Extradition (United States of America) Order, 2007

L.N. 375 of 2007

EXTRADITION ACT

(CAP. 276)

Extradition (United States of America) Order, 2007

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 designated the United States of America for purposes of

Article 6 of the Extradition Act and has made the following order>-

(1) The title of this Order is the Extradition (United States Citation and

commencement.

of America) Order, 2007.

(2) This Order shall enter into force on such day as the

Minister shall order in the Gazette after the Treaty enters into force in

accordance with the terms of the said Treaty.

In this Order, unless the context otherwise requires -

Interpretation.

“the Minister” means the Minister responsible for justice<

“the relevant Act” means the Extradition Act<

“the relevant date” shall mean the date the Order enters into

force<

“the Treaty” means the Treaty between the Government of

Malta and the Government of the United States of America signed

on the 18 th May 2006 in Valletta, the terms of which are set out in

the relative Treaty published in the Government Gazette dated the

13 th November 2007.

The provisions of the relevant Act, save where otherwise Relationship

expressly indicated, shall apply to requests received or made by Malta between

and the

on or after the relevant date for the return of a fugitive criminal to or relevant Act and

transitory

from the United States of America in pursuance of a request made under provisions.

this Order, and the provisions of the relevant Act shall have effect in

relation to the return under this Order of persons to, or in relation to

persons returned under this Order from, the United States of America

subject to such conditions, exceptions, adaptations or modifications as

are specified in this Order.

(2) The relevant Act and any applicable Treaty in force

before the relevant date shall continue to apply to requests for the return

of a fugitive criminal to the United States of America pending in Malta

on the relevant date and to requests made by Malta to the United States

of America before the relevant date, and any arrangement applicable

between the United States of America and Malta before the relevant

date shall also continue to apply to those requests>

Provided that Articles 2 and 16 of the Treaty shall apply to

requests pending in Malta on the relevant date.

For the purposes of this Order, article 8(1)(a) of the relevant

Act shall apply as if for the words “under that law” therein there were

substituted the words “under Maltese law and under that law”.

When the laws of Malta do not provide for the punishment of

an offence committed outside its territory in similar circumstances as

those in which the offence for which extradition is sought is being

requested, the Minister, at his discretion, may nevertheless grant

extradition provided that all other applicable requirements for extradition

are satisfied.

For the purposes of this Order, sub-article (3) of article 10 of

the relevant Act shall be amended as follows>

(a) in paragraph (c) thereof, for the words “so dealt with.”

there shall be substituted the words “so dealt with< or”<

(b) immediately after paragraph (c) thereof, there shall be

added the following new paragraph>

“(d) any lesser included offence shown by its

constituent elements to be an extraditable offence and based

on the same facts as the offence for which extradition was

ordered.”< and

(c) the whole sub-article (3) shall be renumbered as

paragraph (a) thereof, and immediately after paragraph (a) as

renumbered there shall be added the following new paragraph>

“(b) When the description of the offence is altered in

the course of proceedings, the extradited person shall only be

prosecuted in so far as the offence, under its new description,

is shown by its constituent elements to be an extraditable

offence and is based on the same facts contained in the request

for extradition and is punishable by the same maximum

penalty as, or a lesser maximum penalty than, the offence for

which extradition was granted.”.

For the purposes of this Order, paragraph (c) of sub-article (2) Amends article 11

of the relevant Act.

of article 11 of the relevant Act shall apply as if for the words “will be

granted a new trial if he so requests<” therein there were substituted the

words “was afforded an adequate opportunity to present a defence or

that there are adequate remedies or additional proceedings available to

such person after surrender<”.

For the purposes of this Order, for article 12 of the relevant Substitutes article

12 of the Act.

Act, there shall be substituted the following>

If at any time in the extradition hearing the court

is informed that the person in respect of whom a request for

extradition has been received is charged with an offence in

Malta, or is serving sentence in Malta for an offence, the court

may>

(a) postpone the extradition hearing until the person

has been discharged whether by acquittal or on the

expiration of his sentence or otherwise< or

(b) temporarily surrender the person under

conditions agreed to in writing with the authority making

the request for extradition.”.

9. For the purposes of this Order, sub-article (5) of article 15 of Amends article 15

of the relevant Act.

the Act shall be amended as follows>

(a) the whole sub-article (5) thereof shall be renumbered as

paragraph (a)< and

(b) immediately after paragraph (a) as renumbered, there

shall be inserted the following>

“(b) When a person consents to his return under the

preceding sub-article he must declare whether he waives any

right he would have, apart from the consent, not to be dealt

with in the United States of America for an offence committed

before his return.”.

10. For purposes of this Order, in sub-article (4) of article 21 of Amends article 21

of the relevant Act.

the relevant Act immediately after the word “has been made by another

country” there shall be inserted the words “or international tribunal”.

11. For the purposes of this Order, for sub-article (2) of article

22 of the relevant Act there shall be substituted the following-

“(2) A document shall be deemed to be duly

authenticated for the purpose of this article if it bears the

certificate or seal of the United States Department of Justice

and shall be admissible in evidence in proceedings under the

relevant Act without further certification, authentication or other

legalization.”.

12. For the purposes of this Order, article 23 of the relevant Act

shall be amended as follows>

(a) in sub-article (1) thereof, for the words “any property”

there shall be substituted the words “all items connected with the

offence in respect of which extradition is granted, and any

property”< and

(b) in sub-article (2) thereof, for the words”“death or escape”

there shall be substituted the words “death, disappearance or

escape”.

For the purposes of this Order, article 25 of the relevant Act

shall be amended as follows>

(a) in paragraph (c) of sub-article (2) thereof, for the words

“dealt with.” there shall be substituted the words “dealt with< or”<

(b) immediately after paragraph (c) of sub-article (2) thereof,

there shall be added the following new paragraph>

“(d) any lesser included offence shown by its

constituent elements to be an extraditable offence and based

on the same facts as the offence for which extradition was

ordered.”<

(c) the whole sub-article (2) shall be renumbered as

paragraph (a) and immediately after paragraph (a) as renumbered

there shall be added the following new paragraph>

“(b) When the description of the offence is altered in the

course of proceedings, the extradited person shall only be

prosecuted in so far as the offence, under its new description, is

shown by its constituent elements to be an extraditable offence

and is based on the same facts contained in the request for

extradition and is punishable by the same maximum penalty as, or

a lesser maximum penalty than, the offence for which extradition

was granted.”<

(d) in sub-article (3) thereof, for the words “forty-five” there

shall be substituted the word “thirty”< and

(e) immediately after sub article (3) thereof, there shall be

inserted the following new sub-article>

(3A) The foregoing provisions of this article shall not

“Further

extradition

prevent the further extradition of a person to a third State or

international tribunal, if>

(a) that person leaves the territory of Malta after

extradition and voluntarily returns to it< or

(b) that person does not leave the territory of Malta within

30 days of the day on which that person is in a position to

leave.”.

Where the minister has given an undertaking in connection Undertaking by the

Minister.

to the temporary surrender of a person to Malta, and the undertaking

includes terms that the person be kept in custody until the conclusion of

any proceedings against him in Malta for an offence, a court may grant

bail to the person in the proceedings only if it considers that there are

exceptional circumstances which justify it.

(1) The Commissioner of Police may authorize transit Commissioner of

Police

through Malta of a person who is being surrendered to the United States may authorize

of America or by the United States of America to a third State provided transit.

that the following information is furnished>

(a)

a description of the person being surrendered<

(b) a brief statement of the facts of the case.

(2) 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.

When extradition is ordered for an extraditable offence, it Extradition for

lesser offences.

shall also be ordered for any other offence specified in the request if

such other offence is punishable by one year’s deprivation of liberty or

less, provided that all other requirements for extradition are met.

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