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EXTRADITION (UNITED MEXICAN STATES) REGULATIONS 1991 No. 36- SCHEDULE
SCHEDULE Regulation 5
TREATY ON EXTRADITION BETWEEN AUSTRALIA AND
THE UNITED
MEXICAN STATES
AUSTRALIA AND THE UNITED MEXICAN STATES,
Aware of the close
ties existing between both peoples and desiring to promote greater
co-operation between the two countries in all areas of common interest,
including the suppression of crime, by concluding a treaty on extradition,
HAVE AGREED as follows:
Obligation to Extradite
ARTICLE 1
The Parties agree
to extradite to each other, in accordance with the provisions of this Treaty,
persons against whom criminal proceedings have been initiated or who are
wanted for the imposition or enforcement of a judicial sentence involving
deprivation of liberty for an extraditable offence.
Extraditable Offences
ARTICLE 2
1. For the purposes of this Treaty, extraditable offences are those
offences, however named, which are punishable under the laws of both Parties
by a penalty no less severe than deprivation of liberty for a maximum period
of at least one year.
2. When the request for extradition relates to a person
convicted of such an offence, who is wanted for the enforcement of a sentence
of deprivation of liberty, extradition shall be granted only if a period of at
least six months of such penalty remains to be served.
3. For the purposes of
this Article, in determining whether conduct is an offence against the laws of
both Parties and the constituent elements of the offence differ, the totality
of the acts or omissions alleged against the person whose extradition is
sought shall be taken into account.
4. When the offence has been committed
outside the territory of the Requesting State extradition shall be granted
when the law of the Requested Party provides for the punishment of an offence
committed outside its territory in similar circumstances. When the law of the
Requested Party does not so provide the Requested Party may, in its
discretion, grant extradition.
5. Extradition may be granted pursuant to the
provisions of this Treaty irrespective of when the offence in relation to
which extradition is sought was committed, provided that it was an offence
under the laws of both Parties at the time of the acts or omissions
constituting the offence and at the time of the making of the request for
extradition.
ARTICLE 3
Offences which are made extraditable by multilateral
conventions to which both States are parties shall also be extraditable
offences for the purposes of this Treaty.
ARTICLE 4
Extradition shall be
granted for offences against laws relating to taxation, customs duties,
foreign exchange control or other revenue matters where the acts or omissions
constitute an extraditable offence against the laws of both Parties.
Exceptions to Extradition
ARTICLE 5
1. Extradition shall not be granted for
offences regarded as political offences by the Requested Party or connected
with offences of that nature. For the purposes of this Treaty the murder or
other offence against the life, physical integrity or liberty of a
Head of
State or of Government, or a member of that person's family, shall not be
considered a political offence.
2. Extradition shall also not be granted if
the Requested Party has substantial grounds for believing that the request for
extradition has been made with the aim of prosecuting or punishing a person on
account of that person's race, religion, nationality or political opinions, or
that the person's situation may be prejudiced for any of those reasons.
ARTICLE 6
Extradition shall not be granted for an offence which is a military
offence only and not an offence under the ordinary criminal law of both
Parties.
ARTICLE 7
Extradition shall not be granted if final judgment has
been passed or the person has been pardoned or granted an amnesty in the
Requested State or has served the sentence for the acts or omissions
constituting the offence for which extradition is requested.
ARTICLE 8
Extradition shall not be granted when criminal proceedings can no longer be
instituted by reason of lapse of time or any other cause in accordance with
the law of either Party.
ARTICLE 9
Extradition shall not be granted if the
person sought is liable to be tried by an extraordinary or special tribunal in
the territory of the Requesting State, nor for the enforcement of a sentence
imposed by such a tribunal.
ARTICLE 10
1. Both Parties may refuse
extradition of their nationals. The nationality of a person shall be
determined at the time of decision on the extradition request.
2. If a Party
refuses to extradite a national it shall, at the request of the Requesting
Party and to the extent permitted by its law, submit the case to the competent
authorities in order that proceedings for prosecution may be initiated in
accordance with the laws of that Party. In such cases the documents, reports
and objects relating to the offence shall be sent free of charge in the manner
provided for in Article 16 and the Requesting Party shall be informed of the
decision taken.
ARTICLE 11
The Requested Party may refuse extradition when,
in accordance with its own laws, its courts are competent to try the offence
for which extradition has been requested.
ARTICLE 12
If the person sought
has been convicted in that person's absence, extradition shall not be granted
unless the Requesting Party gives assurances that the person's defence will be
heard and that all rights and opportunities prescribed by its law will be made
available to the person.
ARTICLE 13
If, according to the laws of the
Requesting Party, the offence for which extradition is requested or any other
offence for which the person could be detained or tried in accordance with
this Treaty is punishable by death, extradition shall only be granted if the
Requesting Party gives such assurances as the Requested Party considers
sufficient that the death penalty will not be carried out.
ARTICLE 14
Extradition may also be refused:
(a) if the offence for which extradition is sought is an offence which
carries a punishment of the kind referred to in Article 7 of the
International Covenant on Civil and Political Rights; or
(b) if, in exceptional cases, the Requested Party, while also taking into
account the nature of the offence and the interests of the Requesting
Party, deems that, because of the personal circumstances of the person
sought, the extradition would be totally incompatible with
humanitarian considerations.
Authentication of Requests
ARTICLE 15
1. The request for extradition shall be made in writing through the
diplomatic channel.
2. All documents submitted in support of a
request for extradition shall be authenticated, in accordance with the
following provisions:
(a) in the case of a request made by the United Mexican States, a document
is authenticated for the purposes of this Treaty if:
(i) it purports to be signed or certified by a judicial authority
of the United Mexican States, and
(ii) it purports to be sealed with an official seal of the United
Mexican States.
(b) in the case of a request made by Australia, a document is
authenticated for the purposes of this Treaty if:
(i) the document is certified by a competent judicial authority of
Australia, and
(ii) the document is legalized by the Australian Department of
Foreign Affairs and Trade and by the Mexican diplomatic or
consular representative duly accredited to Australia.
Documentary Requirements
ARTICLE 16
1. The following
documents, accompanied by a translation into the language of
the Requested State, shall be sent with the extradition
request:
(a) a statement of the acts or omissions for which the extradition is
requested, indicating as precisely as possible the time and place of
their commission and their legal description;
(b) the original or authenticated copy of the warrant of arrest, warrant
of commitment, conviction or sentence, if imposed, or any other
judicial order made under the laws of the Requesting Party which
authorizes the arrest of the person and from which the existence of
the offence and its commission by the person sought may be reasonably
inferred;
(c) a statement of the basis of the laws relating to the offence or
offences which are the subject of the request and a statement of the
punishment that may be imposed and the provisions relating to the
period of limitation or prescription;
(d) the details which enable the identity and nationality of the person
sought to be established and, whenever possible, information which may
help establish the person's location; and
(e) when a person has been convicted, a statement that it is intended to
impose a sentence or, when a sentence has been imposed, the length of
that sentence, the fact that it is immediately enforceable and, if
applicable, the period remaining to be served.
2. To the extent
permitted by the law of the Requested Party, extradition of a person
may be granted pursuant to the provisions of this Treaty,
notwithstanding that the requirements of this Article have not been
complied with, provided that the person sought consents to an order
for his extradition being made.
Additional Information
ARTICLE 17
If the details or documents sent with the request for extradition are
insufficient or defective, the Requested Party shall inform the
Requesting Party of the omissions or defects which may be corrected,
before the request will be submitted to the judicial authority.
Rule
of Speciality
ARTICLE 18
A person extradited under this Treaty shall
not be detained, tried or punished in the territory of the Requesting
State for an offence other than that for which extradition has been
granted nor be extradited by the Requesting Party to a third State,
for any offence committed prior to the extradition, unless:
(a) the person has left the territory of the Requesting State after
extradition and has voluntarily returned to it;
(b) the person has not left the territory of the Requesting State within
60 days after being free to do so; or
(c) the Requested Party has given its consent to such detention, trial,
punishment or to extradition to a third State. The request for the
consent of the Requested Party under this Article shall be accompanied
by the documents mentioned in Article 16.
2. These provisions shall
not apply to offences committed after the extradition.
Provisional
Arrest
ARTICLE 19
1. In case of urgency, the Requesting Party may
apply through the diplomatic channel for the provisional arrest of a
person sought. Such an application shall contain a description of the
person sought, a statement that extradition is to be requested through
the diplomatic channel, a statement of the existence of one of the
documents mentioned in paragraph (b) of Article 16 authorising the
arrest of the person, a statement of the offence alleged and of the
punishment that can be, or has been, imposed for the offence and a
summary of the acts or omissions alleged to constitute the offence.
2. An application for provisional arrest may be made by any written
means.
3. On receipt of the application referred to in paragraph 1,
the Requested Party shall take the necessary steps to secure the
arrest of the person sought. The Requesting Party shall be informed of
the outcome of its application.
4. The person provisionally arrested
may be discharged if on the expiration of 60 days the Requested Party
has not received the request for extradition and the documents
mentioned in Article 16 or documents requested pursuant to Article 17.
5. The discharge of a person shall not preclude the institution of
extradition proceedings if the request and the documents mentioned in
Article 16 are subsequently received.
Concurrent Requests
ARTICLE 20
If concurrent requests for extradition are received from one of the
Parties and other States, either for the same offence or different
offences, the Requested Party shall determine to which of those States
extradition shall be granted, having regard to the circumstances,
including other treaties under which the Requested Party has
obligations, the relative seriousness of the offences, the place of
commission of the offences, the dates of the respective requests, the
nationality and ordinary place of residence of the person sought and
the possibility of later extradition.
Surrender
ARTICLE 21
1. The
Requested Party shall communicate its decision on the request for
extradition to the Requesting Party through the diplomatic channel.
2. If extradition is refused, either totally or partially, reasons
shall be given.
3. If extradition is granted, the Parties shall
mutually decide on arrangements for the surrender of the person
sought. The Requesting Party shall remove the person whose extradition
has been granted within 60 days from the date on which that Party
receives advice from the Requested Party that the person is available
for surrender.
4. If the person sought has not been removed from the
Requested State within the period specified, that person shall be
released.
Postponement of Surrender
ARTICLE 22
1. The Requested
Party may, after having made its decision on the request for
extradition, postpone the surrender of the person in order to
prosecute that person for an offence other than that for which it has
granted extradition or, if sentence has already been passed for such
an offence, so that the person may serve that sentence in its
territory.
2. With the written consent of the person sought, the
Requested Party may defer surrender when, for reasons of the health of
the person, surrender may endanger that person's life or aggravate his
or her condition.
Surrender of Property
ARTICLE 23
1. At the
request of the Requesting Party, the Requested Party shall secure and
deliver, to the extent its laws permit and without prejudice to the
rights of third parties, property:
(a) that may serve as evidence; or
(b) which has been obtained as a result of the offence and has been found
in the possession of the person sought at the time of that person's
arrest, or which has been subsequently found.
2. The property
mentioned in paragraph 1 shall, if the Requesting Party so requests,
be surrendered even though the extradition cannot be carried out owing
to the death, disappearance or escape of the person sought.
3. The
Requested Party may temporarily retain any property mentioned in
paragraph 1 if it is the subject of, or required for, proceedings in
that State, or it may temporarily surrender it on condition that it be
returned free of charge.
4. When the Requested Party or third parties
have rights over the property surrendered to the Requesting Party in
accordance with the provisions of this Article, such property shall be
returned to the Requested Party as soon as possible and free of
charge.
Transit
ARTICLE 24
1. When a person is to be extradited to
a Party from a third State through the territory of the other Party,
the Party to which the person is to be extradited shall request the
other Party to permit the transit of that person through its
territory.
2. A request for permission to transit shall be made
through the diplomatic channel and shall be accompanied by a copy of
the resolution granting the extradition.
3. Upon receipt of such a
request the Requested Party shall grant the request unless there are
reasons of public policy for opposing the request. The Requested Party
may also refuse permission to transit if the person is a national of
that State.
4. The authorities of the transit State shall be
responsible for the custody of the prisoner while that person remains
in its territory.
5. The Requesting Party shall re-imburse the
transit State for any expenses it incurs in connection with the
transit.
Multilateral Obligations
ARTICLE 25
Nothing in this Treaty
shall affect any obligations which have been or shall in the future be
assumed by both Parties under any multilateral convention.
Applicable
Laws
ARTICLE 26
The laws of the respective Parties shall be applied
to the extent that the provisions of this Treaty do not govern the
extradition proceedings.
Expenses
ARTICLE 27
The expenses incurred
in relation to an extradition in the territory of the Requested Party
shall be borne by that Party, except those relating to transport of
the person sought which shall be borne by the Requesting Party.
Entry
into Force and Termination
ARTICLE 28
1. This Treaty shall come into
force on the date on which the Parties have notified each other in
writing through the diplomatic channel that their respective domestic
requirements for the entry into force have been complied with.
2.
Either Party may terminate this Treaty by notice in writing through
the diplomatic channel 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.
3. On the entry into force of this Treaty the provisions of
the Treaty for the Mutual Surrender of Fugitive Criminals between
Great Britain and Mexico done at Mexico City on 7 September 1886 shall
cease to have effect between Australia and Mexico.
4. Requests for
extradition made after this Treaty has entered into force shall be
governed by its provisions whatever the date of the commission of the
offence.
5. Requests for extradition made before this Treaty has
entered into force shall continue to be governed by the Treaty
referred to in paragraph 3 of this Article.
IN WITNESS WHEREOF the
undersigned, being duly authorized thereto by their respective
Governments, have signed this Treaty.
DONE in two originals at
CANBERRA on the twenty-second day of June One Thousand, Nine Hundred
and Ninety in English and Spanish each text being equally authentic.
FOR FOR THE
AUSTRALIA UNITED MEXICAN
STATES
GARETH EVANS FERNANDO SOLANA
____________________________________________________________
1. Notified in
the Commonwealth of Australia Gazette on 26 March 1991.