S.I. No. 275/2019 - Extradition (United Nations Convention Against Corruption) Order 2019

1. The Secretary-General of the United Nations is designated depositary of this Convention.

2. Pursuant to Article 44, paragraph 6 of the above mentioned Convention, the Government of the Republic of Singapore declares that it does not take the above mentioned convention as the legal basis for cooperation on extradition with other States Parties.

[…]”

South Africa

“[…]

in terms of Article 44 (6) of the Convention it is approved that South Africa uses the Convention as the legal basis for co-operation on extradition with other States Parties to the Convention.

[…]”

Ukraine

2 December 2009

“(1) To paragraph 6 (a) of Article 44

Ukraine declares that it will consider this Convention to be the legal basis for co-operation on extradition in relations with the States Parties to this Convention in the absence of a treaty on extradition between them;

[…]”

United States of America

“Declarations

[…]

(2) The United States declares that the provisions of the Convention (with the exception of Articles 44 and 46) are non-self-executing. None of the provisions of the Convention creates a private right of action.”

“[…]

Pursuant to Article 44, paragraph 6, of the Convention, ... the United States will not apply Article 44, paragraph 5.

[…]”

Uruguay

12 April 2007

“[…]

- Article 44, paragraph 6: While Uruguay does not necessarily make extradition conditional on the existence of a treaty, it has incorporated the United Nations Convention against Corruption into its domestic legal order and will therefore take the Convention as the legal basis for cooperation on extradition with other States parties;

[…]”

Uzbekistan

1 August 2008

“[…]

to paragraph 6 of Article 44 of the Convention: In accordance with subparagraph “ä” of paragraph 6 of the article 44 the Republic of Uzbekistan notifies that it shall use this Convention as a legal basis for cooperation on extradition of persons, who committed corruption crimes, with other State Parties of this Convention on a foundation of reciprocity…

[…]”

Venezuela (Bolivarian Republic of)

“The Bolivarian Republic of Venezuela also declares that

Concerning the provisions of article 44, paragraph 11, the extradition of nationals is expressly prohibited under Venezuelan law. In that regard, Venezuela undertakes, at the request of the State party seeking extradition, to submit the case without undue delay to its competent authorities for the purpose of prosecution.”

Viet Nam

“In accordance with Article 44 of the Convention thereof, the Socialist Republic of Vietnam declares that it shall not take the Convention as the legal basis for extraditions. The Socialist Republic of Vietnam shall conduct extradition in accordance with the Vietnamese law, on the basis of treaties on extradition and the principle of reciprocity.”

Yemen

“.....subject to our reservation concerning article 44 and article 66, paragraph 2, of the Convention.”

GIVEN under my Official Seal,

19 June, 2019.

SIMON COVENEY,

Minister For Foreign Affairs and Trade.

EXPLANATORY NOTE

(

This note is not part of the Instrument and does not purport to be a legal interpretation

.)

The effect of this Order is to apply the provisions of Part II of the

Extradition Act 1965

to the countries listed in Part A of Schedule 3 to the Order in respect of offences under the 2003 United Nations Convention against Corruption. The Convention was ratified by the State on 9 November 2011. The countries listed in Part A of Schedule 3 are those states parties to the Convention other than Member States of the European Union because extradition to and from those Member States is regulated by the European Arrest Warrant system. Part B of Schedule 3 lists the reservations and declarations, or parts thereof, made by certain states parties which relate to extradition under the Convention.

3. With Regard to Macao Special Administrative Region, the Office of the Secretary for Administration and Justice of Macao Special Administrative Region is designated as the competent authority for cooperation on surrender of fugitive offenders for the purpose of Article 44 of the Convention.

Address: Sede do Governo da RAEM, Avenida da Praia Grande, Macao.”

5 September 2014

“As a State Party to the Convention, the People’s Republic of China confirms that the Convention is the legal basis for cooperation on extradition (surrender of accused and convicted persons) between the People’s Republic of China (including Hong Kong Special Administrative Region and Macao Special Administrative Region) and other States Parties to the Convention.”

Cook Islands

“[…]

Article 44 (6) (a)

For the purposes of the legal basis for cooperation on extradition with other States Parties to the Convention, the Cook Islands will rely on the provisions of its Extradition Act 2003 as the legal basis for cooperation and extraction of any matters under article 44 (6) (a). The Act is administered by the Ministry of Police.

[…]

Costa Rica

5 July 2007

“[…]

Similarly, the Republic of Costa Rica wishes to inform ... that the United Nations Convention against Corruption will be taken as the legal basis for cooperation on extradition, in accordance with article 44 (6) of the Convention.

[…]”

Côte d’Ivoire

“In accordance with article 44 (6)

The United Nations Convention against Corruption, adopted on 31 October 2003 in New York, is considered by the Government of the Republic of Côte d’Ivoire as the legal basis for cooperation on extradition with other Parties to the Convention in addition to the treaties, conventions and existing bilateral and multilateral agreements.”

Cuba

“The Republic of Cuba declares that, pursuant to article 44, paragraph 6, of the Convention, it does not take this Convention as the legal basis for cooperation on extradition with other States parties.”

El Salvador

“(a) With respect to the provisions of article 44, the Republic of El Salvador does not regard the above-mentioned Convention as the legal basis for cooperation in connection with extradition;

[…]”

Ethiopia

“… ratification by Ethiopia of the said Convention with a reservation on Article 44 of the Convention.”

Georgia

“According to article 44, paragraph 6, subparagraph ‘a’, Georgia considers the Convention as the legal basis of collaboration on extradition issues with other state parties based on the principle of reciprocity.

[…]”

Guatemala

“(a) Pursuant to article 44, paragraph 6 (a), the Republic of Guatemala regards this Convention as the legal basis for cooperation on extradition;

[…]”

Holy See

“[…]

With regard to articles 43 to 48 of the Convention, the Holy See, acting also in the name and on behalf of Vatican City State, declares that, in light of its legal doctrine and the sources of its law (Vatican City State Law LXXI, 1 October 2008), nothing in the Convention shall be interpreted as imposing an obligation to extradite or to provide mutual legal assistance if there are substantial grounds for believing that the request is made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion; that compliance with the request would cause prejudice to that person’s position for any of these reasons; or that the person would be subject to the death penalty or to torture.

[…]”

Honduras

8 May 2014

“Pursuant to article 44, paragraph 6 (a), of the Convention, the Republic of Honduras declares that it takes this Convention as the legal basis for cooperation on extradition with other States Parties to this Convention. However, under articles 101 and 102 of the Constitution of the Republic of Honduras, the State cannot authorize the extradition of persons accused of political offences or related ordinary offences and the Honduran authorities cannot expel Honduran citizens or hand them over to the authorities of another State.

[…]”

Israel

“Declaration regarding Article 44 (6) of the Convention

Israel’s extradition law requires an extradition agreement in order for extradition to occur. Under Section 2A [c] of Israel’s Extradition Law, an agreement can include a special agreement concluded between the State of Israel and the requesting State concerning the extradition of a wanted person, pursuant to the provisions of the Extradition Law. With respect to States Parties with which the State of Israel presently has an extradition treaty, extradition for the offenses under the Convention shall be undertaken pursuant to the requirements of those treaties. With respect to States Parties with which the State of Israel does not have an extradition treaty, it shall not in every case consider the Convention as the legal basis for extradition cooperation with such States Parties but shall consider each request for extradition for an offence under the Convention with due seriousness in light of the purposes and provisions of this Convention and may elect to extradite in such cases pursuant to a special agreement with the State Party, pursuant to Israeli law and upon a basis of reciprocity.”

Kazakhstan

27 June 2008

“1. In accordance with article 44, paragraph 6 (a) of the Convention, the Republic of Kazakhstan takes the Convention as the legal basis for cooperation on extradition with other States Parties to the Convention.

[…]”

Kenya

14 August 2008

“[…]

In terms of Article 44 (6) (a) of the Convention, the Republic of Kenya declares that it does not consider the Convention as a legal basis for co-operation on extradition with other States Parties since Kenya’s municipal law (especially The Extradition (Contiguous) and Foreign Countries Act (Cap 76) and the Extradition (Commonwealth Countries) Act (Cap 77) requires the existence of a bilateral treaty between Kenya and another state as a condition precedent to extradition proceedings.

[…]”

Kuwait

“In accordance with article 44, paragraph 6 (a), of the United Nations Convention against Corruption,

We hereby declare in the name of the State of Kuwait that by this instrument the Convention is considered as the legal basis for cooperation on extradition with other States Parties to the Convention.

[…]”

Lao People’s Democratic Republic

“The Lao People’s Democratic Republic declares that it makes extradition conditional on the existence of a treaty. Nevertheless, it does not consider the UN Convention Against Corruption as the legal basis for extradition in respect of the offences set forth therein. It further declares that bilateral agreements will be the basis for extradition as between the Lao People’s Democratic Republic and other States Parties in respect of any offences.”

Mali

“The Republic of Mali, pursuant to Article 44 (6), notifies that this Convention will constitute the legal basis for cooperation on extradition with other States Parties to this Convention.”

Mauritius

“The Government of the Republic of Mauritius wishes to inform the Secretary-General of the following notifications pursuant to Articles 6 (3), 44 (6), 46 (13) and 46 (14), of the Convention.

[…]

Article 44 (6)

Mauritius makes extradition conditional on the existence of a treaty. The Extradition Act does not at present allow Mauritius to take the Convention as the legal basis for co-operation on extradition with other States Parties to the Convention.

[…]”

Mongolia

7 August 2008

“[…]

4. An amendment adopted in accordance with paragraph 1 of this article shall enter into force in respect of a State Party ninety days after the date of the deposit with the Secretary-General of the United Nations of an instrument of ratification, acceptance or approval of such amendment.

5. When an amendment enters into force, it shall be binding on those States Parties which have expressed their consent to be bound by it. Other States Parties shall still be bound by the provisions of this Convention and any earlier amendments that they have ratified, accepted or approved.

Article 70

Denunciation

6. Each State Party shall provide the Conference of the States Parties with information on its programmes, plans and practices, as well as on legislative and administrative measures to implement this Convention, as required by the Conference of the States Parties. The Conference of the States Parties shall examine the most effective way of receiving and acting upon information, including, inter alia, information received from States Parties and from competent international organizations. Inputs received from relevant non-governmental organizations duly accredited in accordance with procedures to be decided upon by the Conference of the States Parties may also be considered.

7. Pursuant to paragraphs 4 to 6 of this article, the Conference of the States Parties shall establish, if it deems it necessary, any appropriate mechanism or body to assist in the effective implementation of the Convention.

Article 64

Secretariat

8. Each State Party shall consider making voluntary contributions to the United Nations Office on Drugs and Crime for the purpose of fostering, through the Office, programmes and projects in developing countries with a view to implementing this Convention.

Article 61

Collection, exchange and analysis of information on corruption

9. The provisions of this article shall not be construed as prejudicing the rights of bona fide third parties.

Article 56

Special cooperation

Without prejudice to its domestic law, each State Party shall endeavour to take measures to permit it to forward, without prejudice to its own investigations, prosecutions or judicial proceedings, information on proceeds of offences established in accordance with this Convention to another State Party without prior request, when it considers that the disclosure of such information might assist the receiving State Party in initiating or carrying out investigations, prosecutions or judicial proceedings or might lead to a request by that State Party under this chapter of the Convention.

Article 57

Return and disposal of assets

10. A person who is being detained or is serving a sentence in the territory of one State Party whose presence in another State Party is requested for purposes of identification, testimony or otherwise providing assistance in obtaining evidence for investigations, prosecutions or judicial proceedings in relation to offences covered by this Convention may be transferred if the following conditions are met

(a) The person freely gives his or her informed consent;

(b) The competent authorities of both States Parties agree, subject to such conditions as those States Parties may deem appropriate.

11. For the purposes of paragraph 10 of this article

(a) The State Party to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorized by the State Party from which the person was transferred;

(b) The State Party to which the person is transferred shall without delay implement its obligation to return the person to the custody of the State Party from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both States Parties;

(c) The State Party to which the person is transferred shall not require the State Party from which the person was transferred to initiate extradition proceedings for the return of the person;

(d) The person transferred shall receive credit for service of the sentence being served in the State from which he or she was transferred for time spent in the custody of the State Party to which he or she was transferred.

12. Unless the State Party from which a person is to be transferred in accordance with paragraphs 10 and 11 of this article so agrees, that person, whatever his or her nationality, shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in the territory of the State to which that person is transferred in respect of acts, omissions or convictions prior to his or her departure from the territory of the State from which he or she was transferred.

13. Each State Party shall designate a central authority that shall have the responsibility and power to receive requests for mutual legal assistance and either to execute them or to transmit them to the competent authorities for execution. Where a State Party has a special region or territory with a separate system of mutual legal assistance, it may designate a distinct central authority that shall have the same function for that region or territory. Central authorities shall ensure the speedy and proper execution or transmission of the requests received. Where the central authority transmits the request to a competent authority for execution, it shall encourage the speedy and proper execution of the request by the competent authority. The Secretary-General of the United Nations shall be notified of the central authority designated for this purpose at the time each State Party deposits its instrument of ratification, acceptance or approval of or accession to this Convention. Requests for mutual legal assistance and any communication related thereto shall be transmitted to the central authorities designated by the States Parties. This requirement shall be without prejudice to the right of a State Party to require that such requests and communications be addressed to it through diplomatic channels and, in urgent circumstances, where the States Parties agree, through the International Criminal Police Organization, if possible.

14. Requests shall be made in writing or, where possible, by any means capable of producing a written record, in a language acceptable to the requested State Party, under conditions allowing that State Party to establish authenticity. The Secretary-General of the United Nations shall be notified of the language or languages acceptable to each State Party at the time it deposits its instrument of ratification, acceptance or approval of or accession to this Convention. In urgent circumstances and where agreed by the States Parties, requests may be made orally but shall be confirmed in writing forthwith.

15. A request for mutual legal assistance shall contain

(a) The identity of the authority making the request;

(b) The subject matter and nature of the investigation, prosecution or judicial proceeding to which the request relates and the name and functions of the authority conducting the investigation, prosecution or judicial proceeding;

(c) A summary of the relevant facts, except in relation to requests for the purpose of service of judicial documents;

(d) A description of the assistance sought and details of any particular procedure that the requesting State Party wishes to be followed;

(e) Where possible, the identity, location and nationality of any person concerned; and

(f) The purpose for which the evidence, information or action is sought.

16. The requested State Party may request additional information when it appears necessary for the execution of the request in accordance with its domestic law or when it can facilitate such execution.

17. A request shall be executed in accordance with the domestic law of the requested State Party and, to the extent not contrary to the domestic law of the requested State Party and where possible, in accordance with the procedures specified in the request.

18. Wherever possible and consistent with fundamental principles of domestic law, when an individual is in the territory of a State Party and has to be heard as a witness or expert by the judicial authorities of another State Party, the first State Party may, at the request of the other, permit the hearing to take place by video conference if it is not possible or desirable for the individual in question to appear in person in the territory of the requesting State Party. States Parties may agree that the hearing shall be conducted by a judicial authority of the requesting State Party and attended by a judicial authority of the requested State Party.

19. The requesting State Party shall not transmit or use information or evidence furnished by the requested State Party for investigations, prosecutions or judicial proceedings other than those stated in the request without the prior consent of the requested State Party. Nothing in this paragraph shall prevent the requesting State Party from disclosing in its proceedings information or evidence that is exculpatory to an accused person. In the latter case, the requesting State Party shall notify the requested State Party prior to the disclosure and, if so requested, consult with the requested State Party. If, in an exceptional case, advance notice is not possible, the requesting State Party shall inform the requested State Party of the disclosure without delay.

20. The requesting State Party may require that the requested State Party keep confidential the fact and substance of the request, except to the extent necessary to execute the request. If the requested State Party cannot comply with the requirement of confidentiality, it shall promptly inform the requesting State Party.

21. Mutual legal assistance may be refused

(a) If the request is not made in conformity with the provisions of this article;

(b) If the requested State Party considers that execution of the request is likely to prejudice its sovereignty, security,

ordre public

or other essential interests;

(c) If the authorities of the requested State Party would be prohibited by its domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction;

(d) If it would be contrary to the legal system of the requested State Party relating to mutual legal assistance for the request to be granted.

22. States Parties may not refuse a request for mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters.

23. Reasons shall be given for any refusal of mutual legal assistance.

24. The requested State Party shall execute the request for mutual legal assistance as soon as possible and shall take as full account as possible of any deadlines suggested by the requesting State Party and for which reasons are given, preferably in the request. The requesting State Party may make reasonable requests for information on the status and progress of measures taken by the requested State Party to satisfy its request. The requested State Party shall respond to reasonable requests by the requesting State Party on the status, and progress in its handling, of the request. The requesting State Party shall promptly inform the requested State Party when the assistance sought is no longer required.

25. Mutual legal assistance may be postponed by the requested State Party on the ground that it interferes with an ongoing investigation, prosecution or judicial proceeding.

26. Before refusing a request pursuant to paragraph 21 of this article or postponing its execution pursuant to paragraph 25 of this article, the requested State Party shall consult with the requesting State Party to consider whether assistance may be granted subject to such terms and conditions as it deems necessary. If the requesting State Party accepts assistance subject to those conditions, it shall comply with the conditions.

27. Without prejudice to the application of paragraph 12 of this article, a witness, expert or other person who, at the request of the requesting State Party, consents to give evidence in a proceeding or to assist in an investigation, prosecution or judicial proceeding in the territory of the requesting State Party shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in that territory in respect of acts, omissions or convictions prior to his or her departure from the territory of the requested State Party. Such safe conduct shall cease when the witness, expert or other person having had, for a period of fifteen consecutive days or for any period agreed upon by the States Parties from the date on which he or she has been officially informed that his or her presence is no longer required by the judicial authorities, an opportunity of leaving, has nevertheless remained voluntarily in the territory of the requesting State Party or, having left it, has returned of his or her own free will.

28. The ordinary costs of executing a request shall be borne by the requested State Party, unless otherwise agreed by the States Parties concerned. If expenses of a substantial or extraordinary nature are or will be required to fulfil the request, the States Parties shall consult to determine the terms and conditions under which the request will be executed, as well as the manner in which the costs shall be borne.

29. The requested State Party

(a) Shall provide to the requesting State Party copies of government records, documents or information in its possession that under its domestic law are available to the general public;

(b) May, at its discretion, provide to the requesting State Party in whole, in part or subject to such conditions as it deems appropriate, copies of any government records, documents or information in its possession that under its domestic law are not available to the general public.

30. States Parties shall consider, as may be necessary, the possibility of concluding bilateral or multilateral agreements or arrangements that would serve the purposes of, give practical effect to or enhance the provisions of this article.

Article 47

Transfer of criminal proceedings

States Parties shall consider the possibility of transferring to one another proceedings for the prosecution of an offence established in accordance with this Convention in cases where such transfer is considered to be in the interests of the proper administration of justice, in particular in cases where several jurisdictions are involved, with a view to concentrating the prosecution.

Article 48

Law enforcement cooperation

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

28

th June,

2019.

WHEREAS, by the United Nations Convention against Corruption (the terms of which are set out in Schedule 1 to the following Order) adopted by the General Assembly at New York on 31 October 2003 (referred to subsequently in these recitals as “the Convention”) to which the State is a party, an arrangement was made with other countries that are parties to the Convention for the surrender of persons wanted for prosecution or punishment for the offences specified therein;

AND WHEREAS the Convention was ratified on behalf of the State on 9 November 2011 subject to the declaration specified in Schedule 2 to the following Order;

AND WHEREAS the Convention has also been ratified, or acceded to, by the countries specified in that regard in Part A of Schedule 3 to the following Order, subject to the reservations entered and the declarations made by certain countries concerned specified in Part B of that Schedule;

NOW I, SIMON COVENEY, Minister for Foreign Affairs and Trade, in exercise of powers conferred on me by section 8 (amended by

section 57

(3) of the

Criminal Justice (Terrorist Offences) Act 2005

(No. 2 of 2005)) of the

Extradition Act 1965

(No. 17 of 1965) (as adapted by the Foreign Affairs (Alteration of Name of Department and Title of Minister) Order 2011 (

S.I. No. 246 of 2011

)), and after consultation with the Minister for Justice and Equality, hereby order as follows