Extradition (Designated Foreign Countries) (Amendment) Order,

L.N. 224 of 2006

EXTRADITION ACT

(CAP. 276)

Extradition (Designated Foreign Countries) (Amendment) Order,

IN exercise of the powers conferred by article 7 of the Extradition

Act, the Deputy Prime Minister and Minister for Justice and Home

Affairs has made the following order>-

The title of this Order is the Extradition (Designated Foreign Citation.

Countries) (Amendment) Order, 2006, and it shall be read and construed

as one with the Extradition (Designated Foreign Countries) Order, 2004, L.N. 320 of 2004.

hereinafter referred to as “the principal order”.

Article 5 of the principal order shall be amended as follows>- Amends article 5 of

the principal order.

(a) in paragraph (a) of sub-article (5) thereof, for the words

“the relevant Act<” there shall be substituted the words “the relevant

Act>” and immediately thereafter there shall be inserted the

following proviso>

“Provided that this sub-paragraph shall be deemed to

have been complied with notwithstanding the fact that a copy

of the relative enactments or of a statement of the relevant

law may have not been furnished<”<

(b) in paragraph (a) of sub-article (8) thereof, for the words

“the relevant Act<” there shall be substituted the words “the relevant

Act>” and immediately thereafter there shall be inserted the

following proviso>

“Provided that this sub-paragraph shall be deemed to

have been complied with notwithstanding the fact that a copy

of the relative enactments or of a statement of the relevant

law may have not been furnished<”< and

(c) immediately after sub-article (8) thereof, there shall be

inserted the following new sub-article>

“(9) Any arrest warrant to which this Part applies may

be transmitted by any secure means capable of producing

written records and under conditions permitting the

ascertainment of its authenticity.”.

Immediately after article 5 of the principal order, there shall

be inserted the following new article>

(1) A relevant arrest warrant for prosecution

warrant issued

by scheduled shall also include a warrant issued by a judicial authority of a

scheduled country which is accompanied by the form

contained in the Annex to the Arrangement setting out the

information required by the same form and containing the

statement referred to in sub-article (4).

(2) A relevant arrest warrant after conviction shall

also include a warrant issued by a judicial authority of a

scheduled country which is accompanied by the form

contained in the Annex to the Arrangement setting out the

information required by the same form and containing the

statement referred to in sub-article (7).”.

4. After sub-article (1) of article 11 of the principal order, there

shall be inserted the following new sub-article>

“(1A)

The person brought before the court>

(a) shall have the right to be assisted by a lawyer or

legal procurator, and

(b) if he does not understand the language in which

the proceedings are conducted, shall have the right to the

appointment of an interpreter.”.

5. Immediately after article 13 of the principal order there shall

be inserted the following new article>

In the event that the Court finds the information

“Request for

supplementary

communicated

by the authority which issued a Part II warrant

to be insufficient to allow it to decide on surrender, it shall

request the necessary supplementary information subject to

any time limit which it may lay down for the purpose.”.

6. For article 16 of the principal order, there shall be substituted

the following>

“16. A person’s return to a scheduled country is barred by

reason of prescription if prosecution for the offence in respect of

which extradition is requested is barred by prescription according

to the law of Malta and the acts constituting the offence for which

extradition is requested fall within the jurisdiction of the Maltese

criminal courts.”.

7. In article 22 of the principal order, for the words “paragraph Amends article 22

of the principal

(c)” there shall be substituted the words “paragraph (b)”.

order.

8. Sub-article (8) of article 23 of the principal order shall be Amends article 23

of the principal

deleted.

order.

9. For article 28 of the principal order, there shall be substituted Substitutes article

28 of the principal

the following>

order.

“28. (1) This article applies if at any time in the extradition

hearing the court is informed that the person in respect of whom

the Part II warrant is issued is charged with an offence in Malta

based on the same act on which the Part II warrant is based.

(2) The court may adjourn the extradition hearing until

one of these occurs –

(a)

the charge is disposed of<

(b) the charge is withdrawn<

(c) proceedings in respect of the charge are

discontinued<

(d) the proceedings are put off sine die.

(3) If before the court adjourns the extradition hearing

under sub-article (2) the court has decided under article 13 whether

the person’s return is barred by reason of the rule against ne bis in

idem, the court must decide that question again after resumption

of the hearing.”.

10. After article 28 of the principal order there shall be inserted Adds new article

28A to the principal

the following new article>

order.

“Person also

(1) This article applies if at any time in the

charged

extradition hearing the court is informed that the person in

with offence

in Malta.

respect of whom the Part II warrant is issued is charged with

an offence in Malta based on an act other than the act on

which the Part II warrant is based.

(2) If the court commits the person to custody to

await his return and the person is still being prosecuted for

the charges referred to in sub-article (1), it may postpone the

surrender of the person until one of the following occurs>

(a)

the charge is disposed of<

(b) the charge is withdrawn<

(c) proceedings in respect of the charge are

discontinued<

(d) the proceedings are put off sine die.

(3) If the court commits the person to custody to await

his return and the person has been sentenced and has not yet

served his sentence the court may>

(a) postpone surrender until the person has served

his sentence< or

(b) temporarily surrender the person under

conditions agreed in writing with the authority which

issued the Part II warrant.”.

11. Immediately after article 31 of the principal order, there shall

be inserted the following new article>

(1) This article applies if at any time in the

course of the extradition hearing the court is informed that a

request has been received from the judicial authority of the

scheduled country to hear the person in respect of whom the

Part II warrant is issued.

(2) The court shall decide, after consulting the

Attorney General, whether>

(a) to temporarily transfer the person requested

to the requesting country under such conditions and for

such period as may be agreed, with the concurrence of

the Attorney General, with the requesting judicial

authority< and

(b) to order that the request shall be

communicated to a magistrate for execution whereupon

the provisions of sub-articles (1) and (6) of article 649

of the Criminal Code shall apply.”.

12. For article 32 of the principal order, there shall be substituted Substitution

article 32 of the

the following>

principal order.

“32. The provisions of articles 18 and 19, both inclusive, of

the relevant Act shall apply to appeals by the person committed to

custody and to appeals by the Attorney General as the case may be

and to an application for redress to the Constitutional Court under

article 46 of the Constitution.”.

13. Immediately after sub-article (3) of article 35 of the principal Amends article 35

of the principal

order, there shall be inserted the following new sub-article>

order.

“(4) If sub-article (3) is not complied with and the person

applies to the Court to be discharged the court must order his

discharge, unless reasonable cause is shown for the delay.”.

14. Article 43 of the principal order shall be amended as follows>- Amends article 43

of the principal

order.

(a) for sub-article (3) thereof, there shall be substituted the

following>

“43. If a person consents to his return under this article

he must declare whether he waives any right he would have

(apart from the consent) not to be dealt with in the scheduled

country for an offence committed before his return.”< and

(b) in sub-article (4) thereof, immediately after the word

“Consent” there shall be inserted the words “and any waiver

declared”.

15. In sub-article (8) of article 54 of the principal order, for the Amends article 54

of the principal

words “judge” there shall be substituted the words “court”.

order.

16. Article 59 of the principal order shall be amended as follows>- Amends article 59

of the principal

order.

(a) immediately after sub-article (4) thereof, there shall be

inserted the following new sub-article>-

“(4A) The conduct also constitutes an extraditable

offence in relation to a scheduled country if these conditions

are satisfied>

(a) the conduct occurs outside the scheduled

country and no part of it occurs in Malta<

(b) the conduct would constitute an offence under

the law of Malta punishable with imprisonment or

another form of detention for a term of 12 months or a

greater punishment if it occurred in Malta<

(c) the conduct is so punishable under the law of

the scheduled country (however it is described in that

law).”< and

(d) immediately after sub-article (7) thereof, there

shall be inserted the following new sub-article>

“(8) The scheduled conduct must be taken

for the purposes of sub-article (2)(b) to include

conduct which constitutes-

(a) an attempt, conspiracy or incitement

to carry out conduct falling within the

schedule, or

(b) aiding, abetting, counseling or

procuring the carrying out of conduct falling

within the schedule.”.

17. Article 60 of the principal ordershall be amended as follows>-

(a) immediately after sub-article (4) thereof, there shall be

inserted the following new sub-article>-

“(4A) The conduct also constitutes an extraditable

offence in relation to a scheduled country if the following

conditions are satisfied>

(a) the conduct occurs outside the scheduled

country and no part of it occurs in Malta<

(b) the conduct would constitute an offence under

the law of Malta punishable with imprisonment or

another form of detention for a term of 12 months or a

greater punishment if it occurred in Malta<

(c) a sentence of imprisonment or another form

of detention for a term of 4 months or a greater

punishment has been imposed in the scheduled country

in respect of the conduct.”< and

(b) immediately after sub-article (7) thereof, there shall be

inserted the following new sub-article>

“(8) The scheduled conduct must be taken for the

purposes of sub-article (2)(b) to include conduct which

constitutes –

(a) an attempt, conspiracy or incitement to carry

out conduct falling within the schedule, or

(b) aiding, abetting, counseling or procuring the

carrying out of conduct falling within the schedule.”.

18. Immediately after sub-article (7) of article 62 of the principal Amends article 62

of the principal

order, there shall be inserted the following>

order.

“(8) Any statement or certificate referred to by this article

may be set out in accordance with the form contained in the Annex

to the Arrangement.”.

19. Immediately after article 70 of the principal order, there shall Adds new article

70A to the principal

be inserted the following new article>

order.

“70A. Any period spent by the returned person in preventive

detention in the scheduled country as a result of the execution in

the scheduled country of a Part III warrant shall be deducted from

any sentence to be served in Malta in respect of the offences for

which the Part III warrant was executed by the scheduled country.”.

20. Immediately after article 73 of the principal order, there shall Adds new articles

73A to 73D to the

be inserted the following new articles>

principal order.

“Receiving

73A. (1) A Part II warrant may be received in

of Part II

evidence in proceedings under this Order.

warrant in

evidence.

(2) Any other document issued in a scheduled

country may be received in evidence in proceedings under

this Order if it is duly authenticated.

(3) A document is duly authenticated if (and only

if) one of these applies -

(a) it purports to be signed by a judge, magistrate, any

other judicial authority or an officer of the scheduled country<

(b) it purports to be authenticated by the oath or

affirmation of a witness>

Provided that subsections (2) and (3) do not prevent a

document that is not duly authenticated from being received

in evidence in proceedings under this Order.

Applicability

73B. Articles 22(3) and 27 of the relevant Act shall

of articles 22

apply to proceedings in connection with a request for

extradition to a scheduled country under this Order.”.

73C. (1) The Commissioner of Police may authorize

transit through Malta of a person who is being surrendered to

to scheduled

a scheduled country provided that the following information

is furnished>

(a) the identity and nationality of the person

against whom a Part II warrant has been issued<

(b) the existence of a Part II warrant<

(c) the nature and legal classification of any

offence on which the Part II warrant is based<

(d) the description of the circumstances of any

offence, including the date and place of such offence>

Provided that transit may be refused if the person

being surrendered is a national or permanent resident of

Malta and the surrender is being made for the purpose

of execution of a sentence of imprisonment or another

form of detention.

(2) The information in sub-article (1) may be

transmitted to the Commissioner of Police by any means

capable of producing a written record.

(3) When the transport of the surrendered person

is to take place by air, it will only be necessary to provide the

Commissioner of Police with the information required in sub-

article (1) in the event that an unscheduled landing occurs.

73D. (1) The Court shall, on its own initiative or

at the request of the authority which issued the Part II

warrant or of the Attorney General, through the

Commissioner of Police, seize and hand over to the said

authority any property –

(a) which may be required as evidence in that

country< or

(b) which has been acquired by the person against

whom the Part II warrant was issued as a result of the

offence and which, at the time of the arrest of the person

whose return is requested, is found in the possession of

such person or is discovered subsequently.

(2) The property referred to in sub-article (1) may

be handed over to the authority which issued the Part II warrant

even if extradition, cannot be carried out owing to the death,

disappearance or escape of the person whose return is

requested.

(3) When the said property is liable to seizure or

confiscation in Malta, the Court may, in connection with

proceedings that are pending or with proceedings about to be

taken, temporarily retain such property or hand it over to the

requesting country on condition that it be returned.”.

21. In paragraph (e) of sub-article (1) of article 76 of the principal Amends article 76

of the principal

order, for the words “judge” there shall be substituted the words “court”. order.

22. For Schedule 1 to the principal Order there shall be Amends

Schedule 1 to

substituted the following Schedule 1 which, for purposes of the the principal

Arrangement, shall continue to have effect as if in Schedule 1 thereto regulations.

there were included the countries listed in the Schedule hereto>-

“SCHEDULE 1

(Article 2)

Austria

Belgium

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Ireland

Italy

Latvia

Lithuania

Luxembourg

Poland

Portugal

Slovakia

Slovenia

Spain

Sweden

The Netherlands (except for Antilles or Aruba)

United Kingdom”.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press