S.I. No. 323/1976:

EXTRADITION ACT, 1965 (PART II) (No. 12) ORDER, 1976.

EXTRADITION ACT, 1965 (PART II) (No. 12) ORDER, 1976.

WHEREAS by the European Convention on Extradition (the terms of which are set out in Part I of the Schedule hereto) done at Paris on the 13th day of December, 1957, to which the State is a party, an arrangement was made with the other countries which are parties to the Convention for the surrender of persons wanted for prosecution or punishment:

AND WHEREAS the Convention was ratified on behalf of the Government on the 2nd day of May, 1966, subject to the reservation specified in the said Part I:

AND WHEREAS the Convention has been ratified by the Government of the Federal Republic of Germany subject to the declarations and reservations by that Government specified in Part II of the said Schedule and it is intended accordingly to apply Part II of the Extradition Act, 1965, in relation to that country:

NOW, the Government, in exercise of the powers conferred on them by section 8 (1) of the Extradition Act, 1965 (No. 17 of 1965), hereby order as follows:

1. (1) This Order may be cited as the Extradition Act, 1965 (Part II) (No. 12) Order, 1976.

(2) The Extradition Act, 1965 (Part II) Orders, 1967 to 1971, and this Order may be cited together as the Extradition Act, 1965 (Part II) Orders, 1967 to 1976.

(3) This Order shall come into operation on the 1st day of January, 1977.

2. Part II of the Extradition Act, 1965, shall apply in relation to the Federal Republic of Germany.

SCHEDULE.

Part I.

THE EUROPEAN CONVENTION ON EXTRADITION.

The Governments signatory hereto, being Members of the Council of Europe,

Considering that the aim of the Council of Europe is to achieve a greater unity between its Members;

Considering that this purpose can be attained by the conclusion of agreements and by common action in legal matters;

Considering that the acceptance of uniform rules with regard to extradition is likely to assist this work of unification,

Have agreed as follows:

Article 1

OBLIGATION TO EXTRADITE.

The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.

Article 2

EXTRADITABLE OFFENCES.

1. Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty. Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months.

2. If the request for extradition includes several separate offences each of which is punishable under the laws of the requesting Party and the requested Party by deprivation of liberty or under a detention order, but of which some do not fulfil the condition with regard to the amount of punishment which may be awarded, the requested Party shall also have the right to grant extradition for the latter offences.

3. Any Contracting Party whose law does not allow extradition for certain of the offences referred to in paragraph 1 of this Article may, in so far as it is concerned, exclude such offences from the application of this Convention.

4. Any Contracting Party which wishes to avail itself of the right provided for in paragraph 3 of this Article shall, at the time of the deposit of its instrument of ratification or accession, transmit to the Secretary-General of the Council of Europe either a list of the offences for which extradition is allowed or a list of those for which it is excluded and shall at the same time indicate the legal provisions which allow or exclude extradition. The Secretary-General of the Council shall forward these lists to the other signatories.

5. If extradition is subsequently excluded in respect of other offences by the law of a Contracting Party, that Party shall notify the Secretary-General. The Secretary-General shall inform the other signatories. Such notification shall not take effect until three months from the date of its receipt by the Secretary-General.

6. Any Party which avails itself of the right provided for in paragraphs 4 or 5 of this Article may at any time apply this Convention to offences which have been excluded from it. It shall inform the Secretary-General of the Council of such changes, and the Secretary-General shall inform the other signatories.

7. Any Party may apply reciprocity in respect of any offences excluded from the application of the Convention under this Article.

Article 3

POLITICAL OFFENCES.

1. Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence.

2. The same rule shall apply if the requested Party has 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.

3. The taking or attempted taking of the life of a Head of State or a member of his family shall not be deemed to be a political offence for the purposes of this Convention.

4. This Article shall not affect any obligations which the Contracting Parties may have undertaken or may undertake under any other international convention of a multilateral character.

Article 4

MILITARY OFFENCES.

Extradition for offences under military law which are not offences under ordinary criminal law is excluded from the application of this Convention.

Article 5

FISCAL OFFENCES.

Extradition shall be granted, in accordance with the provisions of this Convention, for offences in connection with taxes, duties, customs and exchange only if the Contracting Parties have so decided in respect of any such offence or category of offences.

Article 6

EXTRADITION OF NATIONALS.

1. ( a ) A Contracting Party shall have the right to refuse extradition of its nationals.

( b ) Each Contracting Party may, by a declaration made at the time of signature or of deposit of its instrument of ratification or accession, define as far as it is concerned the term "nationals" within the meaning of this Convention.

( c ) Nationality shall be determined as at the time of the decision concerning extradition. If, however, the person claimed is first recognised as a national of the requested Party during the period between the time of the decision and the time contemplated for the surrender, the requested Party may avail itself of the provision contained in sub-paragraph (a) of this Article.

2. If the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. For this purpose, the files, information and exhibits relating to the offence shall be transmitted without charge by the means provided for in Article 12, paragraph 1. The requesting Party shall be informed of the result of its request.

Article 7

PLACE OF COMMISSION.

1. The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory.

2. When the offence for which extradition is requested has been committed outside the territory of the requesting Party, extradition may only be refused if the law of the requested Party does not allow prosecution for the same category of offence when committed outside the latter Party's territory or does not allow extradition for the offence concerned.

Article 8

PENDING PROCEEDINGS FOR THE SAME OFFENCES.

The requested Party may refuse to extradite the person claimed if the competent authorities of such Party are proceeding against him in respect of the offence or offences for which extradition is requested.

Article 9 *

NON BIS IN IDEM.

Extradition shall not be granted if final judgment has been passed by the competent authorities of the requested Party upon the person claimed in respect of the offence or offences for which extradition is requested. Extradition may be refused if the competent authorities of the requested Party have decided either not to institute or to terminate proceedings in respect of the same offence or offences.

*The following reservation was entered at time of ratification of the Convention on behalf of the Irish Government:--

The Irish authorities will not grant extradition if final judgment in respect of the offence for which extradition is requested has been passed in a third State on the person claimed.

Article 10

LAPSE OF TIME.

Extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by reason of lapse of time from prosecution or punishment.

Article 11

CAPITAL PUNISHMENT.

If the offence for which extradition is requested is punishable by death under the law of the requesting Party, and if in respect of such offence the death-penalty is not provided for by the law of the requested Party or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death-penalty will not be carried out.

Article 12

THE REQUEST AND SUPPORTING DOCUMENTS.

1. The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties.

2. The request shall be supported by:

( a ) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or 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 Party;

( b ) a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and

( c ) a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality.

Article 13

SUPPLEMENTARY INFORMATION.

If the information communicated by the requesting Party is found to be insufficient to allow the requested Party to make a decision in pursuance of this Convention, the latter Party shall request the necessary supplementary information and may fix a time-limit for the receipt thereof.

Article 14

RULE OF SPECIALITY.

1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases:

( a ) When the Party which surrendered him consents. A request for consent shall be submitted, accompanied by the documents mentioned in Article 12 and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall be given when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Convention;

( b ) when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.

2. The requesting Party may, however, take 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.

3. When the description of the offence charged is altered in the course of proceedings, the extradited person 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.

Article 15

RE-EXTRADITION TO A THIRD STATE.

Except as provided for in Article 14, paragraph 1 (b), the requesting Party shall not, without the consent of the requested Party, surrender to another Party or to a third State a person surrendered to the requesting Party and sought by the said other Party or third State in respect of offences committed before his surrender. The requested Party may request the production of the documents mentioned in Article 12, paragraph 2.

Article 16

PROVISIONAL ARREST.

1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.

2. The request for provisional arrest shall state that one of the documents mentioned in Article 12, paragraph 2 (a), exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought.

3. A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or through the International Criminal Police Organisation (Interpol) or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request.

4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.

5. Release shall not prejudice re-arrest and extradition if a request for extradition is received subsequently.

Article 17

CONFLICTING REQUESTS.

If extradition is requested concurrently by more than one State, either for the same offence or for different offences, the requested Party 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 18

SURRENDER OF THE PERSON TO BE EXTRADITED.

1. The requested Party shall inform the requesting Party by the means mentioned in Article 12, paragraph 1 of its decision with regard to the extradition.

2. Reasons shall be given for any complete or partial rejection.

3. If the request is agreed to, the requesting Party shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender.

4. Subject to the provisions of paragraph 5 of this Article, if the person claimed has not been taken over on the appointed date, he may be released after the expiry of 15 days and shall in any case be released after the expiry of 30 days. The requested Party may refuse to extradite him for the same offence.

5. If circumstances beyond its control prevent a Party from surrendering or taking over the person to be extradited, it shall notify the other Party. The two Parties shall agree a new date for surrender and the provisions of paragraph 4 of this Article shall apply.

Article 19

POSTPONED OR CONDITIONAL SURRENDER.

1. The requested Party may, after making its decision on the request for extradition, postpone the surrender of the person claimed in order that he may be proceeded against by that Party or, if he has already been convicted, in order that he may serve his sentence in the territory of that Party for an offence other than that for which extradition is requested.

2. The requested Party may, instead of postponing surrender, temporarily surrender the person claimed to the requesting Party in accordance with conditions to be determined by mutual agreement between the Parties.

Article 20

HANDING OVER OF PROPERTY.

1. The requested Party shall, in so far as its law permits and at the request of the requesting Party, seize and hand over property:

( a ) which may be required as evidence or

( b ) which has been acquired as a result of the offence and which, at the time of the arrest, is found in the possession of the person claimed or is discovered subsequently.

2. The property mentioned in paragraph 1 of this Article shall be handed even if extradition, having been agreed to, cannot be carried out owing to the death or escape of the person claimed.

3. When the said property is liable to seizure or confiscation in the territory of the requested Party the latter may, in connection with pending criminal proceedings, temporarily retain it or hand it over on condition that it is returned.

4. Any rights which the requested Party or third parties may have acquired in the said property shall be preserved. Where these rights exist, the property shall be returned without charge to the requested Party as soon as possible after the trial.

Article 21

TRANSIT.

1. Transit through the territory of one of the Contracting Parties shall be granted on submission of a request by the means mentioned in Article 12, paragraph 1, provided that the offence concerned is not considered by the Party requested to grant transit as an offence of a political or purely military character having regard to Articles 3 and 4 of this Convention.

2. Transit of a national, within the meaning of Article 6, of a country requested to grant transit may be refused.

3. Subject to the provisions of paragraph 4 of this Article, it shall be necessary to produce the documents mentioned in Article 12, paragraph 2.

4. If air transport is used, the following provisions shall apply:

( a ) when it is not intended to land, the requesting Party shall notify the Party over whose territory the flight is to be made and shall certify that one of the documents mentioned in Article 12, paragraph 2 (a) exists. In the case of an unscheduled landing, such notification shall have the effect of a request for provisional arrest as provided for in Article 16, and the requesting Party shall submit a formal request for transit;

( b ) when it is intended to land, the requesting Party shall submit a formal request for transit.

5. A Party may, however, at the time of signature or of the deposit of its instrument of ratification of, or accession to, this Convention, declare that it will only grant transit of a person on some or all of the conditions on which it grants extradition. In that event, reciprocity may be applied.

6. The transit of the extradited person shall not be carried out 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.

Article 22

PROCEDURE.

Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party.

Article 23

LANGUAGE TO BE USED.

The documents to be produced shall be in the language of the requesting or requested Party. The requested Party may require a translation into one of the official languages of the Council of Europe to be chosen by it.

Article 24

EXPENSES.

1. Expenses incurred in the territory of the requested Party by reason of extradition shall be borne by that Party.

2. Expenses incurred by reason of transit through the territory of a Party requested to grant transit shall be borne by the requesting Party.

3. In the event of extradition from a non-metropolitan territory of the requested Party, the expenses occasioned by travel between that territory and the metropolitan territory of the requesting Party shall be borne by the latter. The same rule shall apply to expenses occasioned by travel between the non-metropolitan territory of the requested Party and its metropolitan territory.

Article 25

DEFINITION OF "DETENTION ORDER".

For the purposes of this Convention, the expression "detention order " means any order involving deprivation of liberty which has been made by a criminal court in addition to or instead of a prison sentence.

Article 26

RESERVATIONS.

1. Any Contracting Party may, when signing this Convention or when depositing its instrument of ratification or accession, make a reservation in respect of any provision or provisions of the Convention.

2. Any Contracting Party which has made a reservation shall withdraw it as soon as circumstances permit. Such withdrawal shall be made by notification to the Secretary-General of the Council of Europe.

3. A Contracting Party which has made a reservation in respect of a provision of the Convention may not claim application of the said provision by another Party save in so far as it has itself accepted the provision.

Article 27

TERRITORIAL APPLICATION.

1. This Convention shall apply to the metropolitan territories of the Contracting Parties.

2. In respect of France, it shall also apply to Algeria and to the overseas Departments and, in respect of the United Kingdom of Great Britain and Northern Ireland, to the Channel Islands and to the Isle of Man.

3. The Federal Republic of Germany may extend the application of this Convention to the Land of Berlin by notice addressed to the Secretary-General of the Council of Europe, who shall notify the other Parties of such declaration.

4. By direct arrangement between two or more Contracting Parties, the application of this Convention may be extended, subject to the conditions laid down in the arrangement, to any territory of such Parties, other than the territories mentioned in paragraphs 1, 2 and 3 of this Article, for whose international relations any such Party is responsible.

Article 28

RELATIONS BETWEEN THIS CONVENTION AND BILATERAL AGREEMENTS.

1. This Convention shall, in respect of those countries to which it applies, supersede the provisions of any bilateral treaties, conventions or agreements governing extradition between any two Contracting Parties.

2. The Contracting Parties may conclude between themselves bilateral or multilateral agreements only in order to supplement the provisions of this Convention or to facilitate the application of the principles contained therein.

3. Where, as between two or more Contracting Parties, extradition takes place on the basis of a uniform law, the Parties shall be free to regulate their mutual relations in respect of extradition exclusively in accordance with such a system notwithstanding the provisions of this Convention. The same principle shall apply as between two or more Contracting Parties each of which has in force a law providing for the execution in its territory of warrants of arrest issued in the territory of the other Party or Parties. Contracting Parties which exclude or may in the future exclude the application of this Convention as between themselves in accordance with this paragraph shall notify the Secretary-General of the Council of Europe accordingly. The Secretary-General shall inform, the other Contracting Parties of any notification received in accordance with this paragraph.

Article 29

SIGNATURE, RATIFICATION AND ENTRY INTO FORCE.

1. This Convention shall be open to signature by the Members of the Council of Europe. It shall be ratified. The instruments of ratification shall be deposited with the Secretary-General of the Council.

2. The Convention shall come into force 90 days after the date of deposit of the third instrument of ratification.

3. As regards any signatory ratifying subsequently the Convention shall come into force 90 days after the date of the deposit of its instrument of ratification.

Article 30

ACCESSION.

1. The Committee of Ministers of the Council of Europe may invite any State not a member of the Council to accede to this Convention, provided that the resolution containing such invitation receives the unanimous agreement of the Members of the Council who have ratified the Convention.

2. Accession shall be by deposit with the Secretary-General of the Council of an instrument of accession, which shall take effect 90 days after the date of its deposit.

Article 31

DENUNCIATION.

Any Contracting Party may denounce this Convention in so far as it is concerned by giving notice to the Secretary-General of the Council of Europe. Denunciation shall take effect six months after the date when the Secretary-General of the Council received such notification.

Article 32

NOTIFICATIONS.

The Secretary-General of the Council of Europe shall notify the Members of the Council and the Government of any State which has acceded to this Convention of :

( a ) the deposit of any instrument of ratification or accession;

( b ) the date of entry into force of this Convention;

( c ) any declaration made in accordance with the provision of Article 6, paragraph 1, and of Article 21, paragraph 5;

( d ) any reservation made in accordance with Article 26, paragraph 1;

( e ) the withdrawal of any reservation in accordance with Article 26, paragraph 2,

( f ) any notification of denunciation received in accordance with the provisions of Article 31 and by the date on which such denunciation will take effect.

In witness whereof the undersigned, being duly authorised thereto have signed this Convention.

Done at Paris, this 13th day of December, 1957, in English and French, both texts being equally authentic, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary-General of the Council of Europe shall transmit certified copies to the signatory Governments.

(Here follow signatures)

PART II.

DECLARATIONS AND RESERVATIONS OF THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY.

Article 6

Extradition of Germans from the Federal Republic of Germany to a foreign country is not permitted by virtue of Article 16, paragraph 2, first sentence, of the Basic Law for the Federal Republic of Germany and must, therefore, be refused in every case.

The term "nationals" within the meaning of Article 6, paragraph 1 (b), of the European Convention on Extradition covers all Germans within the meaning of Article 116, paragraph 1, of the Basic Law for the Federal Republic of Germany.

Article 21

In a case of transit under Article 21 of the European Convention on Extradition Article 11 of the Convention will be applied mutatis mutandis.

Article 21, paragraph 2

Transit of a German through the territory of the Federal Republic of Germany is not permitted by virtue of Article 16, paragraph 2, first sentence, of the Basic Law for the Federal Republic of Germany and must, therefore, be refused in every case.

Article 21, paragraph 4 (a)

Where transit is to be effected by air through the territory of the Federal Republic of Germany without any intention to land, an assurance will be required to the effect that, according to the facts known to the requesting Party and the documents in its possession, the extradited person is not a German and does not claim such status.

Article 23

Where the request for extradition and the documents to be produced are not in the German language they must be accompanied by translations of the request and the documents into the German language or into one of the official languages of the Council of Europe.

Article 27, paragraph 3

The European Convention on Extradition shall also apply to Land Berlin with effect from the date on which it will enter into force for the Federal Republic of Germany; however, a request for the extradition of a national of the French Republic, of the United Kingdom of Great Britain and Northern Ireland, or of the United States of America from Land Berlin may be complied with only after the Berlin Commandant of the armed forces of the State concerned has agreed.

GIVEN under the Official Seal of the Government, this 22nd day of

December, 1976.

LIAM MAC COSGAIR.

EXPLANATORY NOTE.

This order applies Part II of the Extradition Act 1965 to the Federal Republic of Germany, enabling the extradition of persons between the Federal Republic of Germany and Ireland in the terms of the European Convention on Extradition.