Extradition Act 1965 (Application of Part II) (Amendment) Order 2010.

• Published date: 19 February 2010
• Statutory Instrument No.: 45/2010

S.I. No. 45 of 2010

EXTRADITION ACT 1965 (APPLICATION OF PART II) (AMENDMENT) ORDER 2010

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 19th February, 2010.

WHEREAS by the Treaty on Extradition between the State and the United States of America, signed at Washington D.C. on the 13th day of July 1983 (hereinafter referred to as “the United States Treaty”), an arrangement was made with the United States of America for the surrender of persons wanted for prosecution or punishment for an offence specified in Article II thereof;

AND WHEREAS the terms of the United States Treaty were approved by Dáil Éireann on the 25th day of November 1986;

AND WHEREAS the Agreement on Extradition between the European Union and the United States of America (the terms of which are set out in Part A of Schedule 9 (inserted by Article 2 of this Order) of the Extradition Act 1965 (Application of Part II) Order 2000 ( S.I. No. 474 of 2000 )), signed at Washington D.C. on the 25th day of June 2003 (hereinafter referred to as “the U.S.-EU Extradition Agreement”), provides for enhancements to cooperation in the context of applicable extradition relations between the Member States of the European Union and the United States of America governing extradition of offenders;

AND WHEREAS the terms of the U.S.-EU Extradition Agreement were approved by Dáil Éireann and Seanad Éireann on the 16th day of October 2008;

AND WHEREAS an Instrument as contemplated by Article 3(2) of the Agreement on Extradition between the European Union and the United States of America signed 25 June 2003, as to the Application of the Treaty on Extradition between Ireland and the United States of America signed on 13 July 1983 (hereinafter referred to as “the Instrument”, the terms of which are set out in Part B of Schedule 9 (inserted by Article 2 of this Order) of the Extradition Act 1965 (Application of Part II) Order 2000 ( S.I. No. 474 of 2000 )), signed at Dublin on the 14th day of July 2005;

AND WHEREAS the Instrument was approved by Dáil Éireann on the 21st day of October 2008;

AND WHEREAS by Council Decision 2009/820/CFSP, the U.S.-EU Extradition Agreement was approved on behalf of the European Union on the 23rd day of October 2009;

AND WHEREAS by notes exchanged on the 10th day of August 2009 and the 12th day of August 2009, the State and the United States of America, respectively, have, in accordance with Article 5(a) of the Instrument, notified each other that their respective applicable internal procedures for the entry into force of the Instrument have been completed;

NOW I, Micheál Martin, Minister for Foreign Affairs, in exercise of the powers conferred on me by section 8 (amended by section 49 of the European Arrest Warrant Act 2003 (No. 45 of 2003)) of the Extradition Act 1965 (No. 17 of 1965) and after consultation with the Minister for Justice, Equality and Law Reform, hereby make the following order:

1. (1) This Order may be cited as the Extradition Act 1965 (Application of Part II) (Amendment) Order 2010.

(2) This Order comes into operation on 1 February 2010.

2. The Extradition Act 1965 (Application of Part II) Order 2000 ( S.I. No. 474 of 2000 ) is amended by substituting for Schedule 9 (as amended by Article 3(a) of the Extradition Act 1965 (Application of Part II) (Amendment) Order 2002 ( S.I. No. 173 of 2002 )) the following:

“SCHEDULE 9

PART A AGREEMENT ON EXTRADITION BETWEEN THE EUROPEAN UNION AND THE UNITED STATES OF AMERICA

THE EUROPEAN UNION AND THE UNITED STATES OF AMERICA,

DESIRING further to facilitate cooperation between the European Union Member States and the United States of America,

DESIRING to combat crime in a more effective way as a means of protecting their respective democratic societies and common values,

HAVING DUE REGARD for rights of individuals and the rule of law,

MINDFUL of the guarantees under their respective legal systems which provide for the right to a fair trial to an extradited person, including the right to adjudication by an impartial tribunal established pursuant to law,

DESIRING to conclude an Agreement relating to the extradition of offenders,

HAVE AGREED AS FOLLOWS:

Article 1

Object and Purpose

The Contracting Parties undertake, in accordance with the provisions of this Agreement, to provide for enhancements to cooperation in the context of applicable extradition relations between the Member States and the United States of America governing extradition of offenders.

Article 2

Definitions

1. “Contracting Parties” shall mean the European Union and the United States of America.

2. “Member State” shall mean a Member State of the European Union.

3. “Ministry of Justice” shall, for the United States of America, mean the United States Department of Justice; and for a Member State, its Ministry of Justice, except that with respect to a Member State in which functions described in Articles 3, 5, 6, 8 or 12 are carried out by its Prosecutor General, that body may be designated to carry out such function in lieu of the Ministry of Justice in accordance with Article 19, unless the United States and the Member State concerned agree to designate another body.

Article 3

Scope of application of this Agreement in relation to bilateral extradition treaties with Member States

1. The European Union, pursuant to the Treaty on European Union, and the United States of America shall ensure that the provisions of this Agreement are applied in relation to bilateral extradition treaties between the Member States and the United States of America, in force at the time of the entry into force of this Agreement, under the following terms:

(a) Article 4 shall be applied in place of bilateral treaty provisions that authorise extradition exclusively with respect to a list of specified criminal offences;

(b) Article 5 shall be applied in place of bilateral treaty provisions governing transmission, certification, authentication or legalisation of an extradition request and supporting documents transmitted by the requesting State;

(c) Article 6 shall be applied in the absence of bilateral treaty provisions authorising direct transmission of provisional arrest requests between the United States Department of Justice and the Ministry of Justice of the Member State concerned;

(d) Article 7 shall be applied in addition to bilateral treaty provisions governing transmission of extradition requests;

(e) Article 8 shall be applied in the absence of bilateral treaty provisions governing the submission of supplementary information; where bilateral treaty provisions do not specify the channel to be used, paragraph 2 of that Article shall also be applied;

(f) Article 9 shall be applied in the absence of bilateral treaty provisions authorising temporary surrender of persons being proceeded against or serving a sentence in the requested State;

(g) Article 10 shall be applied, except as otherwise specified therein, in place of, or in the absence of, bilateral treaty provisions pertaining to decision on several requests for extradition of the same person;

(h) Article 11 shall be applied in the absence of bilateral treaty provisions authorising waiver of extradition or simplified extradition procedures;

(i) Article 12 shall be applied in the absence of bilateral treaty provisions governing transit; where bilateral treaty provisions do not specify the procedure governing unscheduled landing of aircraft, paragraph 3 of that Article shall also be applied;

(j) Article 13 may be applied by the requested State in place of, or in the absence of, bilateral treaty provisions governing capital punishment;

(k) Article 14 shall be applied in the absence of bilateral treaty provisions governing treatment of sensitive information in a request.

2. (a) The European Union, pursuant to the Treaty on European Union, shall ensure that each Member State acknowledges, in a written instrument between such Member State and the United States of America, the application, in the manner set forth in this Article, of its bilateral extradition treaty in force with the United States of America.

(b) The European Union, pursuant to the Treaty on European Union, shall ensure that new Member States acceding to the European Union after the entry into force of this Agreement and having bilateral extradition treaties with the United States of America, take the measures referred to in subparagraph (a).

(c) The Contracting Parties shall endeavour to complete the process described in subparagraph (b) prior to the scheduled accession of a new Member State, or as soon as possible thereafter. The European Union shall notify the United States of America of the date of accession of new Member States.

3. If the process described in paragraph 2(b) is not completed by the date of accession, the provisions of this Agreement shall apply in the relations between that new Member State and the United States of America as from the date on which they have notified each other and the European Union of the completion of their internal procedures for that purpose.

Article 4

Extraditable offences

1. An offence shall be an extraditable offence if it is punishable under the laws of the requesting and requested States by deprivation of liberty for a maximum period of more than one year or by a more severe penalty. An offence shall also be an extraditable offence if it consists of an attempt or conspiracy to commit, or participation in the commission of, an extraditable offence. Where the request is for enforcement of the sentence of a person convicted of an extraditable offence, the deprivation of liberty remaining to be served must be at least four months.

2. If extradition is granted for an extraditable offence, it shall also be granted for any other offence specified in the request if the latter offence is punishable by one year’s deprivation of liberty or less...