APPLICATION OF PART III OF THE DIPLOMATIC IMMUNITIES AND PRIVILEGES ACT (INTERNATIONAL CRIMINAL COURT) ORDER

APPLICATION OF PART III OF THE DIPLOMATIC IMMUNITIES

AND PRIVILEGES ACT (INTERNATIONAL CRIMINAL COURT)

SUBSIDIARY LEGISLATION 191.02

APPLICATION OF PART III OF THE DIPLOMATIC

IMMUNITIES AND PRIVILEGES ACT

(INTERNATIONAL CRIMINAL COURT) ORDER

21st October, 2011

LEGAL NOTICE 412 of 2011.

The title of this Order is the Application of Part III of the

Diplomatic Immunities and Privileges Act (International Criminal

Court) Order.

The International Criminal Court shall enjoy the

immunities and privileges set out in Part I of the Second Schedule

to the Diplomatic Immunities and Privileges Act, and shall have the

legal capacities of a juridical person.

(1) The Articles set out in the Schedule to this Order

(being Articles of the Agreement on the Privileges and Immunities

of The International Criminal Court adopted in 2002) shall have the

same force of law in Malta and shall for the purpose be construed in

accordance with the following provisions of this article.

(2) The Articles referred to in subarticle (1) appear in the

Schedule in the English language only and are being published with

the English text of this Order.

(3)

In those Articles -

"any State Party", "each State Party", "the State Party", "the State

Party concerned" shall be construed as meaning Malta;

"States Parties" shall be construed as including Malta;

"the State Party of which he or she is a national" shall be

construed as meaning a Maltese national;

"a national" shall be construed as meaning a citizen of Malta;

"permanent resident" shall be construed as meaning a person in

favour of whom a permit of residence has been issued in

accordance with the provisions contained in article 7 of the

Immigration Act;

"locally" shall be construed as meaning Malta;

"appropriate authorities of States Parties" shall be construed as

including the Malta Police and the Armed Forces of Malta.

(4) The references in Articles 10, 11, 13, 15, 16 and 18 to 23,

both inclusive, to the extent to which any privileges and immunities

are accorded or granted, shall be construed as referring respectively

to the extent to which any privileges and immunities may be

specified by the Minister by order published in the Government

Gazette.

APPLICATION OF PART III OF THE DIPLOMATIC IMMUNITIES

AND PRIVILEGES ACT (INTERNATIONAL CRIMINAL COURT)

Schedule

(Article 3)

AGREEMENT ON THE PRIVILEGES AND IMMUNITIES OF THE

INTERNATIONAL CRIMINAL COURT

Article 1

Use of terms

For the purposes of the present Agreement

(a) "The Statute" means the Rome Statute of the International Criminal Court

adopted on 17 July 1998 by the United Nations Diplomatic Conference of

Plenipotentiaries on the Establishment of an International Criminal Court;

(b) "The Court" means the International Criminal Court established by the

Statute;

(c)

"States Parties" means States Parties to the present Agreement;

(d) "Representatives of States Parties" means all delegates, deputy delegates,

advisers, technical experts and secretaries of delegations;

(e)

"Assembly" means the Assembly of States Parties to the Statute;

(f)

"Judges" means the judges of the Court;

(g) "The Presidency” means the organ composed of the President and the First

and Second Vice-Presidents of the Court;

(h) "Prosecutor" means the Prosecutor elected by the Assembly in accordance

with article 42, paragraph 4, of the Statute;

(i)

"Deputy Prosecutors" means the Deputy Prosecutors elected by the

Assembly in accordance with article 42, paragraph 4, of the Statute;

(j)

"Registrar" means the Registrar elected by the Court in accordance with

article 43, paragraph 4, of the Statute;

(k) "Deputy Registrar" means the Deputy Registrar elected by the Court in

accordance with article 43, paragraph 4, of the Statute;

(l)

"Counsel" means defence counsel and the legal representatives of victims;

(m)

"Secretary-General" means the Secretary-General of the United Nations;

(n) "Representatives of intergovernmental organizations" means the executive

heads of intergovernmental organizations, including any official acting on his or her

behalf;

(o) "Vienna Convention" means the Vienna Convention on Diplomatic Relations

of 18 April 1961;

(p) "Rules of Procedure and Evidence" means the Rules of Procedure and

Evidence adopted in accordance with article 51 of the Statute.

Article 6

Immunity of the Court, its property, funds and assets

1. The Court, and its property, funds and assets, wherever located and by

whomsoever held, shall be immune from every form of legal process, except insofar

as in any particular case the Court has expressly waived its immunity. It is, however,

understood that no waiver of immunity shall extend to any measure of execution.

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AND PRIVILEGES ACT (INTERNATIONAL CRIMINAL COURT)

2. The property, funds and assets of the Court, wherever located and by

whomsoever held, shall be immune from search, seizure, requisition, confiscation,

expropriation and any other form of interference, whether by executive,

administrative, judicial or legislative action.

3. To the extent necessary to carry out the functions of the Court, the property,

funds and assets of the Court, wherever located and by whomsoever held, shall be

exempt from restrictions, regulations, controls or moratoria of any nature.

Article 7

Inviolability of archives and documents

The archives of the Court, and all papers and documents in whatever form, and

materials being sent to or from the Court, held by the Court or belonging to it,

wherever located and by whomsoever held, shall be inviolable. The termination or

absence of such inviolability shall not affect protective measures that the Court may

order pursuant to the Statute and the Rules of Procedure and Evidence with regard to

documents and materials made available to or used by the Court.

Article 10

Funds and freedom from currency restrictions

1. Without being restricted by financial controls, regulations or financial

moratoriums of any kind, while carrying out its activities

(a) The Court may hold funds, currency of any kind or gold and operate

accounts in any currency;

(b) The Court shall be free to transfer its funds, gold or its currency from

one country to another or within any country and to convert any

currency held by it into any other currency;

(c) The Court may receive, hold, negotiate, transfer, convert or otherwise

deal with bonds and other financial securities;

(d) The Court shall enjoy treatment not less favourable than that accorded

by the State Party concerned to any intergovernmental organization or

diplomatic mission in respect of rates of exchange for its financial

transactions.

2. In exercising its rights under paragraph 1, the Court shall pay due regard to

any representations made by any State Party insofar as it is considered that effect can

be given to such representations without detriment to the interests of the Court.

Article 11

Facilities in respect of communications

1. The Court shall enjoy in the territory of each State Party for the purposes of

its official communications and correspondence treatment not less favourable than

that accorded by the State Party concerned to any intergovernmental organization or

diplomatic mission in the matter of priorities, rates and taxes applicable to mail and

the various forms of communication and correspondence.

2. No censorship shall be applied to the official communications or

correspondence of the Court.

3. The Court may use all appropriate means of communication, including

electronic means of communication, and shall have the right to use codes or cipher

for its official communications and correspondence. The official communications

and correspondence of the Court shall be inviolable.

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The Court shall have the right to dispatch and receive correspondence and

other materials or communications by courier or in sealed bags, which shall have the

same privileges, immunities and facilities as diplomatic couriers and bags.

The Court shall have the right to operate radio and other telecommunication

equipment on any frequencies allocated to it by the States Parties in accordance with

their national procedures. The States Parties shall endeavour to allocate to the Court,

to the extent possible, frequencies for which it has applied.

Article 13

Representatives of States participating in the Assembly and its subsidiary organs

and representatives of intergovernmental organizations

1. Representatives of States Parties to the Statute attending meetings of the

Assembly and its subsidiary organs, representatives of other States that may be

attending meetings of the Assembly and its subsidiary organs as observers in

accordance with article 112, paragraph 1, of the Statute, and representatives of States

and of intergovernmental organizations invited to meetings of the Assembly and its

subsidiary organs shall, while exercising their official functions and during their

journey to and from the place of meeting, enjoy the following privileges and

immunities

(a) Immunity from personal arrest or detention;

(b) Immunity from legal process of every kind in respect of words spoken

or written, and all acts performed by them in their official capacity;

such immunity shall continue to be accorded notwithstanding that the

persons concerned may have ceased to exercise their functions as

representatives;

(c) Inviolability of all papers and documents in whatever form;

(d) The right to use codes or cipher, to receive papers and documents or

correspondence by courier or in sealed bags and to receive and send

electronic communications;

(e) Exemption from immigration restrictions, alien registration

requirements and national service obligations in the State Party they are

visiting or through which they are passing in the exercise of their

functions;

(f)

The same privileges in respect of currency and exchange facilities as are

accorded to representatives of foreign Governments on temporary

official missions;

(g) The same immunities and facilities in respect of their personal baggage

as are accorded to diplomatic envoys under the Vienna Convention;

(h) The same protection and repatriation facilities as are accorded to

diplomatic agents in time of international crisis under the Vienna

Convention;

(i)

Such other privileges, immunities and facilities not inconsistent with

the foregoing as diplomatic agents enjoy, except that they shall have no

right to claim exemption from customs duties on goods imported

(otherwise as part of their personal baggage) or from excise duties or

sales taxes.

2. Where the incidence of any form of taxation depends upon residence,

periods during which the representatives described in paragraph 1 attending the

meetings of the Assembly and its subsidiary organs are present in a State Party for

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AND PRIVILEGES ACT (INTERNATIONAL CRIMINAL COURT)

the discharge of their duties shall not be considered as periods of residence.

3. The provisions of paragraphs 1 and 2 of this article are not applicable as

between a representative and the authorities of the State Party of which he or she is a

national or of the State Party or intergovernmental organization of which he or she is

or has been a representative.

Article 14

Representatives of States participating in the proceedings of the Court

Representatives of States participating in the proceedings of the Court shall, while

exercising their official functions, and during their journey to and from the place of

the proceedings, enjoy the privileges and immunities referred to in article 13.

Article 15

Judges, Prosecutor, Deputy Prosecutors and Registrar

1. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall,

when engaged on or with respect to the business of the Court, enjoy the same

privileges and immunities as are accorded to heads of diplomatic missions and shall,

after the expiry of their terms of office, continue to be accorded immunity from legal

process of every kind in respect of words which had been spoken or written and acts

which had been performed by them in their official capacity.

2. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar and

members of their families forming part of their households shall be accorded every

facility for leaving the country where they may happen to be and for entering and

leaving the country where the Court is sitting. On journeys in connection with the

exercise of their functions, the judges, the Prosecutor, the Deputy Prosecutors and

the Registrar shall in all States Parties through which they may have to pass enjoy all

the privileges, immunities and facilities granted by States Parties to diplomatic

agents in similar circumstances under the Vienna Convention.

3. If a judge, the Prosecutor, a Deputy Prosecutor or the Registrar, for the

purpose of holding himself or herself at the disposal of the Court, resides in any

State Party other than that of which he or she is a national or permanent resident, he

or she shall, together with family members forming part of his or her household, be

accorded diplomatic privileges, immunities and facilities during the period of

residence.

4. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar and

members of their families forming part of their households shall be accorded the

same repatriation facilities in time of international crisis as are accorded to

diplomatic agents under the Vienna Convention.

5. Paragraphs 1 to 4 of this article shall apply to judges of the Court even after

their term of office has expired if they continue to exercise their functions in

accordance with article 36, paragraph 10, of the Statute.

The salaries, emoluments and allowances paid to the judges, the Prosecutor,

the Deputy Prosecutors and the Registrar by the Court shall be exempt from taxation.

Where the incidence of any form of taxation depends upon residence, periods during

which the judges, the Prosecutor, the Deputy Prosecutors and the Registrar are

present in a State Party for the discharge of their functions shall not be considered as

periods of residence for purposes of taxation. States Parties may take these salaries,

emoluments and allowances into account for the purpose of assessing the amount of

taxes to be applied to income from other sources.

States Parties shall not be obliged to exempt from income tax pensions or

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AND PRIVILEGES ACT (INTERNATIONAL CRIMINAL COURT)

annuities paid to former judges, Prosecutors and Registrars and their dependants.

Article 16

Deputy Registrar, staff of the Office of the Prosecutor and staff of the Registry

1. The Deputy Registrar, the staff of the Office of the Prosecutor and the staff

of the Registry shall enjoy such privileges, immunities and facilities as are necessary

for the independent performance of their functions. They shall be accorded

(a) Immunity from personal arrest or detention and from seizure of their

personal baggage;

(b) Immunity from legal process of every kind in respect of words spoken

or written and all acts performed by them in their official capacity,

which immunity shall continue to be accorded even after termination of

their employment with the Court;

(c) Inviolability for all official papers and documents in whatever form and

materials;

(d) Exemption from taxation on the salaries, emoluments and allowances

paid to them by the Court. States Parties may take these salaries,

emoluments and allowances into account for the purpose of assessing

the amount of taxes to be applied to income from other sources;

(e) Exemption from national service obligations;

(f)

Together with members of their families forming part of their

household, exemption from immigration restrictions or alien

registration;

(g) Exemption from inspection of personal baggage, unless there are

serious grounds for believing that the baggage contains articles the

import or export of which is prohibited by the law or controlled by the

quarantine regulations of the State Party concerned; an inspection in

such a case shall be conducted in the presence of the official concerned;

(h) The same privileges in respect of currency and exchange facilities as are

accorded to the officials of comparable rank of diplomatic missions

established in the State Party concerned;

(i)

Together with members of their families forming part of their

household, the same repatriation facilities in time of international crisis

as are accorded to diplomatic agents under the Vienna Convention;

(j)

The right to import free of duties and taxes, except payments for

services, their furniture and effects at the time of first taking up post in

the State Party in question and to re-export their furniture and effects

free of duties and taxes to their country of permanent residence.

2. States Parties shall not be obliged to exempt from income tax pensions or

annuities paid to former Deputy Registrars, members of the staff of the Office of the

Prosecutor, members of the staff of the Registry and their dependants.

Article 17

Personnel recruited locally and not otherwise covered by the present Agreement

Personnel recruited by the Court locally and not otherwise covered by the present

Agreement shall be accorded immunity from legal process in respect of words

spoken or written and all acts performed by them in their official capacity for the

Court. Such immunity shall continue to be accorded after termination of employment

with the Court for activities carried out on behalf of the Court. During their

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employment, they shall also be accorded such other facilities as may be necessary

for the independent exercise of their functions for the Court.

Article 18

Counsel and persons assisting defence counsel

1. Counsel shall enjoy the following privileges, immunities and facilities to the

extent necessary for the independent performance of his or her functions, including

the time spent on journeys, in connection with the performance of his or her

functions and subject to production of the certificate referred to in paragraph 2 of

this article

(a) Immunity from personal arrest or detention and from seizure of his or

her personal baggage;

(b) Immunity from legal process of every kind in respect of words spoken

or written and all acts performed by him or her in official capacity,

which immunity shall continue to be accorded even after he or she has

ceased to exercise his or her functions;

(c) Inviolability of papers and documents in whatever form and materials

relating to the exercise of his or her functions;

(d) For the purposes of communications in pursuance of his or her functions

as counsel, the right to receive and send papers and documents in

whatever form;

(e) Exemption from immigration restrictions or alien registration;

(f)

Exemption from inspection of personal baggage, unless there are

serious grounds for believing that the baggage contains articles the

import or export of which is prohibited by law or controlled by the

quarantine regulations of the State Party concerned; an inspection in

such a case shall be conducted in the presence of the counsel concerned;

(g) The same privileges in respect of currency and exchange facilities as are

accorded to representatives of foreign Governments on temporary

official missions;

(h) The same repatriation facilities in time of international crisis as are

accorded to diplomatic agents under the Vienna Convention.

2. Upon appointment of counsel in accordance with the Statute, the Rules of

Procedure and Evidence and the Regulations of the Court, counsel shall be provided

with a certificate under the signature of the Registrar for the period required for the

exercise of his or her functions. Such certificate shall be withdrawn if the power or

mandate is terminated before the expiry of the certificate.

3. Where the incidence of any form of taxation depends upon residence,

periods during which counsel is present in a State Party for the discharge of his or

her functions shall not be considered as periods of residence.

4. The provisions of this article shall apply mutatis mutandis to persons

assisting defence counsel in accordance with rule 22 of the Rules of Procedure and

Evidence.

Article 19

Witnesses

1. Witnesses shall enjoy the following privileges, immunities and facilities to

the extent necessary for their appearance before the Court for purposes of giving

evidence, including the time spent on journeys in connection with their appearance

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before the Court, subject to the production of the document referred to in paragraph

2 of this article

(a) Immunity from personal arrest or detention;

(b) Without prejudice to subparagraph (d) below, immunity from seizure of

their personal baggage unless there are serious grounds for believing

that the baggage contains articles the import or export of which is

prohibited by law or controlled by the quarantine regulations of the

State Party concerned;

(c) Immunity from legal process of every kind in respect of words spoken

or written and all acts performed by them in the course of their

testimony, which immunity shall continue to be accorded even after

their appearance and testimony before the Court;

(d) Inviolability of papers and documents in whatever form and materials

relating to their testimony;

(e) For purposes of their communications with the Court and counsel in

connection with their testimony, the right to receive and send papers and

documents in whatever form;

(f)

Exemption from immigration restrictions or alien registration when they

travel for purposes of their testimony;

(g) The same repatriation facilities in time of international crisis as are

accorded to diplomatic agents under the Vienna Convention.

2. Witnesses who enjoy the privileges, immunities and facilities referred to in

paragraph 1 of this article shall be provided by the Court with a document certifying

that their appearance is required by the Court and specifying a time period during

which such appearance is necessary.

Article 20

Victims

1. Victims participating in the proceedings in accordance with rules 89 to 91 of

the Rules of Procedure and Evidence shall enjoy the following privileges,

immunities and facilities to the extent necessary for their appearance before the

Court, including the time spent on journeys in connection with their appearance

before the Court, subject to the production of the document referred to in paragraph

2 of this article

(a) Immunity from personal arrest or detention;

(b) Immunity from seizure of their personal baggage unless there are

serious grounds for believing that the baggage contains articles the

import or export of which is prohibited by law or controlled by the

quarantine regulations of the State Party concerned;

(c) Immunity from legal process of every kind in respect of words spoken

or written and all acts performed by them in the course of their

appearance before the Court, which immunity shall continue to be

accorded even after their appearance before the Court;

(d) Exemption from immigration restrictions or alien registration when they

travel to and from the Court for purposes of their appearance.

2. Victims participating in the proceedings in accordance with rules 89 to 91 of

the Rules of Procedure and Evidence who enjoy the privileges, immunities and

facilities referred to in paragraph 1 of this article shall be provided by the Court with

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a document certifying their participation in the proceedings of the Court and

specifying a time period for that participation.

Article 21

Experts

1. Experts performing functions for the Court shall be accorded the following

privileges, immunities and facilities to the extent necessary for the independent

exercise of their functions, including the time spent on journeys in connection with

their functions, subject to production of the document referred to in paragraph 2 of

this article

(a) Immunity from personal arrest or detention and from seizure of their

personal baggage;

(b) Immunity from legal process of every kind in respect of words spoken

or written and all acts performed by them in the course of the

performance of their functions for the Court, which immunity shall

continue to be accorded even after the termination of their functions;

(c) Inviolability of papers and documents in whatever form and materials

relating to their functions for the Court;

(d) For the purposes of their communications with the Court, the right to

receive and send papers and documents in whatever form and materials

relating to their functions for the Court by courier or in sealed bags;

(e) Exemption from inspection of personal baggage, unless there are

serious grounds for believing that the baggage contains articles the

import or export of which is prohibited by law or controlled by the

quarantine regulations of the State Party concerned; an inspection in

such a case shall be conducted in the presence of the expert concerned;

(f)

The same privileges in respect of currency and exchange facilities as are

accorded to representatives of foreign Governments on temporary

official missions;

(g) The same repatriation facilities in time of international crisis as are

accorded to diplomatic agents under the Vienna Convention;

(h) Exemption from immigration restrictions or alien registration in relation

to their functions as specified in the document referred to in paragraph 2

of this article.

2. Experts who enjoy the privileges, immunities and facilities referred to in

paragraph 1 of this article shall be provided by the Court with a document certifying

that they are performing functions for the Court and specifying a time period for

which their functions will last.

Article 22

Other persons required to be present at the seat of the Court

1. Other persons required to be present at the seat of the Court shall, to the

extent necessary for their presence at the seat of the Court, including the time spent

on journeys in connection with their presence, be accorded the privileges,

immunities and facilities provided for in article 20, paragraph 1, subparagraphs (a)

to (d), of the present Agreement, subject to production of the document referred to in

paragraph 2 of this article.

2. Other persons required to be present at the seat of the Court shall be

provided by the Court with a document certifying that their presence is required at

the seat of the Court and specifying a time period during which such presence is

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Article 23

Nationals and permanent residents

At the time of signature, ratification, acceptance, approval or accession, any State

may declare that

(a) Without prejudice to paragraph 6 of article 15 and paragraph 1 (d) of

article 16, a person referred to in articles 15, 16, 18, 19 and 21 shall, in

the territory of the State Party of which he or she is a national or

permanent resident, enjoy only the following privileges and immunities

to the extent necessary for the independent performance of his or her

functions or his or her appearance or testimony before the Court

(i) Immunity from personal arrest and detention;

(ii) Immunity from legal process of every kind in respect of words

spoken or written and all acts performed by that person in the

performance of his or her functions for the Court or in the course

of his or her appearance or testimony, which immunity shall

continue to be accorded even after the person has ceased to

exercise his or her functions for the Court or his or her appearance

or testimony before it;

(iii) Inviolability of papers and documents in whatever form and

materials relating to the exercise of his or her functions for the

Court or his or her appearance or testimony before it;

(iv) For the purposes of their communications with the Court and for a

person referred to in article 19, with his or her counsel in

connection with his or her testimony, the right to receive and send

papers in whatever form.

(b) A person referred to in articles 20 and 22 shall, in the territory of the

State Party of which he or she is a national or permanent resident, enjoy

only the following privileges and immunities to the extent necessary for

his or her appearance before the Court

(i) Immunity from personal arrest and detention;

(ii) Immunity from legal process in respect of words spoken or

written and all acts performed by that person in the course of his

or her appearance before the Court, which immunity shall

continue to be accorded even after his or her appearance before

the Court.

Article 25

Waiver of privileges and immunities provided for in articles 13 and 14

Privileges and immunities provided for in articles 13 and 14 of the present

Agreement are accorded to the representatives of States and intergovernmental

organizations not for the personal benefit of the individuals themselves, but in order

to safeguard the independent exercise of their functions in connection with the work

of the Assembly, its subsidiary organs and the Court. Consequently, States Parties

not only have the right but are under a duty to waive the privileges and immunities of

their representatives in any case where, in the opinion of those States, they would

impede the course of justice and can be waived without prejudice to the purpose for

which the privileges and immunities are accorded. States not party to the present

Agreement and intergovernmental organizations are granted the privileges and

immunities provided for in articles 13 and 14 of the present Agreement on the

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understanding that they undertake the same duty regarding waiver.

Article 26

Waiver of privileges and immunities provided for in articles 15 to 22

1. The privileges and immunities provided for in articles 15 to 22 of the

present Agreement are granted in the interests of the good administration of justice

and not for the personal benefit of the individuals themselves. Such privileges and

immunities may be waived in accordance with article 48, paragraph 5, of the Statute

and the provisions of this article and there is a duty to do so in any particular case

where they would impede the course of justice and can be waived without prejudice

to the purpose for which they are accorded.

2. The privileges and immunities may be waived

(a) In the case of a judge or the Prosecutor, by an absolute majority of the

judges;

(b) In the case of the Registrar, by the Presidency;

(c) In the case of the Deputy Prosecutors and the staff of the Office of the

Prosecutor, by the Prosecutor;

(d) In the case of the Deputy Registrar and the staff of the Registry, by the

Registrar;

(e) In the case of personnel referred to in article 17, by the head of the

organ of the Court employing such personnel;

(f)

In the case of counsel and persons assisting defence counsel, by the

Presidency;

(g) In the case of witnesses and victims, by the Presidency;

(h) In the case of experts, by the head of the organ of the Court appointing

the expert;

(i)

In the case of other persons required to be present at the seat of the

Court, by the Presidency.

Article 27

Social security

From the date on which the Court establishes a social security scheme, the persons

referred to in articles 15, 16 and 17 shall, with respect to services rendered for the

Court, be exempt from all compulsory contributions to national social security

schemes.