EXTRADITION (REPUBLIC OF ITALY) REGULATIONS - SCHEDULE Treaty
of extradition between Australia and the Republic
of Italy
(regulation 4)
TREATY OF EXTRADITION
BETWEEN AUSTRALIA AND THE
REPUBLIC OF ITALY
Australia and the Republic of Italy, DESIRING to make more
effective the co-operation of the two countries in the repression of crime,
HAVE AGREED as follows:
ARTICLE 1
OBLIGATION TO EXTRADITE
Each Contracting Party agrees to extradite to the other, in accordance with
the provisions of this Treaty, any persons who are wanted by the requesting
Party for prosecution or the imposition or enforcement of a sentence for an
extraditable offence.
ARTICLE 2
EXTRADITABLE OFFENCES
1. Extraditable
offences are offences which, at the time of the request for extradition, are
punishable under the laws of both Contracting Parties by imprisonment or other
deprivation of liberty for a period of at least one year
or by a more severe penalty. Where the request for extradition relates to a
person convicted of such an offence who is wanted for the enforcement of a
sentence of imprisonment or other deprivation of liberty, extradition shall be
granted only if a period of at least six months of such penalty remains to be
served. 2. An offence shall also be an extraditable offence if it consists of
an attempt to commit, or participation in the commission of, an offence
described in paragraph 1 of this Article. Any type of association to commit
offences described in paragraph 1 of this Article, as provided by the law of
Italy, and conspiracy to commit an offence described in paragraph 1 of this
Article, as provided by the law of Australia, shall also be extraditable
offences. 3. It shall not matter whether the laws of the Contracting Parties
place theacts or omissions constituting the offence within a different
category of offence or denominate the offence by different terminology. 4. In
determining whether an offence is an offence against the laws of both
Contracting Parties, the totality of the acts or omissions alleged against the
person sought shall be taken into account.
ARTICLE 3
PLACE OF COMMISSION OF
OFFENCE
When an offence has been committed outside the territory of the requesting
Party, the requested Party may grant extradition if its law provides for the
punishment of such an offence or if the person sought is a national of the
requesting Party.
ARTICLE 4
REFUSAL OF EXTRADITION
Extradition shall not be granted if:
(a) the offence for which extradition is requested is regarded by the
requested Party as a political offence; or
(b) 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
that person's race, religion, nationality or political opinions or
that that person's position may be prejudiced for any of those
reasons; or
(c) the offence for which extradition is requested is an offence under
military law, which is not an offence under the ordinary criminal law;
or
(d) final judgement has been passed in the requested Party or in a third
State in respect of the offence for which the person's surrender is
sought; or
(e) the person whose surrender is sought has, according to the law of
either the requesting Party or the requested Party, become immune from
prosecution or punishment by reason of lapse of time.
ARTICLE 5
DISCRETIONARY REFUSAL
1. Extradition may be refused if:
(a) the person sought is a national of the requested Party. Where the
requested Party refuses to extradite one of its nationals it shall, if
the other Party so requests and the law of the requested Party allows,
submit the case to the competent authorities in order that proceedings
for the prosecution of the person in respect of all or any of the
offences for which extradition has been sought may be taken; or
(b) the competent authorities of the requested Party have decided to
refrain from prosecuting the person sought for the offence in respect
of which extradition is requested and in respect of which the
requested Party has jurisdiction; or
(c) a prosecution in respect of the offence for which extradition is
requested is pending in the territory of the requested Party against
the person whose extradition is sought; or
(d) the offence for which extradition is requested is regarded under the
law of the requested Party as having been committed in whole or in
part within its territory.
ARTICLE 6
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 by it, extradition may be refused unless the requesting
Party gives such assurances as the requested Party considers sufficient that
the penalty will not be carried out.
ARTICLE 7
WITHDRAWAL OF REQUEST
The requested Party may recommend to the requesting Party that a request for
extradition be withdrawn, specifying the reasons therefore, where it
considers, taking into account the age, health or other personal circumstances
of the person sought, that extradition should not be requested.
ARTICLE 8
POSTPONEMENT OF SURRENDER
1. The requested Party may postpone surrender of a
person in order to proceed against him, or so that he may serve a sentence,
for an offence other than an offence constituted by an act or omission for
which his extradition is requested and where the requested Party so postpones
the surrender, it shall advise the requesting Party accordingly.
2. The requested Party may, in accordance with its law, temporarily surrender
the person sought to the requesting Party on conditions to be determined by
mutual agreement between the Parties. 3. The provisions of this Article do
not derogate from the obligation of the requested Party to deal with requests
under this Treaty expeditiously.
ARTICLE 9
CONSENT EXTRADITION
If a person sought consents, in accordance with the law of the requested
Party, to an order for his surrender being made, that person may be
surrendered accordingly.
ARTICLE 10
EXTRADITION PROCEDURE AND REQUIRED
DOCUMENTS
1. The request for extradition shall be made in writing and shall
be communicated through the diplomatic channel. 2. The request for
extradition shall be accompanied:
(a) by the text of the relevant provisions of the law creating the
offence, the provisions of the law relating to time limitation and to
the punishment that can be imposed for the offence;
(b) by information or documentation establishing that the person whose
surrender is sought is the person accused of or convicted of the
extraditable offence;
(c) if the person is accused or has been convicted in his absence of an
offence, by a warrant for the arrest or a copy of the warrant for
arrest of the person, a statement of each offence for which
extradition is sought and a statement of the acts or omissions which
are alleged against the fugitive in respect of each offence;
(d) if the person has been convicted of an offence otherwise than in his
absence, by such documents as provide evidence of the conviction and
the sentence imposed, the fact that the sentence is immediately
enforceable, and the extent to which the sentence has not been carried
out; and
(e) if the person has been convicted of an offence otherwise than in his
absence but no sentence has been imposed, by such documents as provide
evidence of the conviction and a statement affirming that it is
intended to impose a sentence. 3. Any conviction referred to in
paragraph 2 means final conviction after ordinary appeal rights have
been exhausted. 4. The documents submitted in support of a request
for extradition shall be accompanied by a translation in the language
of the requested Party.
ARTICLE 11
AUTHENTICATION
1. All documents
submitted in support of a request for extradition shall be duly
authenticated. A document that, in accordance with Article 10,
accompanies a request for extradition shall be admitted in evidence,
if duly authenticated, in any extradition proceedings in the territory
of the requested Party. 2. A document is duly authenticated for the
purposes of this Treaty if:
(a) it purports to be signed or certified by a judge, magistrate or
officer in or of the requesting Party; and
(b) it purports to be authenticated by the oath or affirmation of a
witness or to be sealed with an official or public seal of the
requesting Party or of a department or officer of the Government of
the requesting Party.
ARTICLE 12
ADDITIONAL INFORMATION
1. If the
requested Party considers that the documentation furnished in support
of a request is not sufficient in accordance with this Treaty to
enable the extradition to be granted, that Party may request that
additional information be furnished within such time as it specifies.
2. If the person whose extradition is requested is under arrest and
the additional information furnished is not sufficient in accordance
with this Treaty or is not received within the time specified, the
person may be released from custody. Such release shall not preclude
the requesting Party from making a fresh request for the extradition
of the person. 3. Where the person is released from custody in
accordance with paragraph 2, the requested Party shall notify the
requesting Party as soon as practicable.
ARTICLE 13
PROVISIONAL
ARREST
1. In case of urgency, a Contracting Party may apply for the
provisional arrest of a person sought. The application for provisional
arrest shall be made through the diplomatic channel or between the
Department of Justice of Italy and the Attorney-General's Department
of Australia, in which case the facilities of the International
Criminal Police Organisation (INTERPOL) may be used. The application
may be transmitted by post or telegraph or by any other means
affording a record in writing. 2. The application shall contain a
description of the person sought, a statement that extradition is to
be requested, a statement of the existence and terms of a warrant of
arrest or a judgement of conviction against the person, a statement of
the punishment that can be imposed or has been imposed for the offence
and, if requested by the requested Party, a concise statement of theacts or omissions alleged to constitute the offence. 3. On receipt of
such an application the requested Party shall take the
necessary steps, in accordance with its law, to secure the arrest of the
person sought and the requesting Party shall be promptly notified of the
result of its request. 4. A person arrested upon such an application shall be
set at liberty upon the expiration of forty-five days from the date of his
arrest if a request for his extradition, supported by the documents specified
in Article 10, has not been received. 5. The release of a person pursuant to
paragraph 4 of this Article shall not prevent the re-arrest and the
institution of proceedings with a view to extraditing the person sought if the
request is subsequently received.
ARTICLE 14
CONFLICTING REQUESTS
1. Where
requests are received from two or more States for the extradition of the same
person, the requested Party shall determine to which of those States the
person is to be extradited and shall notify the requesting Party of its
decision. 2. In determining to which State a person is to be extradited, the
requested Party shall have regard to all relevant circumstances and, in
particular, to:
(a) if the requests relate to different offences, the relative seriousness
of the offences;
(b) the time and place of commission of each offence;
(c) the respective dates of the requests;
(d) the nationality and ordinary place of residence of the person; and
(e) the possibility of subsequent extradition to another State.
ARTICLE
15
SURRENDER
1. The requested Party shall, as soon as a decision on
the request for extradition has been made, communicate that decision
to the requesting Party through the diplomatic channel. Reasons shall
be given for any complete or partial rejection. 2. Where extradition
is granted the requested Party shall surrender the person from a point
of departure in its territory convenient to the requesting Party. 3.
The requesting Party shall take the person from the territory of the
requested Party within such reasonable period as the requested Party
specifies and, if the person is not taken from the said territory
within that period, the requested Party may refuse to extradite him
for the same offence. 4. If circumstances beyond its control prevent
a Party from complying with the date of surrender, it shall notify the
other Party. The Contracting Parties shall agree upon a new date of
surrender, and the provisions of paragraph 3 of this Article shall
apply.
ARTICLE 16
SURRENDER OF PROPERTY
1. To the extent permitted
under the law of the requested Party and subject to the rights of
third persons, which shall be duly respected, all property found in
the territory of the requested Party that has been acquired as a
result of the offence or may be required as evidence shall, if the
requesting Party so requests, be surrendered if extradition is
granted. 2. The abovementioned property shall, if the requesting
Party so requests, be surrendered to the requesting Party even if the
extradition, having been consented to, cannot be carried out owing to
the death or escape of the person sought. 3. If the property in
question is liable to seizure or confiscation in the territory of the
requested Party, the requested Party may, in connection with pending
proceedings, temporarily retain it or hand it over on condition that
it is returned without charge. 4. Where the rights of the requested
Party or of third persons so require, any property surrendered under
this Article shall be returned to the requested Party free of charge,
if that Party so requests.
ARTICLE 17
RULE OF SPECIALITY
1. A
person extradited under this Treaty shall not be proceeded against,
sentenced or detained with a view to the carrying out of a sentence,
or be otherwise restricted in his personal freedom, in the territory
of the requesting Party for any offence committed before his
surrender, other than the offence for which his extradition was
granted, except:
(a) where the requested Party consents in accordance with its law; or
(b) where the person extradited, having had an opportunity to leave the
territory of the requesting Party, has not done so within 45 days
of his final discharge in respect of the offence for which he was
surrendered, or has returned to the requesting Party after leaving it.
2. If the description of the offence charged in the territory of the
requesting Party is altered in the course of proceedings, the person
extradited 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. 3. A request
for consent under this Article shall be accompanied by the relevant
documents mentioned in Article 10, as well as by a record of any
statement made by the extradited person in respect of the offence
concerned.
ARTICLE 18
RE-EXTRADITION TO A THIRD STATE
1. Except in the circumstances
referred to in Article 17, paragraph 1 (b), a person extradited under
this Treaty shall not be surrendered to any third State for an offence
committed before his surrender unless the requested Party consents to that
surrender. 2. Before acceding to a request pursuant to paragraph 1 of this
Article, the requested Party may request the production of the documents
mentioned in Article 10.
ARTICLE 19
TRANSIT
1. Where a person is to be
extradited to a Contracting Party from a third State through the territory of
the other Contracting Party, the Contracting Party to which the person is to
be extradited shall request the other Contracting Party to permit the transit
of that person through its territory. 2. Upon receipt of such a request the
requested Party shall grant the request unless it is satisfied that there are
reasonable grounds for refusing to do so. 3. Permission for the transit of a
person shall, subject to the law of the requested Party, include the custody
of the person during transit. 4. Where a person is being held in custody
pursuant to paragraph 3, the Contracting Party in whose territory the person
is being held may direct that the person be released if his transportation is
not continued within a reasonable time. 5. The Contracting Party to which the
person is being extradited shall reimburse the other Contracting Party for any
expense incurred by that Contracting Party in connection with the transit.
ARTICLE 20
EXPENSES
1. The requesting Party shall not be liable for the
costs of any proceedings in the territory of the requested Party arising out
of a request for extradition. 2. The requested Party shall bear the expenses
incurred in its territory in the arrest of the person whose extradition is
requested, and in the maintenance in custody of the person until he is
surrendered. 3. The requesting Party shall bear the expenses incurred in
conveying the person from the territory of the requested Party.
ARTICLE 21
MUTUAL ASSISTANCE IN CRIMINAL MATTERS
Subject to any further treaty between
them, the Contracting Parties agree to afford each other, in accordance with
their national laws, mutual assistance in criminal matters, to the maximum
extent possible, for the purposes of the investigation or prosecution of any
offence under their jurisdiction.
ARTICLE 22
ENTRY INTO FORCE AND
TERMINATION
1. This Treaty shall enter into force thirty days after the
Contracting Parties have notified each other that the constitutional
requirements for the entry into force of this Treaty have been complied with.
This Treaty shall also apply to requests related to offences committed prior
to its entry into force. 2. The Treaty of Extradition between Australia and
the Republic of Italy done at Canberra on the twenty-eighth day of November,
One thousand nine hundred and seventy-three, shall cease to have effect on the
entry into force of this Treaty. 3. Either Contracting Party may terminate
this Treaty by notice in writing at any time and it shall cease to be in force
on the one hundred and eightieth day after the day on which notice is given.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto, have signed
this Treaty. DONE at MILAN on the 26th day of August One thousand, nine
hundred and eighty five in English and Italian languages, both texts being
equally authentic.
Commonwealth Consolidated Regulations