EXTRADITION (UNITED STATES OF AMERICA) ORDER

SUBSIDIARY LEGISLATION 276.07

EXTRADITION (UNITED STATES OF AMERICA)

ORDER

1st July, 2009

LEGAL NOTICE 375 of 2007, as amended by Legal Notice 48 of 2010.

The title of this Order is the Extradition (United States of

America) Order.

In this Order, unless the context otherwise requires -

"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 requested State" means the State receiving the request for

extradition;

"the Treaty" means the Treaty between the Government of Malta

and the Government of the United States of America signed on the

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

relative Treaty published in the Government Gazette dated the 13th

November 2007.

(1) The provisions of the relevant Act, save where

otherwise expressly indicated, shall apply to requests received or

made by Malta on or after the relevant date for the return of a

fugitive criminal to or from the United States of America in

pursuance of a request made under 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

O r d e r f r o m , t h e U n i t e d St a t e s o f A m e r i c a s u b j e c t t o s u c h

cond itio ns, exceptions, ad ap tations o r mo dification s 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 befo re th e relev an t date, an d an y

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" and for the words "twelve months" therein, there were

substituted the words "of more than twelve months"..

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.

(1) For the purposes of this Order, subarticle (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.".

(2) For the purposes of this Order immediately after sub-article

(3) of article 10 of the relevant Act there shall be added the

following

"(3A) When the description of the offence charged is

altered in the course of proceedings, a person shall

not be returned under this Act to any country, or

committed to or kept in custody for the purpose of

such return, unless provision is made by the law of

that country, or by an arrangement made with that

country, that the extradited person will only be dealt

with insofar 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 extradition request 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 subarticle

(2) 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, immediately after article 11

of the relevant Act there shall be added the following new article

" Further

A person returned to the United States of

extradition.

America, may not be extradited to a third State or

to an inter national tr ib unal fo r an y offen ce

committed prior to extradition unless the

Minister consents.".

8. For the purposes of this Order, immediately after article 12

of the relevant Act there shall be added the following new article

" Temporary

(1) If the court commits the person to

surrender.

custody to await his return and the person is still

being prosecuted for some offence committed

within Maltese jurisdiction or is undergoing

sentence in Malta, the court may temporarily

surrender the person requested to the United

States of America for the purpose of prosecution.

(2) The temporary surrender shall take place

in accordance with the conditions agreed in

writing with the authority making the request for

extradition.".

9. For the purposes of this Order, subarticle (5) of article 15

of the Act shall be amended as follows

(a) the whole subarticle (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. (Deleted by Legal Notice 48 of 2010).

11. For the purposes of this Order, for subarticle (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 or of

the Ministry or Department responsible for Foreign

Affairs 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 subarticle (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 subarticle (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 subarticle (2) thereof, for the words

"dealt with." there shall be substituted the words "dealt

with; or";

(b) immediately after paragraph (c) of subarticle (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) immediately after sub-article (3) thereof, there shall be

added the following

"(3A) (a) When the description of the offence

charged has been altered in the course of

extradition proceedings, a person returned

to Malta shall only be dealt with insofar 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 extradition

request and is punishable by the same

maximum penalty as, or a lesser

maximum penalty than, the offence for

which extradition was granted.

(b) A person returned to Malta may not be

extradited to a third State or to an

international tribunal for any offence

committed prior to extradition to Malta

unless the requested State consents.

(c) The foregoing provisions of this sub-

article shall not prevent the further

extradition of a person to a third State if

(i) that person leaves the territory of

Malta after extradition and

voluntarily returns to it; or

(ii) that person does not leave the

territory of Malta within thirty

days of the day on which that

person is in a position to leave.";

(d) in subarticle (3) thereof, for the words "forty-five"

there shall be substituted the word "thirty".

Where the minister has given an undertaking in connection

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

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

States of America by a third State or by the United States of

America to a third State provided 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 subarticle (1) in the event

that an unscheduled landing occurs.

(3) A person being conveyed through Malta in the course of his

extradition or removal as a convicted prisoner from one country to

another shall be kept in custody during the period of transit.

When extradition is ordered for an extraditable offence, it

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

if such other offence does not meet the conditions relative to the

sentence’s duration laid down in article 8(1)(a) of the relevant Act,

provided that all other requirements for extradition are met.