Number 30 of 2006

INTERNATIONAL CRIMINAL COURT ACT 2006

ARRANGEMENT OF SECTIONS

PART 1

Preliminary and General

Section

1 . Short title.

2 . Interpretation (general).

3 . Interpretation by courts of Act and Statute.

4 . Requests by International Criminal Court.

5 . Expenses.

PART 2

Domestic Jurisdiction in ICC Offences

6 . Interpretation ( Part 2 ).

7 . Genocide, crimes against humanity and war crimes.

8 . Offences ancillary to genocide, crimes against humanity and war crimes.

9 . Proceedings for ICC offence.

10 . Penalty for ICC offence.

11 . Offences against administration of justice.

12 . Extra-territorial jurisdiction.

13 . Applicable law.

14 . Protection of victims and witnesses.

PART 3

Requests by International Criminal Court for Arrest and Surrender of Persons

15 . Interpretation ( Part 3 ).

16 . Effect of release under this Part.

17 . Request for arrest and surrender.

18 . Conflicting requests.

19 . Certificate by Minister of making of request.

20 . Issue of arrest warrant.

21 . Request for provisional arrest.

22 . Issue of provisional arrest warrant.

23 . Execution of arrest warrants.

24 . Proceedings after provisional arrest.

25 . Surrender order.

26 . Adjournment and remand.

27 . Time lapse before surrender.

28 . Removal to hospital or other place.

29 . Consent to surrender.

30 . Surrender.

31 . Postponement of surrender.

32 . Release by order of Minister.

33 . Release by order of High Court.

34 . Release not a bar to subsequent arrest or surrender.

35 . Imprisoned or detained persons whose surrender requested.

36 . Rule of specialty.

PART 4

Requests to Freeze Assets and Enforce Orders of International Criminal Court

37 . Interpretation ( Part 4 ).

38 . Freezing orders.

39 . Registration of freezing orders.

40 . Enforcement of ICC orders.

41 . Realisation of property.

42 . Exercise of powers by High Court or receiver.

43 . Receivers: supplementary provision.

44 . Bankruptcy of defendant, etc.

45 . Property dealt with by Official Assignee.

46 . Winding up of company holding realisable property.

47 . Interest on sums unpaid under enforcement orders.

48 . Currency of payments under enforcement orders.

49 . Application of proceeds of realisation.

PART 5

Other Requests

50 . Identification evidence.

51 . Locating persons and identifying or locating property, etc.

52 . Taking of evidence.

53 . Questioning.

54 . Service of documents.

55 . Temporary transfer of prisoner.

56 . Transit.

57 . Act not to limit provision of other assistance.

PART 6

Miscellaneous

58 . Sittings in State of International Criminal Court.

59 . Investigations in State by Prosecutor.

60 . Immunities and privileges relating to International Criminal Court.

61 . State or diplomatic immunity, etc.

62 . Requests to International Criminal Court for assistance.

63 . Evidence in proceedings.

64 . Regulations.

65 . Amendment of International War Crimes Tribunals Act 1998.

66 . Consequential amendments.

SCHEDULE 1

Statute of the International Criminal Court, done at Rome on 17 July 1998

SCHEDULE 2

Agreement on the Privileges and Immunities of the International Criminal Court

SCHEDULE 3

Consequential Amendments

SCHEDULE 4

Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of the United Nations on 9 December 1948

Acts Referred to

Number 30 of 2006

INTERNATIONAL CRIMINAL COURT ACT 2006

AN ACT TO PROVIDE FOR THE PUNISHMENT BY COURTS IN THE STATE AND BY COURTS-MARTIAL OF GENOCIDE, CRIMES AGAINST HUMANITY, WAR CRIMES AND OTHER OFFENCES WITHIN THE JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, WHICH WAS ESTABLISHED UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, DONE AT ROME ON 17 JULY 1998; TO ENABLE EFFECT TO BE GIVEN TO REQUESTS BY THAT COURT FOR ASSISTANCE IN THE INVESTIGATION OR PROSECUTION OF THOSE OFFENCES, INCLUDING REQUESTS TO ARREST AND SURRENDER PERSONS, TO FREEZE ASSETS AND TO ENFORCE ANY FINES OR FORFEITURES IMPOSED BY IT; TO MAKE PROVISION IN RELATION TO ANY SITTINGS OF THE COURT THAT MAY BE HELD IN THE STATE; AND TO PROVIDE FOR RELATED MATTERS.

[31st October, 2006]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1

Preliminary and General

Short title.

1.— This Act may be cited as the International Criminal Court Act 2006.

Interpretation (general).

2.— (1) In this Act, unless the context otherwise requires—

“ act ”, except where the context otherwise requires, includes omission, and references to conduct are to be construed accordingly;

“ Act of 1994 ” means the Criminal Justice Act 1994;

“ ancillary offence ” shall be construed in accordance with section 8 (1) ;

“ another state ” means a state other than the State;

“ Article ” means an Article of the Statute;

“ document ” includes—

(a) a map, plan, graph, drawing, photograph, photographic negative, record, book, periodical or pamphlet, and

(b) where appropriate, any tape, computer disk or other thing on which data capable of conversion into any permanent legible form is stored;

“ Elements of Crimes ” means Elements of Crimes (including any amendments thereto) adopted under Article 9;

“ Extradition Acts ” means the Extradition Acts 1965 to 2001;

“ functions ” includes powers and duties, and references to the performance of functions include, as respects powers and duties, references to the exercise of the powers and the performance of the duties;

“ ICC offence ” has the meaning given to it by section 9 (1) ; “ Minister ” means the Minister for Justice, Equality and Law Reform;

“ Pre-Trial Chamber ” means the Pre-Trial Chamber of the International Criminal Court;

“ prison ” means a place of custody administered by or on behalf of the Minister and includes—

(a) Saint Patrick’s Institution,

(b) a place provided under section 2 of the Prisons Act 1970,

(c) a place specified under section 3 of the Prisons Act 1972, and

(d) a remand centre designated under section 88 of the Children Act 2001;

“ property ” includes—

(a) money and all other property, real or personal, movable or immovable,

(b) choses in action and any other intangible or incorporeal property, and

(c) proceeds of the disposal of property;

“ Prosecutor ” means the Prosecutor of the International Criminal Court;

“ remand institution ” means an institution (other than a prison) within the meaning of the Criminal Justice Act 1960;

“ Rules of Procedure and Evidence ” means the Rules of Procedure and Evidence (including any amendments thereto) adopted under Article 51;

“ Statute ” means the Rome Statute of the International Criminal Court, done at Rome on 17 July 1998;

“ surrender order ” means an order of the High Court under section 25 for the surrender of a person.

(2) Nothing in this Act (except in so far as may be required by section 18 ) prevents the surrender of a person in accordance with the Extradition Acts or the European Arrest Warrant Act 2003.

(3) In this Act, unless the context otherwise requires—

(a) a reference to a section or Part is to a section or Part of this Act,

(b) a reference to a subsection, paragraph or subparagraph is to a subsection, paragraph or subparagraph of the provision in which the reference occurs,

(c) a reference to a Schedule is to a Schedule to this Act, and

(d) a reference to any enactment is a reference to that enactment as amended or adapted by or under any subsequent enactment.

Interpretation by courts of Act and Statute.

3.— (1) In interpreting the Act and Statute a court, where necessary, may—

(a) take account of the Rules of Procedure and Evidence, the Elements of Crimes and any relevant judgment or decision of the International Criminal Court,

(b) take account of any other relevant judgment, and

(c) consider the travaux préparatoires relating to the Statute and the published views of commentators on its text and give them such weight as may appear to the court to be appropriate in the circumstances.

(2) For the purposes of its application in relation to the State references in the Statute to a State Party, requested state or custodial state shall be construed, where the context so permits—

(a) as references to the State, or

(b) where the provisions in which the references occur require, or may require, the performance on behalf of the State of executive functions, as references to the Minister.

(3) Judicial notice shall be taken of the Statute.

(4) The text of the Statute in the English language is set out in Schedule 1 for convenience of reference.

(5) In this section “ court ” means a court in the State and includes a court-martial, whether held within or outside the State.

Requests by International Criminal Court.

4.— (1) In relation to any request by the International Criminal Court for the arrest and surrender, or the provisional arrest, of a person or for assistance under Article 93 (other forms of co-operation) the Minister may presume, unless he or she has any information to the contrary, that the request—

(a) has been duly made and transmitted in accordance with the relevant provisions of the Statute, and

(b) is being made in connection with the investigation or prosecution of offences within the jurisdiction of the Court.

(2) (a) Where a request by the Court involves the disclosure of information and such a disclosure would in the Minister's opinion be prejudicial to the interests of the security of the State, he or she shall—

(i) in accordance with Article 93.5, consider whether the information can be provided subject to specified conditions or whether the assistance concerned can be provided at a later date or in an alternative manner, and

(ii) if of opinion that the information cannot be so provided, act in conjunction with the Prosecutor, the defendant's legal advisers or the Pre-Trial Chamber or Trial Chamber of the Court to seek to resolve the issue in accordance with paragraph 5 of Article 72.

(b) Where the Minister becomes aware that such information is, or is likely to be, disclosed in an investigation or proceedings instituted by the Court, he or she shall, in accordance with paragraph 4 of that Article, intervene in order to obtain a resolution of the issue.

(c) If—

(i) the issue remains unresolved, and

(ii) the Minister is of opinion that there are no means by which, or conditions under which, the information could be disclosed without prejudicing the interests of the security of the State,

the Minister shall—

(I) notify the Prosecutor or the Court of that opinion and of the specific reasons for it unless to do so would itself necessarily result in prejudicing those interests, and

(II) participate in any consultations requested by the Court under Article 72.7(a)(i) in relation to the issue.

(d) For the purposes of this subsection Article 72 and paragraphs 4 and 5 of Article 93 shall have effect with any necessary modifications.

(e) In any proceedings a document purporting to be signed by the Minister and to certify that in his or her opinion—

(i) disclosure of information in compliance with a request from the Court, or

(ii) as the case may be, any further such disclosure,

would be prejudicial to the interests of the security of the State shall be admissible in evidence, without further proof, of that opinion.

(f) In this subsection references to the disclosure of information include references to the provision of documents, and cognate words shall be construed accordingly.

(3) Where compliance with a request by the Court is prohibited under the law of the State on the basis of a fundamental legal principle of general application, the Minister shall, in accordance with Article 93.3, consult with the Court to try to resolve the matter.

(4) If a request for assistance is refused, the Minister shall inform the Court or the Prosecutor of the reasons for the refusal.

(5) In accordance with Article 93.8 the Minister—

(a) may, when necessary, transmit information or documents to the Prosecutor on a confidential basis for use by him or her solely for the purpose of generating new evidence, and

(b) may subsequently consent to their disclosure.

(6) Any request mentioned in subsection (1) and any supporting or related documents shall constitute official information within the meaning of the Official Secrets Act 1963.

(7) Competing requests for assistance from the Court and from another state pursuant to an international obligation of the State, other than requests for surrender or extradition, shall be dealt with by the Minister in accordance with Article 93.9.

Expenses.

5.— The expenses incurred in the administration of this Act (including the contribution of the State to the funds of the International Criminal Court under Article 115 but excluding costs to be borne by the Court under Article 100) shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART 2

Domestic Jurisdiction in ICC Offences

Interpretation ( Part 2 ).

6.— (1) In this Part, unless the context otherwise requires—

“ court ” means, as appropriate, the Central Criminal Court, Special Criminal Court or, in relation to persons subject to military law, a court-martial, whether held inside or outside the State;

“ crime against humanity ” means any of the acts specified in Article 7;

“ genocide ” means any of the acts specified in Article 6;

“ war crime ” means any of the acts specified in Article 8.2 (except subparagraph (b)(xx)).

(2) In Articles 7 and 8 references to murder shall be construed as references to the killing of a person in such circumstances as would, if committed in the State, constitute murder.

Genocide, crimes against humanity and war crimes.

7.— (1) Any person who commits genocide, a crime against humanity or a war crime is guilty of an offence.

(2) The Genocide Act 1973 (the “1973 Act”) is repealed.

(3) The repeal effected by subsection (2) is without prejudice to the obligations of the State under the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the General Assembly of the United Nations on 9 December 1948, the text of which is set out in Schedule 4.

(4) Notwithstanding subsection (2) , proceedings under the 1973 Act may be taken after the passing of this Act for an offence under that Act committed before such passing.

Offences ancillary to genocide, crimes against humanity and war crimes.

8.— (1) Any person who does any act specified in paragraph 3 of Article 25 (crimes ancillary to genocide, crimes against humanity and war crimes) is guilty of an offence (in this Act referred to as an “ancillary offence”).

(2) Subsection (1) is without prejudice to section 7 (penalties for assisting offenders) of the Criminal Law Act 1997.

Proceedings for ICC offence.

9.— (1) In this Act “ ICC offence ” means genocide, a crime against humanity, a war crime or an ancillary offence.

(2) No further proceedings (other than a remand in custody or on bail) shall be taken in relation to a person charged with an ICC offence except by or with the consent of the Director of Public Prosecutions.

(3) Proceedings for an ICC offence committed outside the State may be taken in any place in the State, and the offence may for all incidental purposes be treated as having been committed in that place.

(4) Without prejudice to section 7 (4) , proceedings may not be taken in respect of conduct constituting an ICC offence if the conduct occurred before the passing of this Act.

Penalty for ICC offence.

10.— (1) A person convicted of an ICC offence is liable—

(a) to imprisonment for life if—

(i) the offence involves murder, or

(ii) a term of life imprisonment would be justified by the extreme gravity of the offence and the individual circumstances of the convicted person,

(b) in any other case, to imprisonment for a term not exceeding 30 years,

(c) to a fine in accordance with the criteria provided for in the Rules of Procedure and Evidence, and

(d) if the person has obtained property as a result of or in connection with the offence, to having a confiscation order made in respect of him or her under section 9 of the Act of 1994.

(2) In determining the penalty to be imposed the court shall take account of the provisions of Article 78 (determination of the sentence).

(3) Sums recovered under a confiscation order made in relation to an ICC offence shall, if the court so directs, be applied wholly or partly in reparation to victims of the conduct constituting the offence.

Offences against administration of justice.

11.— (1) It shall be an offence for a person to do intentionally any of the acts mentioned in paragraph 1 of Article 70 (offences against the administration of justice) in relation to proceedings—

(a) before the International Criminal Court, or

(b) before a court for an ICC offence,

and for the purposes of the proceedings mentioned in paragraph (b) references to the International Criminal Court in paragraph 1 and the first sentence of paragraph 2 of that Article shall be construed as references to a court.

(2) (a) A person convicted of an offence under subsection (1) (b) is liable—

(i) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

(b) Subject to paragraph (a) (i) , the amount of any fine to be imposed shall be determined having regard to the Rules of Procedure and Evidence.

(3) No further proceedings (other than a remand in custody or on bail) shall be taken in relation to a person charged with an offence under this section except by or with the consent of the Director of Public Prosecutions.

Extra-territorial jurisdiction.

12.— (1) An Irish national who does an act outside the State that, if done within it, would constitute an ICC offence or an offence under section 11 (1) is guilty of that offence and liable to the penalty provided for it.

(2) Subsection (1) also applies in relation to a person of any other nationality who does an act outside the State that, if done within it, would constitute both—

(a) a war crime under subparagraph (a) (grave breaches of the Geneva Conventions) or (b) (other specified serious violations of the laws and customs applicable in international armed conflict) of Article 8.2, and

(b) an offence under section 3 (grave breaches of the Geneva Conventions and Protocol I thereto) of the Geneva Conventions Act 1962.

(3) An act which—

(a) is done outside the State on board an Irish ship or Irish controlled aircraft, and

(b) if done within it, would constitute an ICC offence,

is deemed for the purposes of this Act to have been done within the State.

(4) The reference in subsection (2) (b) to section 3 of the Geneva Conventions Act 1962 is to that section as amended by section 3 of the Geneva Conventions (Amendment) Act 1998 and by paragraph 2 of Schedule 3.

(5) In this section—

“ Irish controlled aircraft ” has the meaning given to it by section 1(1) of the Air Navigation and Transport Act 1973;

“ Irish ship ” has the meaning given to it by section 9 of the Mercantile Marine Act 1955.

Applicable law.

13.— (1) The law (including common law) of the State shall, subject to subsection (2) , apply in determining whether a person has committed an offence under this Part.

(2) Article 27 (application of Statute to all persons without any distinction based on official capacity) and paragraphs (a) and (b) of Article 28 (responsibility of commanders and other superiors for crimes within the jurisdiction of the International Criminal Court) shall apply, as appropriate and with any necessary modifications, in relation to any such determination.

(3) This section is without prejudice to section 3 (1) .

Protection of victims and witnesses.

14.— (1) In proceedings for an offence under this Part—

(a) the measures specified in paragraphs 1 and 5 of Article 68 (protection of victims and witnesses and their participation in proceedings) shall, where appropriate, be taken during the investigation and prosecution of the offence, and

(b) the court concerned shall, where appropriate, take the measures specified in paragraphs 1 to 3 and 5 of that Article.

(2) Any such measures or the manner in which they are taken shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

(3) An application may be made in any such proceedings by or on behalf of the Director of Public Prosecutions for necessary measures to be taken for the protection of any servants or agents of the State involved in the proceedings and for the protection of confidential or sensitive information; and the court may grant the application if satisfied that it is in the interests of justice to do so.

PART 3

Requests by International Criminal Court for Arrest and Surrender of Persons

Interpretation ( Part 3 ).

15.— In this Part—

“ appeal proceedings ” means proceedings relating to—

(a) a complaint under Article 40.4.2° of the Constitution (including any proceedings on appeal from a decision on the complaint), or

(b) an appeal on a point of law to the Supreme Court against a surrender order or an appeal to that Court against a refusal of such an order;

“ provisional arrest warrant ” means a warrant issued under section 22 (1) ;

“ state of enforcement ” means a state (other than the State) which is designated by the International Criminal Court under Article 103(1) from a list of states which have indicated to the Court their willingness to accept persons sentenced by it.

Effect of release under this Part.

16.— Where—

(a) a person whose surrender has been requested by the International Criminal Court for an offence within its jurisdiction is in custody under this Part, and

(b) the person is also in custody for another offence,

his or her release under this Part shall not affect his or her custody for that other offence.

Request for arrest and surrender.

17.— (1) A request by the International Criminal Court for the arrest and surrender of a person shall be communicated to the Minister in accordance with Articles 87, 89 and 91.

(2) The request shall be accompanied by—

(a) as accurate a description as possible of the person whose surrender is requested, together with any other information that will help to establish the person's identity and probable location,

(b) a brief statement of the facts of the case and their legal characterisation,

(c) the original or a certified copy of the warrant of arrest, and

(d) if the request relates to a person who has been convicted by the Court—

(i) the original or a certified copy of any previous warrant of arrest,

(ii) the original or a certified copy of the judgment of conviction,

(iii) information establishing that the person sought is the person referred to in the judgment, and

(iv) the original or a certified copy of any sentence imposed and, in the case of a sentence of imprisonment, a statement of any period already served and the period remaining to be served.

(3) If the information furnished by the Court is in the Minister's opinion insufficient, the Minister may request it to supply further information or documents.

(4) The Minister shall consult with the Court under Article 97 in relation to any difficulties that may impede or prevent the execution of a request.

(5) The Minister may act on a request or supporting document which otherwise complies with this section notwithstanding that it was received by him or her before the passing of this Act.

(6) An amended warrant of arrest shall be treated as if it were a new warrant, without prejudice to the validity of anything done under the old warrant.

Conflicting requests.

18.— (1) In this section “ surrender proceedings ” means proceedings before the High Court for the surrender of a person to another state following receipt of—

(a) a request under the Extradition Acts for his or her extradition to another state, or

(b) a European arrest warrant (within the meaning of the European Arrest Warrant Act 2003) in respect of the person.

(2) Where the Minister receives a request from the International Criminal Court for the arrest and surrender of a person under Article 89 and—

(a) surrender proceedings in respect of the person have been instituted but have not been determined, or

(b) the person is awaiting surrender to another state under the Extradition Acts or the European Arrest Warrant Act 2003,

then, pending a decision by the Minister in accordance with Article 90 on whether priority should be given to the request—

(i) the Minister shall notify the High Court of the request, and, on receipt of the notification, the Court may adjourn the proceedings for such period or periods as it thinks fit and remand the person in custody or, subject to section 26 (2) , on bail, or

(ii) as the case may be, the person shall not be so surrendered.

(3) If the Minister decides in accordance with Article 90 that priority should be given to the request from the International Criminal Court and—

(a) the surrender proceedings have been so adjourned, the Minister shall cause the High Court to be notified of his or her decision, and, on receipt of the notification, the Court may order that the proceedings be discontinued and that the person concerned be brought before it to be dealt with in accordance with section 25 , or

(b) the person is awaiting surrender to another state, the person shall not be so surrendered, and sections 19 , 20 , 23 and 25 shall have effect in relation to the case.

(4) If, having consulted the International Criminal Court, the Minister decides in accordance with Article 90 that priority should not be given to the Court’s request—

(a) the Minister shall cause the High Court to be notified accordingly, or

(b) if the person is awaiting surrender to another state, subsection (2) (ii) shall cease to have effect in relation to the person concerned.

(5) A discontinuance of surrender proceedings under subsection (3) (a) in respect of an offence is not a bar to instituting fresh such proceedings for it.

(6) This section has effect notwithstanding anything in the Extradition Acts and is without prejudice to section 30(3) of the European Arrest Warrant Act 2003.

Certificate by Minister of making of request.

19.— (1) On receiving a request from the International Criminal Court for the arrest and surrender of a person the Minister shall, subject to this Part, certify that the request has been duly made.

(2) The Minister—

(a) may postpone action on the request until—

(i) the Court has determined any challenge to the admissibility of the case or to its jurisdiction (whether or not the challenge is a challenge by the Minister under Article 19(2)(b) to the admissibility of the case on the ground that it is being, or has been, investigated), or

(ii) the completion of any consultation between the Minister and the Court under Article 97 in relation to any difficulties that may impede or prevent the execution of the request,

and

(b) may, where the person concerned is being investigated or proceeded against in relation to an offence that is not an ICC offence, postpone such action in accordance with Article 94.1.

(3) In deciding under subsection (2) (b) whether to postpone action on a request the Minister shall have regard to the seriousness of the offence referred to in that subsection.

(4) If the Minister decides under subsection (2) (b) not to postpone action on a request, any proceedings referred to in that subsection that are pending shall, on the application of the Director of Public Prosecutions, be withdrawn, with liberty to re-enter.

(5) The Minister, if he or she decides to grant a request for the surrender of a person who is being proceeded against or is serving a sentence for an offence that is not an ICC offence, shall consult the Court in accordance with Article 89.4.

(6) The Minister shall not take action on a request if informed by the Court that it has determined that the case is inadmissible or that it is not proceeding further with the request for any other reason.

(7) In subsection (2) (b) “proceedings” does not include proceedings against a person under the Extradition Acts or the European Arrest Warrant Act 2003.

Issue of arrest warrant.

20.— (1) On production to the High Court of—

(a) a certificate by the Minister under section 19 that a request has been duly made by the International Criminal Court for the arrest and surrender of a person, and

(b) copies of the request and of the accompanying documents and any other related documents,

the Court shall issue a warrant for the person's arrest, addressed to the Commissioner of the Garda Síochána.

(2) A document purporting to be—

(a) a certificate referred to in subsection (1) (a) , or

(b) a copy of any document referred to in subsection (1) (b) ,

is admissible, without further proof, as evidence of the matters mentioned in it.

(3) The Court shall cause the Minister to be notified forthwith of the issue of the warrant.

Request for provisional arrest.

21.— (1) This section applies where the Minister receives from the International Criminal Court a request, made in accordance with Article 92, for the provisional arrest of a person.

(2) If, where this section applies, it appears to the Minister that application should be made for a warrant for the person's provisional arrest, the Minister shall communicate the request to the Commissioner of the Garda Síochána, and the Commissioner shall cause such an application to be made to the High Court under section 22 .

Issue of provisional arrest warrant.

22.— (1) The High Court may issue a warrant (in this Part referred to as a “provisional arrest warrant”) for the arrest of a person on the sworn information of a member of the Garda Síochána not below the rank of inspector that he or she has reason to believe—

(a) that the International Criminal Court has made a request under Article 92 for the provisional arrest of the person on grounds of urgency,

(b) that the person is in, or on the way to, the State,

(c) that the person—

(i) is accused or suspected by that Court of having committed an ICC offence or an offence under section 11 (1) (a) , or

(ii) has been convicted by it of such an offence,

and

(d) that a request for the arrest and surrender of the person will be duly made.

(2) The Court shall cause the Minister to be informed forthwith of the issue of the warrant.

(3) Where, at any time before the execution of the warrant, it appears to the Minister that a request for the surrender of the person named in it will not be received from the International Criminal Court or that proceedings will not be instituted by it against the person, the Minister may by order cancel the warrant and shall forthwith cause the High Court to be notified accordingly.

(4) A provisional arrest warrant may be issued in respect of a person notwithstanding the previous issue or refusal of a warrant for the person's arrest under this Part.

Execution of arrest warrants.

23.— (1) A member of the Garda Síochána may execute a warrant issued under section 20 or 22 even if the warrant is not in the member's possession.

(2) The member executing the warrant shall show the warrant to the arrested person and give him or her a copy of it—

(a) at the time of the arrest, or

(b) if the warrant or copy is not then in the member's possession, within 24 hours after the arrest.

(3) For the purpose of arresting a person under the warrant the member may enter (by force, if necessary) and search any place where the person is or where the member, with reasonable cause, suspects the person to be.

(4) The arrested person shall be brought before the High Court as soon as possible and be provided, where necessary, with a competent interpreter.

(5) The Court shall order that legal aid be provided for the arrested person if it appears to it that the person's means are insufficient to enable him or her to obtain such aid.

(6) On the making of such an order the arrested person shall be entitled to free legal aid in the proceedings and for that purpose section 3 of the Criminal Justice (Legal Aid) Act 1962 shall apply, with the necessary modifications, in relation to the person as if he or she had been granted a legal aid (trial on indictment) certificate under that section.

Proceedings after provisional arrest.

24.— (1) Subject to subsection (2) , where—

(a) a person arrested under a provisional arrest warrant is brought before the High Court, and

(b) a certificate under section 19 in respect of the person is not produced to it,

the Court shall remand the person in custody or, subject to section 26 (2) , on bail until the certificate is produced.

(2) Where a certificate under section 19 is not produced to the Court within such period from the date of the provisional arrest as is specified for the time being in the Rules of Procedure and Evidence for the receipt by a requested state of a request for surrender, the person, if in custody, shall be released.

Surrender order.

25.— (1) (a) Subject to subsection (2) , on application by or on behalf of the Minister for the surrender of a person arrested under section 23 , the High Court may, if satisfied that the arrested person is the person named or described in the warrant of arrest and surrender issued by the International Criminal Court, make an order (in this Part referred to as a “surrender order”) for the surrender of the person either—

(i) into the custody of that Court, or

(ii) if that Court so directs in the case of a person convicted by it, into the custody of the state of enforcement,

in accordance with arrangements to be made by the Minister.

(b) Where the application relates to a person arrested under a provisional arrest warrant, copies of the request by the International Criminal Court for his or her surrender and of the accompanying documents and any other related documents, together with a certificate by the Minister under section 19 that the request has been duly made, shall be produced to the High Court.

(c) In accordance with paragraph 4, second sentence, of Article 59 the High Court may not consider whether the warrant of arrest was properly issued in accordance with paragraphs 1(a) and 1(b) of Article 58.

(2) (a) The High Court shall adjourn the proceedings pending the outcome of—

(i) any challenge before the International Criminal Court to the admissibility of a case on grounds referred to in Article 17 or 89(2) or to that Court's jurisdiction in the case, or

(ii) a challenge to admissibility made before the High Court on the basis of the principle of ne bis in idem, as provided for in Article 89(2),

and remand the arrested person in custody or, subject to section 26 (2) , on bail.

(b) The High Court shall cause the Minister to be informed of any challenge mentioned in paragraph (a) (ii) .

(c) On being so informed, the Minister shall consult the International Criminal Court and then inform the High Court either—

(i) that there is an existing ruling of the International Criminal Court in relation to the admissibility of the case, or

(ii) that that Court is considering the challenge.

(3) The High Court, whether or not it makes a surrender order, may, and on the application of the arrested person shall—

(a) determine—

(i) whether section 23 (2) was complied with in relation to the execution of the warrant of arrest, and

(ii) whether any other rights of the person in relation to the arrest have been respected,

(b) make a declaration to that effect, and

(c) notify the Minister accordingly,

and the Minister shall transmit a copy of the notification to the International Criminal Court.

(4) On making a surrender order the High Court shall—

(a) inform the arrested person that he or she will not be surrendered, except with his or her consent, before 15 days have elapsed from the date of the order,

(b) also inform the person of the provisions of Article 40.4.2° of the Constitution (which relates to the making of a complaint to the High Court by or on behalf of a person alleging that he or she is unlawfully detained), and

(c) cause a copy of the order to be sent forthwith to the Minister.

(5) A surrender order shall provide for the committal of the arrested person to a prison or, if the person is not more than 21 years of age, to a remand institution (within the meaning of the Criminal Justice Act 1960) while awaiting the surrender.

(6) An appeal shall lie to the Supreme Court against a surrender order only on a point of law.

(7) (a) If an appeal is to be brought against a refusal of the High Court to make a surrender order and the Court is so informed without delay, the Court shall remand the arrested person in custody or, subject to section 26 (2) , on bail, until the appeal has been finally determined.

(b) If not so informed, the Court shall order that the arrested person be released.

(8) Sections 10 and 11 (transfer and lawful custody of remanded persons) of the Criminal Justice Act 1960 apply to a person committed or remanded to a remand institution under this section.

Adjournment and remand.

26.— (1) In relation to a person who is before it under this Part the High Court may, subject to subsection (2) , exercise its powers of adjournment and remand, including, but not limited to, the powers it has in that respect in relation to a person sent forward to the Central Criminal Court for trial.

(2) (a) The High Court—

(i) shall cause any application for bail by such a person brought before it to be notified to the Pre-Trial Chamber and the Minister, and

(ii) shall, in reaching a decision on the application—

(I) have regard to the principles set out in paragraph 4, first sentence, of Article 59, and

(II) give full consideration to any recommendations made by the Chamber in relation to the application.

(b) If bail is granted, the Minister shall provide any periodic reports requested by the Chamber under Article 59.6.

(c) Bail may not be granted under this subsection to a person who is serving a sentence of imprisonment or detention.

Time lapse before surrender.

27.— Subject to section 29 , a person who has been committed under a surrender order shall not be surrendered to the International Criminal Court before—

(a) 15 days have elapsed since the date of the order, or

(b) proceedings (including any appeal proceedings) in connection with the request for arrest and surrender have been finally determined,

whichever is the later.

Removal to hospital or other place.

28.— (1) The Minister may order that a person committed under a surrender order be removed to a hospital or other place if of opinion that it is necessary to do so in the interests of the person's health.

(2) A person so removed shall continue to be in lawful custody while in the hospital or other place.

Consent to surrender.

29.— (1) A person arrested in accordance with a warrant issued under section 20 or 22 may consent to be surrendered to the custody of the International Criminal Court or, in the case of a person convicted by it, of the state of enforcement.

(2) The person shall give notice of intention to consent to surrender—

(a) if in custody, to the prison governor, member of the Garda Síochána or other person in whose custody the person is, and

(b) if on bail, to any member of the Garda Síochána.

(3) The consent must be given and recorded before the High Court and be given voluntarily and in full awareness of the consequences.

(4) Where, by reason of a physical or mental condition, it is inappropriate for the person to consent to being surrendered, the consent may be given by a person who is deemed appropriate for that purpose by the High Court.

(5) On the recording of consent to surrender the High Court shall—

(a) if a surrender order has not been made in relation to the person, make a surrender order, and

(b) if such an order has been made, order that the person be returned to custody to await his or her surrender.

(6) (a) A person who has consented to surrender in accordance with this section may, at any time up to the making of an order by the Minister under section 30 , withdraw the consent.

(b) On such withdrawal the person—

(i) if the surrender order was made after the consent was given, shall be brought before the High Court and be dealt with by that Court as if he or she had not so consented, or

(ii) in any other case, shall await surrender in accordance with this Part.

(7) The person who receives notice of intention to consent to surrender or is informed of the withdrawal of the consent shall forthwith notify the Minister accordingly.

Surrender.

30.— (1) Subject to this Part, the Minister may by order direct that a person who has been committed under a surrender order shall be surrendered to the custody of another person who in the Minister's opinion has been duly authorised in that behalf by the International Criminal Court or the state of enforcement, as the case may be, and the person shall be surrendered accordingly.

(2) The authorised person shall receive, hold in custody and convey out of the State the person so surrendered.

(3) A person who escapes from the custody of the authorised person shall be liable to be retaken in the same manner as any person who escapes from lawful custody.

Postponement of surrender.

31.— (1) The Minister may postpone the making of an order under section 30 —

(a) until the International Criminal Court has determined any challenge to the admissibility of the case or to its jurisdiction, or

(b) in consultation with the Court, where the person concerned is being investigated or proceeded against in relation to an offence that is not an ICC offence, until the conclusion or discontinuance of the investigation or proceedings.

(2) If the Minister decides under subsection (1) (b) not to postpone the making of the order, any proceedings referred to in that subsection that are pending shall, on the application of the Director of Public Prosecutions, be withdrawn, with liberty to re-enter.

(3) In deciding whether to postpone surrender under subsection (1) (b) the Minister shall have regard to the seriousness of the conduct constituting the offence referred to in that subsection.

(4) (a) This subsection applies on the expiration of a period of postponement mentioned in subsection (1) .

(b) The Minister—

(i) if the postponement arises under subsection (1) (a) and the Court has determined that the case is inadmissible or not within its jurisdiction, shall order that the person, if in custody, be released, or

(ii) in any other case, shall, subject to this Part, make an order under section 30 in respect of the person concerned.

(5) In subsection (1) (b) “proceedings” does not include proceedings against a person under the Extradition Acts or the European Arrest Warrant Act 2003.

Release by order of Minister.

32.— Without prejudice to sections 31 (4) (b) (i) and 35 (2) , the Minister may, after consultation with the International Criminal Court, order the release from custody of a person who has been committed under a surrender order if of opinion—

(a) that, in the light of information received after the making of the surrender order, the surrender is prohibited by this Act, or

(b) that the request for the surrender is not being proceeded with.

Release by order of High Court.

33.— (1) This section applies where a person awaiting surrender under this Part is not surrendered and conveyed out of the State within one month after—

(a) the making of the surrender order,

(b) the conclusion of any appeal proceedings, or

(c) the expiration of any period of postponement mentioned in section 31 (1) ,

whichever is the later.

(2) Where this section applies but subject to subsection (3) , the High Court may, on application by or on behalf of the person concerned and on notice to the Minister, order that the person be released from custody.

(3) If the Court is satisfied—

(a) that the person's state of health or other circumstances beyond the control of the Minister or the International Criminal Court or, as the case may be, the state of enforcement have prevented the person from being surrendered under this Part, and

(b) that it is likely that within a reasonable time those circumstances will no longer apply,

it may fix a period within which the person may be so surrendered, and the person shall be released if not surrendered within that period or any extension thereof which may be directed by the Court from time to time in accordance with this section.

(4) Subsection (2) is without prejudice to section 35 (2) .

Release not a bar to subsequent arrest or surrender.

34.— The cancellation under section 22 (3) of a warrant for the provisional arrest of a person or the release of a person under section 24 (2) , 32 or 33 (2) is not a bar to the person's arrest or surrender in accordance with any subsequent request from the International Criminal Court.

Imprisoned or detained persons whose surrender requested.

35.— (1) This section applies to a person who is subject to a surrender order and is also liable to serve, or is serving, a sentence of imprisonment or detention.

(2) A person to whom this section applies shall continue to be liable to serve, or continue to serve, the sentence.

(3) The surrender order may provide—

(a) for the person's return to the State in accordance with arrangements made by the Minister with the International Criminal Court or, as the case may be, with the state of enforcement, and

(b) for his or her transfer in custody from the state of enforcement to the place of imprisonment or detention.

(4) A period in custody arising from the request for surrender, except any period in the custody of the International Criminal Court or state of enforcement under a sentence of detention imposed by the Court, shall be reckoned as a period served under the sentence of imprisonment or detention.

(5) If a sentence of imprisonment or detention expires while the sentenced person is being detained by or on the order of the International Criminal Court, the Minister shall notify the Court accordingly.

Rule of specialty.

36.— (1) Subject to subsection (2) and in accordance with Article 101, a person surrendered to the International Criminal Court shall not be proceeded against, punished or detained, whether by the Court or an enforcement state, for any offence committed before his or her surrender other than that for which the surrender was requested.

(2) The Minister may, if so requested by the Court and having received such information or assurances from it as he or she considers necessary, waive the requirements of subsection (1) in a particular case.

PART 4

Requests to Freeze Assets and Enforce Orders of International Criminal Court

Interpretation ( Part 4 ).

37.— In this Part, unless the context otherwise requires—

“ Act of 1988 ” means the Bankruptcy Act 1988;

“ defendant ” means a person in relation to whom the Minister has received a request from the International Criminal Court for the freezing of property or the enforcement of an ICC order;

“ enforceable ICC order ” means an ICC order in relation to which an enforcement order has been made;

“ enforcement order ” means an order under section 40 (3) for the enforcement of an ICC order;

“ freezing order ” means an order under section 38 (4) ;

“ gift caught by this Part ” means a gift—

(a) which was made by the defendant in proceedings for an ICC offence at any time after the commission of the offence or, if there is more than one such offence, the earliest of the offences to which the proceedings for the time being relate, and

(b) which the court considers it appropriate in all the circumstances to take into account;

“ ICC order ” has the meaning given to it by section 40 (1) ;

“ realisable property ” means—

(a) any property held by a defendant, and

(b) any property held by a person to whom a defendant has directly or indirectly made a gift caught by this Part,

but does not include any property subject to—

(i) an order under section 4 or 4A of the Proceeds of Crime Act 1996,

(ii) forfeiture under an enforceable ICC order,

(iii) an order under section 30 (forfeiture orders) of the Misuse of Drugs Act 1977,

(iv) a confiscation order, or a forfeiture order, within the meaning of the Act of 1994, or

(v) a confiscation co-operation order or an external forfeiture order, as referred to in section 46 or 47 of that Act;

“ registered land ” means land whose owner is, or is deemed to be, registered under the Registration of Title Act 1964.

Freezing orders.

38.— (1) This section applies where the Minister receives a request from the International Criminal Court under Article 93.1(k) to freeze the property of a person, including any articles used in the commission of an ICC offence, for the purpose of its eventual forfeiture.

(2) Where this section applies, the Minister shall, subject to section 4 , send a copy of the request and any accompanying documents to the Commissioner of the Garda Síochána.

(3) (a) The Commissioner shall thereupon cause a member of the Garda Síochána not below the rank of inspector to apply to the High Court for an order under subsection (4) .

(b) If the applicant—

(i) believes that the person to whom the request relates owns any land (whether or not the applicant believes that the person owns other land), and

(ii) is aware of its location,

the applicant shall state in the application that he or she so believes and specify the location of the land.

(4) (a) On such an application the High Court may make an order (in this Part referred to as a “freezing order”) prohibiting any person from dealing with the property of the person to whom the request relates if the Court is satisfied—

(i) that this section applies in relation to the property, and

(ii) either—

(I) that the International Criminal Court has imposed a fine, or made a reparation or forfeiture order, in the proceedings concerned, or

(II) that there are reasonable grounds for believing that that Court may impose a fine, or make such an order, in those proceedings.

(b) For the purposes of paragraph (a) dealing with property held by any person includes—

(i) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt, or

(ii) removing the property from the State.

(c) A freezing order may be subject to such conditions and exceptions as may be specified in it, including the making of such provision as the Court may think fit for the living expenses and legal expenses of any person.

(d) In paragraph (a) (ii) (I) “proceedings” includes an investigation by the International Criminal Court of an ICC offence.

(e) If subsection (3) (b) applies, the freezing order shall include the statement mentioned in that subsection.

(5) In exercising its powers under this section the High Court shall pay due regard to the rights of any third parties.

(6) A freezing order may apply—

(a) to all realisable property held by a specified person, whether the property is described in the order or not, and

(b) to realisable property held by a specified person, being property transferred to him or her after the making of the order.

(7) A freezing order—

(a) may be made ex parte and otherwise than in public,

(b) may provide for service on, or the provision of notice to, persons affected by the order in such manner as the High Court may direct,

(c) may be discharged or varied in relation to any property, and

(d) shall be discharged on the application of the International Criminal Court or on the conclusion of the proceedings before that Court in relation to which the order was made.

(8) For the purposes of subsection (7) (d) , proceedings before the International Criminal Court have concluded—

(a) where the Court determines not to make an ICC order, on the date of the determination,

(b) where the Court makes such an order—

(i) on the date of the final determination of an application under section 40 for its enforcement, or

(ii) on the issue by the Minister of a certificate that a request is unlikely to be received from the International Criminal Court for the enforcement of the order.

(9) An application to discharge or vary a freezing order may be made by any person affected by it.

(10) Where the High Court has made a freezing order arising from a request related to the investigation of an ICC offence, it may discharge the order if the investigation is not completed within such time as it considers reasonable.

(11) Where the High Court has made a freezing order, the Court may at any time appoint a receiver—

(a) to take possession of any realisable property, and

(b) in accordance with the Court's directions, to manage or otherwise deal with it,

subject to such exceptions and conditions as may be specified by the Court and to provision being made for the expenses and remuneration of the receiver, and may require any person having possession or control of such property to deliver it to the receiver.

(12) Where the High Court has made a freezing order, a member of the Garda Síochána or an officer of customs and excise may, for the purpose of preventing any realisable property being removed from the State, seize the property.

(13) Property seized under subsection (12) shall be dealt with in accordance with the High Court's directions.

(14) Section 60 (voidance of dispositions designed to frustrate confiscation, etc.) of the Act of 1994 shall have effect as if the references to confiscation included references to a freezing order.

Registration of freezing orders.

39.— (1) (a) Where a freezing order is made in relation to land, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Registrar of Titles and Deeds a notice of the making of the order, together with a copy of the order.

(b) If it appears from the freezing order, or the Registrar is otherwise aware, that the land is registered land, the Registrar shall thereupon—

(i) cause an entry to be made in the register kept under the Registration of Title Act 1964 inhibiting, until the order is discharged, any dealing with any registered land or charge which appears to be affected by it, and

(ii) if the order is subsequently varied or discharged, cause the entry to be varied accordingly or cancelled, as the case may be.

(c) Where paragraph (b) does not apply, the Registrar shall thereupon cause the notice of the making, variation or discharge of the freezing order to be registered in the Registry of Deeds pursuant to the Registration of Deeds Act 1707.

(d) If and for as long as the offices of Registrar of Titles and the Registrar of Deeds are not held by the same person—

(i) the reference in paragraph (a) to the Registrar of Titles and Deeds shall be construed as a reference to the Registrar of Titles and the Registrar of Deeds,

(ii) the reference in paragraph (b) to the Registrar shall be construed as a reference to the Registrar of Titles, and

(iii) the reference in paragraph (c) to the Registrar shall be construed as a reference to the Registrar of Deeds.

(2) (a) Where a freezing order is made which affects an interest in a company or its property, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Registrar of Companies a notice of the making of the order, together with a copy of the order.

(b) On receipt of those documents the Registrar of Companies shall, if the company is a registered company, cause the notice to be entered in the Register of Companies and—

(i) if the company is an existing company, as defined in section 2(1) of the Companies Act 1963, send a copy of the notice to each director and the secretary of the company at the company's registered office,

(ii) in any other case, send a copy of the notice by post to the person resident in the State who has been authorised to accept, on behalf of the company concerned, service of process and any notices required to be served on it.

(c) In this subsection—

“ Register of Companies ” means the Register of Companies maintained under the Companies Acts 1963 to 2005;

“ registered company ” means—

(i) a company formed and registered under those Acts,

(ii) an existing company, as defined in section 2(1) of the Companies Act 1963, or

(iii) a company registered under Part XI of that Act or the European Communities (Branch Disclosure) Regulations 1993 (S.I. No. 395 of 1993).

Enforcement of ICC orders.

40.— (1) This section applies where the Minister has received a request from the International Criminal Court for the enforcement of an order of the Court (in this Part referred to as an “ICC order”) imposing a fine or forfeiture or providing for reparation to, or in respect of, victims.

(2) (a) Where this section applies, the Minister shall, subject to section 4 , cause an application to be made to the High Court for enforcement of the ICC order.

(b) If the applicant—

(i) believes that the person against whom the order was made owns any land (whether or not the applicant believes that the person owns other land), and

(ii) is aware of its location,

the applicant shall state in the application that he or she so believes and specify the location of the land.

(3) (a) On such an application the High Court may, subject to subsection (4) , make an order (in this Part referred to as an “enforcement order”) for the enforcement of the ICC order.

(b) If subsection (2) (b) applies, the enforcement order shall include the statement referred to in that subsection.

(4) The High Court shall make an enforcement order only if—

(a) the ICC order, or

(b) the conviction in respect of which it was made,

is in force and not subject to further appeal and if—

(i) a reasonable opportunity has been given for persons holding an interest in any property concerned to make representations to the High Court, and

(ii) where the ICC order imposes a fine, its enforcement will not prejudice the rights of bona fide third parties.

(5) If the ICC order has been partly complied with, the High Court shall make an enforcement order only in relation to the part not complied with.

(6) Where the enforceable ICC order relates to the payment of a fine or other sum, the order shall be enforced in accordance with its terms as if it were an order of the High Court for the payment to the State of the sum payable under the ICC order or of any lesser sum remaining due under it.

(7) Where the enforceable ICC order relates to the forfeiture of property—

(a) the order shall operate to deprive the person to whom it relates of his or her rights, if any, in the property, and

(b) the order shall be enforced in accordance with its terms as if it were an order of the High Court for the forfeiture of the property.

(8) Nothing in subsection (6) or (7) authorises a person to be imprisoned.

(9) Subject to subsection (10) , if at any time after the making of the enforcement order it is reported to the High Court that any sum payable under the ICC order remains unpaid, the Court may, without prejudice to the validity of anything previously done under the order or to its future enforcement, order that the person to whom the ICC order relates be imprisoned for a period not exceeding that set out in the second column of the table to this section opposite the amount outstanding under the ICC order.

(10) An order under subsection (9) of this section shall not be made unless the person to whom the ICC order relates has been given a reasonable opportunity to make representations to the Court.

(11) Section 60 (voidance of dispositions designed to frustrate confiscation, etc.) of the Act of 1994 shall have effect as if the reference to forfeiture included a reference to an enforceable ICC order.

(12) Money or other property received under an enforceable ICC order shall, without prejudice to section 49 (1) , be dealt with in accordance with the directions of the International Criminal Court.

(13) Section 39 shall apply in relation to the registration of enforcement orders as it does in relation to the registration of freezing orders and shall have effect accordingly, with any necessary modifications.

Table

Realisation of property.

41.— (1) Where an enforcement order which is not subject to appeal has not been satisfied, the High Court may exercise the powers conferred by this section.

(2) Where subsection (1) applies, the Court may, in relation to any realisable property—

(a) appoint a person to be a receiver in respect of it,

(b) empower the receiver to take possession of it, subject to such conditions or exceptions as the Court may specify,

(c) order any person having possession or control of it to deliver it to the receiver,

(d) empower the receiver to realise it in such manner as the Court may direct,

(e) order any person holding an interest in it to make to the receiver such payment as the Court may direct in respect of any beneficial interest held in it by the defendant or, as the case may be, by the recipient of any gift caught by this Act, and

(f) on the payment being made, by order transfer, grant or extinguish any such beneficial interest.

(3) The Court shall not exercise the powers conferred by this section unless a reasonable opportunity has been given to persons holding any interest in the property concerned to make representations to it in relation to such exercise.

Exercise of powers by High Court or receiver.

42.— (1) In this section “powers” means the powers conferred on the High Court by section 38 (11) or 41 (2) or on a receiver appointed under either of those provisions.

(2) Subject to subsection (3) , the powers shall be exercised with a view to—

(a) securing that the property covered by an order under either of those provisions is available to satisfy any order of the International Criminal Court imposing a fine or forfeiture or providing for reparation to, or in respect of, victims,

(b) in the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part, realising no more than the value for the time being of the gift,

(c) allowing any person, other than the defendant or the recipient of any such gift, to retain or recover the value of any property held by him or her.

(3) In exercising the powers no account shall be taken of any obligations of the defendant or of the recipient of any such gift that conflict with the obligation to satisfy the freezing order or ICC order concerned.

Receivers: supplementary provision.

43.— A receiver who—

(a) takes any action in relation to property which is not realisable property, being an action which a receiver would be entitled to take if it were realisable property, and

(b) believes, and has reasonable grounds for believing, that he or she is entitled to take that action in relation to that property,

is not liable to any person in respect of any loss or damage resulting from the action except in so far as the loss or damage is caused by his or her negligence.

Bankruptcy of defendant, etc.

44.— (1) Where a person who holds realisable property is adjudicated bankrupt, the following property is excluded from the property of the bankrupt for the purposes of the Act of 1988:

(a) any property for the time being subject to—

(i) a freezing order made before the order of adjudication, or

(ii) an ICC order which is the subject of an enforcement order made before the order of adjudication;

(b) any property realised by virtue of section 38 (11) or 41 (2) and for the time being in the hands of a receiver.

(2) Where a person was adjudicated bankrupt before the passing of this Act, the powers of the High Court or a receiver under either of those sections shall not be exercised in relation to property of the bankrupt for the purposes of the Act of 1988.

(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift caught by this Part—

(a) any decision as to whether the gift is void shall not be made under section 57, 58 or 59 of the Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a freezing order or an enforceable ICC order, and

(b) any such decision made after the discharge of the freezing order or enforceable ICC order shall take into account any realisation under this Part of property held by the person to whom the gift was made.

(4) Where a petition in bankruptcy was presented, or an adjudication in bankruptcy made, before 1 January 1989, this section shall have effect with the modification that for references to the property of the bankrupt for the purposes of the Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy in force before that date.

Property dealt with by Official Assignee.

45.— (1) Without prejudice to the generality of any provision of any other enactment, where—

(a) the Official Assignee or a trustee appointed under Part V of the Act of 1988 seizes or disposes of any property in relation to which his or her functions are not exercisable because it is for the time being subject to a freezing order or an enforceable ICC order, and

(b) at the time of the seizure or disposal he or she believes, and has reasonable grounds for believing, that he or she is entitled (whether in pursuance of an order of a court or otherwise) to seize or dispose of the property,

he or she—

(i) is not liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his or her negligence, and

(ii) has a lien on the property, or the proceeds of its sale, for such of his or her expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his or her remuneration as may reasonably be assigned for his or her acting in connection with those proceedings.

(2) Where the Official Assignee or a trustee appointed as aforesaid—

(a) incurs expenses in respect of such property, and

(b) does not know, and does not have reasonable grounds for believing, that the property is for the time being subject to a freezing order or an enforceable ICC order,

he or she is entitled (whether or not he or she has seized or disposed of the property so as to have a lien) to payment of those expenses under section 49 .

Winding up of company holding realisable property.

46.— (1) In this section—

“ company ” means any company which may be wound up under the Companies Acts 1963 to 2005;

“ relevant time ” means—

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for its voluntary winding up,

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

(c) in any other case where such an order has been made, the time of the making of the order.

(2) Where realisable property is held by a company and an order for its winding up has been made or a resolution for its voluntary winding up has been passed by it, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—

(a) property for the time being subject to—

(i) a freezing order which was made before the relevant time, or

(ii) an ICC order which is the subject of an enforcement order made before that time,

(b) any property realised by virtue of such an order for the time being in the hands of a receiver appointed under this Part.

(3) Where an order for the winding up of a company has been made or such a resolution passed, the powers of the High Court or of such a receiver shall not be exercised in relation to any realisable property held by the company concerned—

(a) so as to inhibit the exercise of those powers for the purpose of distributing any property held by the company to the company's creditors, or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

Interest on sums unpaid under enforcement orders.

47.— (1) If any sum required to be paid by a person under an enforceable ICC order is not paid when it is required to be paid (whether forthwith on the making of the enforcement order concerned or at a time specified in the ICC order), the person shall be liable to pay interest on the sum for the period for which it remains unpaid.

(2) The amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from the person under the enforceable ICC order.

(3) The rate of interest shall be that for the time being applicable to a High Court civil judgment debt.

Currency of payments under enforcement orders.

48.— (1) An amount payable in the State under an enforceable ICC order shall be paid in euro.

(2) If the amount payable is expressed in the enforceable ICC order in a currency other than the euro, the payment shall be made on the basis of the exchange rate prevailing, on the date the enforcement order is made, between the euro and that currency.

(3) For the purposes of this section a certificate purporting to be signed by an officer of an authorised institution and to state the exchange rate prevailing on a specified date between a specified currency and the euro shall be admissible in any proceedings, without further proof, as evidence of the facts stated in the certificate.

(4) In this section, “ authorised institution ” means—

(a) a person who holds or has held a licence from the Central Bank and Financial Services Authority of Ireland under section 9 of the Central Bank Act 1971,

(b) a person referred to in section 7(4) of that Act, or

(c) a credit institution (within the meaning of the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992)) which has been authorised by that Authority to carry on the business of a credit institution in accordance with the supervisory enactments within the meaning of those Regulations.

Application of proceeds of realisation.

49.— (1) Money paid or recovered in respect of an enforceable ICC order (including any variation of such an order) may, to any extent necessary, be applied to meet expenses incurred in exercising any powers under this Act and the remuneration of any person employed for that purpose.

(2) Any such money shall, after payment of any such expenses or remuneration, be transferred, in accordance with the directions of the Minister, to the International Criminal Court or, if so ordered by that Court, directly to the Trust Fund provided for in Article 79 for the benefit of victims of crimes within its jurisdiction and of families of those victims.

PART 5

Other Requests

Identification evidence.

50.— (1) In this section—

“ bodily sample ” means any of the following:

(a) a sample of blood, hair, urine or saliva;

(b) a nail clipping or any material found under a nail;

(c) a swab from any part of the body;

(d) a footprint or a similar impression of any part of the body, including a dental impression;

“ consent ” means consent in writing and a reference to the consent of a person is a reference to—

(a) in the case of a person who has attained the age of 17 years, the consent of that person,

(b) in the case of a person who has not attained the age of 17 years but has attained the age of 14 years, the consent of that person and of his or her parent or guardian, and

(c) in the case of a person who has not attained the age of 14 years, the consent of his or her parent or guardian;

“ dentist ” means a person whose name is entered for the time being in the Register of Dentists maintained under the Dentists Act 1985;

“ doctor ” means a person whose name is entered for the time being in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act 1978;

“ identification evidence ” means a fingerprint, palm print, iris identification or photograph of, or bodily sample from, a person and any related records.

(2) Subject to section 4 , the Minister may, in pursuance of a request from the International Criminal Court under Article 93.1(a) for assistance in obtaining identification evidence, send the request to the Commissioner of the Garda Síochána for necessary action, if satisfied as to the matters mentioned in subsection (3) .

(3) The matters referred to in subsection (2) are—

(a) that any identification evidence provided will be used only for the investigation or prosecution of an ICC offence, and

(b) that the evidence—

(i) will be returned by the Court when no longer required for that purpose, unless the Minister indicates otherwise, or

(ii) will be dealt with in accordance with subsections (12) and (13) .

(4) If or in so far as the identification evidence requested is not in the possession of the Garda Síochána, the Commissioner shall instruct a member of the Garda Síochána (a “member”) to inform the person who is to provide the evidence—

(a) of the nature of the evidence,

(b) that it has been requested by the International Criminal Court in connection with the investigation or prosecution of an offence within its jurisdiction,

(c) that he or she is not obliged to provide the evidence, and

(d) that, if he or she does consent to provide it, it may be given in evidence in proceedings before the Court.

(5) If the person consents to provide the evidence, the member may take the evidence, or cause it to be taken, in compliance with the request and any requirements specified in the request in relation to its taking.

(6) If a person who is to provide the identification evidence is in custody—

(a) evidence may be taken under this section only if it relates to an offence other than that for which the person is in custody, and

(b) any evidence provided may be taken where the person is in custody or at another place.

(7) A bodily sample consisting of blood, pubic hair or a swab from a body orifice (other than the mouth) or a genital region may be taken under this section only by a doctor, and a dental impression may be so taken only by a dentist or doctor.

(8) If required by the Court, the Commissioner may arrange for a forensic test to be performed on a swab from a body orifice or a genital region.

(9) A sample of hair other than pubic hair may be taken under this section by cutting hairs or by plucking hairs singly with their roots and, where hairs are plucked, no more shall be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample for the purpose of forensic testing or comparison purposes.

(10) The following particulars shall be recorded by the member who takes identification evidence—

(a) the place, time and date at which it was taken,

(b) the result of any forensic test on the evidence,

(c) any other relevant particulars, including any specified by the Court,

and the record shall include a copy of the consent to the taking of the evidence.

(11) The Commissioner shall send to the Minister any identification evidence—

(a) in the possession of the Garda Síochána, or

(b) taken under subsection (5) , together with a copy of the record made under subsection (10) ,

for transmission to the Court.

(12) When transmitting the identification evidence and record to the Court the Minister shall, if subsection (3) (b) (i) does not apply and subject to subsection (13) , obtain an assurance that the evidence will be destroyed—

(a) if the person the subject of the investigation is not prosecuted, on the expiration of 12 months from the taking of the evidence, unless the failure to prosecute is due to the fact that the person has absconded or cannot be found, or

(b) if the person is prosecuted and is acquitted or discharged or the proceedings are discontinued, on the expiration of 21 days thereafter.

(13) The Minister may, at the request of the Court and having consulted the Director of Public Prosecutions, direct that any period mentioned in subsection (12) be extended for good reason.

Locating persons and identifying or locating property, etc.

51.— (1) If, in accordance with paragraphs (a), (g) and (i) of Article 93, the International Criminal Court requests assistance in relation to—

(a) locating persons or identifying or locating items of property,

(b) examining places or sites, including the exhumation and examination of grave sites, or

(c) providing records or other documents,

the Minister shall, subject to section 4 and subsection (2) , send the request to the Commissioner of the Garda Síochána, and the Commissioner shall arrange for compliance with it.

(2) The Minister shall not proceed in accordance with subsection (1) unless the Court undertakes—

(a) that any material that may be furnished in response to the request will not, without the Minister's consent, be used for any purpose other than that specified in the request, and

(b) that the material will be returned when no longer required for the purpose so specified (or any other purpose for which such consent has been obtained), unless the Minister indicates that its return is not required.

(3) The Commissioner shall report to the Minister on the outcome of the action taken by the Garda Síochána on the request, and the Minister shall transmit the report to the International Criminal Court.

(4) A member of the Garda Síochána shall not enter any premises or place in furtherance of the request without the consent of the occupier or a warrant or an order under this section authorising the entry.

(5) A judge of the District Court, on production by a member of the Garda Síochána of a copy of the request from the International Criminal Court and of any accompanying documents, may issue a warrant for the search of any premises or place if satisfied that there are reasonable grounds for believing—

(a) that entry to the premises or place is necessary for the purposes of complying with the request, and

(b) that the occupier thereof either—

(i) has not consented to the entry, or

(ii) is unlikely in the circumstances of the case to consent and that seeking consent might seriously prejudice compliance with the request.

(6) (a) This subsection applies where—

(i) the request relates to particular material or material of a particular description, and

(ii) it appears to the judge that there are reasonable grounds for believing—

(I) that the person named in the request possesses the material, and

(II) that he or she has not agreed to produce it or is unlikely in the circumstances of the case to do so and, in the latter case, that seeking consent might seriously prejudice compliance with the request.

(b) Where this subsection applies, the judge may order that the person named in the request shall, on production by a member of the Garda Síochána of a copy of the order—

(i) produce the material to the member for the member to take away, or

(ii) give the member access to the material within the period specified in the order.

(c) The order shall also provide that in default of compliance a member of the Garda Síochána shall search the premises concerned, and for that purpose the member may exercise the powers of search given by subsection (7) .

(d) The judge may vary or discharge the order.

(7) A warrant under subsection (5) shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other persons as may be necessary and on production of the warrant—

(a) to enter, within 7 days after the date of issue of the warrant, the premises or place named in the warrant, if necessary by the use of reasonable force,

(b) to search the premises or place and any person found there,

(c) where necessary to comply with the request and subject to subsection (12) , to excavate the place or any part of it,

(d) to examine, seize and retain any material or other thing found there, or in the possession of a person present there at the time of the search, which the member reasonably believes to be evidence of or relating to the commission of an ICC offence or whose retention is necessary to comply with the request, and

(e) to take such other steps as appear to the member to be necessary for preserving any such material or thing and preventing interference with it.

(8) Where material referred to in subsection (6) or (7) (d) consists of material in non-legible form, the warrant or order shall have effect as an order to produce the material, or give access to it, in a form which is legible and in which it can be taken away.

(9) A warrant or an order under this section—

(a) does not confer any right to examine, seize or retain documents—

(i) which in the Minister's opinion are prejudicial to the security of the State, or

(ii) which are subject to legal privilege,

or to have the documents produced or to be given access to them, and

(b) subject to paragraph (a) and subsection (10) , has effect notwithstanding any obligation as to secrecy or other restriction on the disclosure of information imposed under any enactment or rule of law.

(10) Where the Court requests disclosure of any information or document which has been supplied in confidence to a Government department or other authority by or on behalf of the government of another state, the Minister shall in accordance with Article 73 (third-party information or documents)—

(a) if that state is a party to the Statute, either consent to disclosure or undertake to resolve the issue of disclosure with the Court, subject to Article 72 (protection of national security information), or

(b) in any other case, inform the Court that it is unable to provide the document or information because of the obligation of confidentiality to that government.

(11) A person who obstructs or hinders a member of the Garda Síochána in the conduct of a search under this section is guilty of an offence and liable on summary conviction to a fine not exceeding €1,500 or imprisonment for a period of 6 months or both.

(12) (a) A body may not be exhumed by the Garda Síochána from a place named in the warrant without an authorisation to do so by order of the Minister, on notice to the coroner for the coroner's district concerned.

(b) On such an exhumation the coroner concerned shall have the like powers and duties as if the body had not been buried.

(13) Any material seized or obtained by virtue of this section may, subject to section 4 , be transmitted to the International Criminal Court in accordance with the directions of the Minister, given after consultation with it.

(14) Where material obtained in response to the request consists of a document, the original or a copy shall be transmitted to the International Criminal Court and, where the material consists of any other article, the article itself or a description, photograph or other representation of it shall be so transmitted.

(15) For the purposes of obtaining any information that is necessary to comply with a request from the International Criminal Court for assistance in locating persons, the Commissioner of the Garda Síochána, if of opinion that there is information as to the whereabouts or place of work of those persons in the possession or procurement of any person or body, may serve a notice on the person or body, requiring the person or body to provide in writing any such information within such time as may be specified in the notice.

(16) A person shall not be prevented from complying with such a notice by any enactment or rule of law preventing or restricting the disclosure of information (except information which in the Minister's opinion is prejudicial to the security of the State or which is subject to legal privilege).

(17) A person or body who or which does not, without reasonable excuse, comply with such a notice is guilty of an offence and liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.

Taking of evidence.

52.— (1) This section applies where the Minister receives from the International Criminal Court a request under Article 93.1(b) for—

(a) the taking of evidence, including testimony on oath, from persons other than persons suspected of having committed an ICC offence or persons being investigated or prosecuted by the Court, or

(b) the production of evidence, including expert opinions and reports necessary to the Court.

(2) Where this section applies, the Minister may, subject to section 4 —

(a) request the President of the District Court to nominate a judge of that Court to receive the evidence to which the request relates, and

(b) send the judge a copy of the request and of any accompanying or related documents.

(3) For the purposes of this section the nominated judge—

(a) shall have the powers of the District Court in criminal proceedings, including its powers—

(i) in relation to securing the attendance of witnesses, the production of documents or other articles, the taking of evidence on oath and, subject to subsection (4) , compelling witnesses to give evidence or produce documents or other things and the conduct generally of the proceedings for the taking of evidence, and

(ii) under any enactment or rule of law relating to the protection of witnesses against intimidation,

and

(b) may, if of opinion that it is necessary to protect—

(i) victims or witnesses or a person alleged to have committed an ICC offence, or

(ii) confidential or sensitive information,

direct that the proceedings before him or her, or any part of them, be held otherwise than in public.

(4) The judge shall inform a person in relation to whom this section applies of the rights referred to in paragraph 1 of Article 55 (rights of persons during an investigation).

(5) A person is not compelled to give in the proceedings any evidence which he or she could not be compelled to give in criminal proceedings in the State.

(6) Subject to subsection (5) , any person who is summoned to give evidence in the proceedings and who, without reasonable excuse, fails or refuses to answer any question or to comply with a requirement to produce any document or other thing is guilty of an offence and liable, on summary conviction, to a fine not exceeding €1,500 or imprisonment for a term not exceeding 6 months or both.

(7) If at any stage of the proceedings it appears that there are grounds for suspecting that the person has committed an ICC offence, the judge shall—

(a) inform the person of his or her rights under paragraph 2 of Article 55,

(b) where necessary, order that the person be provided a competent interpreter, and

(c) order that legal aid be provided for the person if it appears to the judge that the person's means are insufficient to enable him or her to obtain such aid.

(8) On the making of an order under subsection (7) (c) the person shall be entitled to free legal aid in the proceedings and for that purpose section 2 of the Criminal Justice (Legal Aid) Act 1962 shall apply, with the necessary modifications, in relation to the person as if he or she had been granted a legal aid (District Court) certificate under that section.

(9) The judge shall—

(a) send the record of any evidence received under this section to the Minister for transmission to the Court, and

(b) supply any certificate or other form of authentication in relation to the evidence as may be required for compliance with the request.

(10) In subsection (3) (a) (ii) “enactment” includes the Criminal Law (Rape) Acts 1981 and 1990, Criminal Evidence Act 1992, Criminal Justice Act 1999 and Children Act 2001.

Questioning.

53.— (1) This section applies where the Minister receives from the International Criminal Court a request under Article 93.1(c) for the questioning of any person who is suspected of having committed an ICC offence.

(2) Where this section applies, the Minister shall, subject to section 4 , send a copy of the request and any accompanying documents to the Commissioner of the Garda Síochána.

(3) The Commissioner shall arrange for the questioning of the person concerned by a member or members of the Garda Síochána in a Garda station.

(4) The person shall not be questioned in pursuance of the request unless he or she—

(a) consents to be questioned,

(b) has been informed of his or her rights, as referred to in Article 55,

(c) is provided, where necessary, with a competent interpreter and legal assistance in accordance with paragraph 2 of that Article.

(5) The consent may be given either—

(a) by the person concerned, or

(b) where, by reason of the person's physical or mental condition or his or her youth, it would be inappropriate for the person to act for himself or herself, by an appropriate person acting on the person’s behalf.

(6) The questioning shall be videorecorded and the recording, together with any form of authentication specified in the request, sent by the Commissioner to the Minister for transmission to the Court.

(7) The questioning shall, subject to this section, be conducted in accordance with any directions in that regard contained in the request.

Service of documents.

54.— (1) A request from the International Criminal Court for the service of documents, including summonses or other judicial documents, may, subject to section 4 , be sent by the Minister to the Commissioner of the Garda Síochána.

(2) The Commissioner shall—

(a) cause the documents to be served in accordance with the request by a member of the Garda Síochána and send proof of the service to the Minister for transmission to the Court, or

(b) if it is not possible to effect service, notify the Minister accordingly, stating the reason for the non-service.

(3) If the document to be served is a summons requiring attendance before the Court as a witness, it shall be accompanied by a notice stating—

(a) that the person on whom it is served may wish to seek advice as to the possible consequences of failure to comply with the summons,

(b) that under the Statute the person may not have the same rights and privileges in proceedings before the International Criminal Court as those of witnesses in criminal proceedings before a court in the State, and

(c) that, as the case may be, the Court—

(i) has provided an assurance to the person that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded his or her departure from the State, or

(ii) has authority under Article 93.2 to do so.

Temporary transfer of prisoner.

55.— (1) This section applies where the Minister receives a request from the International Criminal Court under Article 93.1(f) for the temporary transfer to it of a person in custody in the State for identification purposes or for obtaining testimony or other assistance.

(2) The Minister may, subject to section 4 , by order require such a person—

(a) to be taken in custody from the place in which he or she is detained to a place of departure from the State for delivery into the custody of a person authorised in that behalf by the Court, and

(b) on the person's return from the Court, to be taken back in custody to the place where he or she was detained unless, in the case of a person serving a sentence of imprisonment or detention, the sentence has expired.

(3) An order under this section—

(a) may be made—

(i) only with the person's consent, or

(ii) where it appears to the Minister inappropriate for the person to give consent by reason of the person's physical or mental condition or his or her youth, only if consent has been given by a person appearing to the Minister to be an appropriate person to do so,

and

(b) may make the transfer subject to conditions, including conditions relating to—

(i) the return of the person to the State, and

(ii) the person's custody while outside the State.

(4) A person (other than a member of the Garda Síochána) who has custody under subsection (2) of a person who is being taken from or to the place where he or she is or was detained is deemed for the purposes of that subsection to be such a member.

(5) If a person escapes from custody or is unlawfully at large while in transit in the State to or from the Court, he or she may be arrested without warrant by a member of the Garda Síochána or other person in whose custody he or she is and taken to any place to which he or she may be taken in accordance with an order under this section.

(6) (a) A person who is serving a sentence of imprisonment or detention or who is otherwise in custody shall continue to serve the sentence or to remain in custody while the person is in transit to or from the place of departure or is in the custody of the Court.

(b) The Minister shall inform the Court of the date of expiry of any such sentence.

(7) In this section “custody” includes custody in the State while awaiting trial or sentence or in default of paying a fine or other sum due under an order of a court.

Transit.

56.— (1) In this section “ transferee ” means a person who—

(a) is being surrendered to the International Criminal Court under Article 89 by another state,

(b) is in custody in another state and is being temporarily transferred to the Court under Article 93.7, or

(c) is being transferred in accordance with Part 10 of the Statute between the Court and another state, or between such other states, to serve a sentence of imprisonment imposed by the Court,

and in relation to whom a request for transit has been transmitted in accordance with Article 87.

(2) Subject to Article 89.3, the Minister shall authorise transit through the State of a transferee unless transit would, in the Minister's opinion, impede or delay the surrender.

(3) The Minister may—

(a) attach to the authorisation any conditions that he or she considers to be necessary, and

(b) arrange for the person, while in transit through the State, to be supervised by a member of the Garda Síochána.

(4) A transferee—

(a) shall, in accordance with Article 89.3(c), be detained on arrival in the State by a member of the Garda Síochána, and

(b) is deemed to be in the custody of that member or of any other such member for the time being supervising the transferee.

(5) In addition to the information required by Article 89.3(b) to be contained in a request by the Court for transit, the Minister may require the Court to supply such further information in relation to the circumstances of the surrender or transfer of the transferee concerned as the Minister considers to be necessary or expedient.

(6) (a) This subsection applies where a person referred to in any paragraph of subsection (1) is on board an aircraft which makes an unscheduled landing in the State.

(b) Where this subsection applies, the Minister may—

(i) require that the Court, in accordance with Article 89.3(e), submit a request for transit of the person concerned within the period of 96 hours commencing at the time of the unscheduled landing, and

(ii) inform the Court that, if the request is not received within that period, the person will be released.

(c) If the request is not received by the Minister before the end of the period mentioned in paragraph (b) (ii) , the Minister shall order the person's release.

(d) The release is not a bar to the arrest of the person on foot of a subsequent request from the Court for his or her surrender.

(e) Subsections (2) to (5) apply in relation to such a person as they apply in relation to a transferee.

Act not to limit provision of other assistance.

57.— Nothing in this Act shall be construed as preventing the provision to the International Criminal Court of assistance (other than assistance provided for under this Act) which is not prohibited by any other enactment or any rule of law.

PART 6

Miscellaneous

Sittings in State of International Criminal Court.

58.— (1) The International Criminal Court, while sitting in the State, may perform its functions under the Statute, and the provisions of the Statute in that behalf, including those relating to the Prosecutor and Part 8 thereof (appeal against or revision of decisions of a Trial Chamber of the Court), shall have effect accordingly.

(2) Orders made by the Court during a trial before it while so sitting (including orders for imprisonment or detention) shall have effect for all purposes as if they were orders made by the Central Criminal Court, and any relevant enactments and statutory instruments (including rules of court) shall have effect accordingly, with the necessary modifications.

(3) Any judgment, order or determination of the Court while so sitting is not subject to review by a court in the State.

Investigations in State by Prosecutor.

59.— (1) Subject to section 4 , the Prosecutor—

(a) may conduct investigations in the State—

(i) in accordance with Part 9 (International Cooperation and Judicial Assistance) of the Statute, or

(ii) in the circumstances mentioned in Article 57.3(d), if authorised by the Pre-Trial Chamber to do so,

and

(b) may directly execute in the State a request by the International Criminal Court for assistance, subject to compliance with paragraphs 4 and 5 of Article 99.

(2) Article 55 (rights of persons during an investigation) shall have effect in relation to such investigations.

Immunities and privileges relating to International Criminal Court.

60.— (1) The International Criminal Court, its judges, the Prosecutor, Deputy Prosecutor, Registrar, other members of its staff and those other persons mentioned in Article 48 and the Agreement on the Privileges and Immunities of the International Criminal Court shall, in the absence of any waiver, have the privileges, immunities and facilities necessary for the purposes specified in relation to them in that Article or in the Agreement.

(2) For the purposes of subsection (1) Article 48 and the Agreement shall have effect in relation to the State.

(3) Judicial notice shall be taken of the Agreement.

(4) For convenience of reference the text of the Agreement in the English language is set out in Schedule 2.

State or diplomatic immunity, etc.

61.— (1) In accordance with Article 27, any diplomatic immunity or state immunity attaching to a person by reason of a connection with a state party to the Statute is not a bar to proceedings under this Act in relation to the person.

(2) In this section—

“ diplomatic immunity ” means any privilege or immunity attaching to a person by or under section 5 of the Diplomatic Relations and Immunities Act 1967;

“ state immunity ” means any privilege or immunity attaching to a head of state or the prime minister, foreign minister or other representative, official or agent of a state—

(a) by virtue of any enactment (except section 5 or 6 of the said Act of 1967), or

(b) under any rule of law;

“ state party to the Statute ” includes a state which has accepted the jurisdiction of the International Criminal Court in accordance with Article 12 (preconditions to the exercise of jurisdiction).

Requests to International Criminal Court for assistance.

62.— (1) This section applies where an investigation is taking place, or a prosecution has been instituted, in the State in respect of an ICC offence or other serious offence.

(2) Where this section applies, the Minister may request the International Criminal Court, in accordance with Article 93.10, to provide assistance in connection with the investigation or prosecution.

(3) In this section “serious offence” means an offence for which a person of full capacity and not previously convicted may be punished by a term of imprisonment for a term of 5 years or by a more severe penalty.

Evidence in proceedings.

63.— (1) In any proceedings—

(a) a document purporting—

(i) to be a request by the International Criminal Court for the arrest and surrender, or provisional arrest, of a person, or for any other form of assistance, or

(ii) to be a document (other than a document mentioned in paragraph (b) ) supplied by the Court in relation to the request,

and to be signed by an officer of the Court is admissible, without further proof, as evidence of the request or document and of the matters mentioned in it,

(b) a document purporting—

(i) to be a copy of a warrant of arrest and surrender issued by the International Criminal Court or of a judgment or an order of the Court, and

(ii) to have been certified to be a true copy by an officer of the Court,

is admissible in evidence, without further proof, as a true copy of the warrant,

(c) a document purporting—

(i) to be a translation of a document mentioned in paragraph (a) or (b) , and

(ii) to be certified as correct by a person appearing to be competent to do so,

is admissible, without further proof, as evidence of the translation,

(d) a document purporting to be a copy of the Rules of Procedure and Evidence or of the Elements of Crimes is admissible, without further proof, as evidence of those Rules or Elements,

(e) a document purporting to be a document received from the Court by fax is presumed, until the contrary is shown, to be the original document sent by the Court,

(f) a document purporting to be a certificate by the Minister that a state is or is not a state party to the Statute is admissible, without further proof, as evidence of that matter, and

(g) a document purporting to be a certificate by the Minister under section 38 (8) (b) (ii) is admissible, without further proof, as evidence of the matters mentioned in it.

(2) In any proceedings against a person for an offence under this Act a certificate purporting to be signed by an officer of the Department of Foreign Affairs and stating that—

(a) a passport was issued by the Department to the person on a specified date, and

(b) to the best of the officer's knowledge and belief, the person has not ceased to be an Irish national,

is admissible, without further proof, as evidence that the person was an Irish national on the date he or she is alleged to have committed the offence.

(3) In any proceedings it shall be presumed, until the contrary is shown, that requests by the Court for the arrest and surrender, or the provisional arrest, of a person or for any assistance under Article 93—

(a) have been duly made and transmitted in accordance with the relevant provisions of the Statute, and

(b) are being made in connection with the investigation or prosecution of offences within the jurisdiction of the Court.

Regulations.

64.— (1) The Minister may from time to time make such regulations as appear to him or her to be necessary or expedient for giving full effect to this Act or any provision of it.

(2) Without prejudice to the generality of the foregoing, the regulations may provide for—

(a) matters ancillary to the execution of requests by the Court for assistance,

(b) (i) retaining, preserving or protecting documents or other articles seized or otherwise obtained in the course of complying with a request by the Court for assistance,

(ii) sending them to the Court, and

(iii) where appropriate, returning them to the person from whom they were seized or disposing of them otherwise,

(c) matters necessary or expedient for giving full effect to any investigations or sittings of the International Criminal Court in the State, and

(d) the text for the time being of the Rules of Procedure and Evidence and the Elements of Crimes.

(3) Regulations under this section shall be laid before each House of the Oireachtas as soon as may be after they are made and, if a resolution annulling the regulations is passed by either such House within the next 21 days on which that House has sat after they are laid before it, the regulations shall be annulled accordingly, but without prejudice to the validity of anything previously done under them.

Amendment of International War Crimes Tribunals Act 1998.

65.— Section 7 (request for extradition of same person) of the International War Crimes Tribunals Act 1998 is amended by the substitution of the following paragraph for paragraph (b):

“(b) proceedings relating to a European arrest warrant within the meaning of the European Arrest Warrant Act 2003, unless the High Court has made an order under section 15 or subsection (1) or (2) of section 16 of that Act for the person’s surrender,”.

Consequential amendments.

66.— Schedule 3 shall have effect in relation to the amendments of enactments provided for therein.

SCHEDULE 1

Statute of the International Criminal Court, done at Rome on 17 July 1998

Section 3 (4) .

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT*

PREAMBLE

The States Parties to this Statute,

Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time,

Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,

Recognizing that such grave crimes threaten the peace, security and well-being of the world,

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,

Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations,

Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State,

Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole,

Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions,

Resolved to guarantee lasting respect for and the enforcement of international justice,

Have agreed as follows

PART 1. ESTABLISHMENT OF THE COURT

Article 1

The Court

An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

Article 2

Relationship of the Court with the United Nations

The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.

Article 3

Seat of the Court

1. The seat of the Court shall be established at The Hague in the Netherlands (“the host State”).

2. The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf.

3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.

Article 4

Legal status and powers of the Court

1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.

2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW

Article 5

Crimes within the jurisdiction of the Court

1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

Article 6

Genocide

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Article 7

Crimes against humanity

1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1:

(a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

(c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

(d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;

(e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

(f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

(g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

(h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

(i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.

Article 8

War crimes

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, “war crimes” means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;

(xii) Declaring that no quarter will be given;

(xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;

(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;

(xvi) Pillaging a town or place, even when taken by assault;

(xvii) Employing poison or poisoned weapons;

(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(iii) Taking of hostages;

(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(d) Paragraph 2(c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(v) Pillaging a town or place, even when taken by assault;

(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

(ix) Killing or wounding treacherously a combatant adversary;

(x) Declaring that no quarter will be given;

(xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;

(f) Paragraph 2(e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

3. Nothing in paragraph 2(c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

Article 9

Elements of Crimes

1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.

2. Amendments to the Elements of Crimes may be proposed by:

(a) Any State Party;

(b) The judges acting by an absolute majority;

(c) The Prosecutor.

Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.

3. The Elements of Crimes and amendments thereto shall be consistent with this Statute.

Article 10

Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

Article 11

Jurisdiction ratione temporis

1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.

2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

Article 12

Preconditions to the exercise of jurisdiction

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Article 13

Exercise of jurisdiction

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

Article 14

Referral of a situation by a State Party

1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.

Article 15

Prosecutor

1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation.

6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.

Article 16

Deferral of investigation or prosecution

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

Article 17

Issues of admissibility

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.

2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Article 18

Preliminary rulings regarding admissibility

1. When a situation has been referred to the Court pursuant to article 13(a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13(c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States.

2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.

3. The Prosecutor's deferral to a State's investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State's unwillingness or inability genuinely to carry out the investigation.

4. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal may be heard on an expedited basis.

5. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay.

6. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available.

7. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances.

Article 19

Challenges to the jurisdiction of the Court or the admissibility of a case

1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17.

2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by:

(a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58;

(b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or

(c) A State from which acceptance of jurisdiction is required under article 12.

3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court.

4. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1(c).

5. A State referred to in paragraph 2(b) and (c) shall make a challenge at the earliest opportunity.

6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82.

7. If a challenge is made by a State referred to in paragraph 2(b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17.

8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court:

(a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6;

(b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and

(c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58.

9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge.

10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.

11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings. That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place.

Article 20

Ne bis in idem

1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.

2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.

3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

Article 21

Applicable law

1. The Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

(c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

2. The Court may apply principles and rules of law as interpreted in its previous decisions.

3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW

Article 22

Nullum crimen sine lege

1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.

2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.

3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

Article 23

Nulla poena sine lege

A person convicted by the Court may be punished only in accordance with this Statute.

Article 24

Non-retroactivity ratione personae

1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.

2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.

Article 25

Individual criminal responsibility

1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.

3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

Article 26

Exclusion of jurisdiction over persons under eighteen

The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.

Article 27

Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Article 28

Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Article 29

Non-applicability of statute of limitations

The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.

Article 30

Mental element

1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

2. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;

(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.

Article 31

Grounds for excluding criminal responsibility

1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct:

(a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;

(b) The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;

(c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;

(d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:

(i) Made by other persons; or

(ii) Constituted by other circumstances beyond that person's control.

2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it.

3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.

Article 32

Mistake of fact or mistake of law

1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.