails or refuses to pay the penalty concerned (or, in the case of a penalty that is not a financial penalty, fails or refuses to comply with the order of the court by which the penalty has been imposed), he may in accordance with law and apart from this section be detained or otherwise deprived of his personal liberty, or
(c) be proceeded against or, where apart from this section the law so provides, be detained for the purpose of executing a sentence of imprisonment or detention in respect of an offence—
(i) of which he has been convicted,
(ii) that was committed before his surrender, and
(iii) that is not an offence for which he has been surrendered,
or, where apart from this section the law so provides, be otherwise restricted in his personal liberty as a consequence of being convicted of such offence, provided that he has consented to such execution or his personal liberty being so restricted before the High Court which shall, upon being satisfied that the person so consents voluntarily and is aware of the consequences of his so consenting, record that consent.
(3) Where the description of the offence charged is altered in the course of proceedings, he shall only be proceeded against or sentenced in so far as the offence under its new description is shown by its constituent elements to be an offence for which he would be liable to be surrendered to the State.
Transit.
[Art. 21]
40.—(1) Transit through the State of a person being conveyed from one country to another upon his surrender pursuant to an agreement in the nature of an extradition agreement may, subject to—
(a) any relevant extradition provisions,
(b) such conditions, if any, as the Minister thinks proper, and
(c) in circumstances where the country to which he is being conveyed is a Convention country, compliance with subsection (1A) (inserted by section 19 (b) of the Extradition (European Union Conventions) Act, 2001),
be granted by the Minister upon a request to that effect by the country to which he is being conveyed.
(1A) Where a request to which subsection (1) applies is made by a Convention country, the following information shall be provided by or on behalf of the Central Authority in that country in writing to the Central Authority in the State, that is to say:
(a) such information as will enable the person to be identified by the Central Authority in the State,
(b) whether—
(i) there exists an arrest warrant or other document having the same effect as an arrest warrant under the law of the Convention country issued by a judicial authority in that country in respect of the person, or
(ii) the person has been convicted in the Convention country of an offence in respect of which he has been surrendered,
(c) the nature, and description under the law of the Convention country, of the offence in respect of which the person has been surrendered, and
(d) a description of the circumstances in which the offence—
(i) was committed, or
(ii) where the person has not yet been convicted of the offence concerned, is alleged to have been committed,
and the date and place of its commission or alleged commission, as may be appropriate.
(2) The Minister may arrange for the supervision of such transit by the Garda Síochána and the person concerned shall be deemed to be in the custody of any member of the Garda Síochána accompanying him pursuant to such arrangement.
(2A) (a) This subsection applies to an aircraft that has taken off from a place (other than the State) and that is scheduled to land in a place (other than the State) and on board which there is a person who is being conveyed to a Convention country upon his surrender to that country pursuant to an agreement in the nature of an extradition agreement.
(b) Where an aircraft to which this subsection applies, for whatever reason, lands in the State, the Central Authority of the Convention country referred to in paragraph (a) shall, upon its landing or as soon as may be after it lands, comply with subsection (1A) and the said subsection (1A) shall apply subject to any necessary modifications.
(c) While an aircraft to which this subsection applies is in the State, a person referred to in paragraph (a) who is on board that aircraft shall be deemed to be in transit through the State and subsection (2) shall apply accordingly.
