Contents

Chapter 3
The role of treaties

Treaties and our Extradition Bill

3.4Under our proposals, a new Extradition Act should provide the basis for extradition. Our basic intention is to provide all countries a procedure for requesting extradition, regardless of their treaty relationship with New Zealand. Some of those treaties necessarily include terms that will be different from those in the procedure under the new Bill.57
3.5The current Act takes account of that possibility by providing in section 11 that, subject to some exceptions: “If there is an extradition treaty in force between New Zealand and an extradition country, the provisions of this Act must be construed to give effect to the treaty.”58
3.6This section, however, has created some confusion, especially when the procedures and terminologies employed in the treaties are no longer used domestically in New Zealand, and the relationship between those treaties and the grounds for refusal in the current Act have created difficulty.59 The effect can be that, rather than helping the extradition process, the treaties can create impediments. Furthermore, they do not expressly recognise human rights in the way that we currently expect our law to do so.
3.7In developing our recommendations we have been conscious of the need to create a space within our new Bill for the treaties to operate. We have, however, tried to do so in a way that does not diminish from the base of what requesting countries can expect and the basic protections required for people who are sought. The result is that we recommend a significant change in our new Bill; that is, the general interpretative provision of section 11 should not be replicated. Instead it should be replaced with a provision that specifically identifies the requirements, procedures and protections in the Bill that may be supplemented by the terms of the treaties.60

The straightforward aspects of the new relationship

3.8In the following chart we set out areas of likely interaction between New Zealand’s current extradition treaties and our proposed Extradition Bill, and explain how those provisions might be supplemented by treaty provisions. Notably, none of New Zealand’s existing bilateral extradition treaties are with approved countries. Therefore, this analysis relates only to the standard extradition procedure in the Bill.

Area Default position in Bill What the treaties say How treaties can supplement the default position Clause in our Bill
Existence of a “parallel” New Zealand or treaty offence There must normally be a parallel offence under New Zealand law. Treaties usually identify individual offences as extradition offences.61 Treaties should be able to expand the definition of “extradition offence” in the Act, but may not limit it.62 7(1)(a)(ii) and (b)(ii)
Convicted in absentia The Bill treats a person convicted in absentia as an accused person who has not been convicted. Some bilateral treaties state that persons convicted in absentia or sentenced to the similar concept of in contumacium should be treated as accused persons. Other treaties are silent on the issue. There should be no special ability for the in absentia prohibition to be altered in future treaties.63 6
Necessary documents for issuing provisional arrest warrant No documents are required but the Judge must be satisfied that:
(a) a warrant for arrest has been issued in the requesting country;
(b) the person is in New Zealand or on their way there; and
(c) it is necessary to issue the warrant urgently.
The modern treaties require:
(a) a description of the person and the offence or sentence;
(b) a statement regarding the existence of a warrant/judgment; and
(c) an indication of the country’s intention to make an extradition request.
The Imperial treaties tend to refer generally to “such information or evidence as would justify arrest in the requesting country”.
Any express reference to treaty requirements in the Bill is unnecessary.64 71
Speciality and prohibition on return to third countries Most extradition requests65 must be accompanied by an assurance as to speciality and prohibition on extradition to third countries. The treaties all contain undertakings as to speciality.

Modern treaties also refer to the prohibition on return to third countries.
The speciality requirement is expressly maintained in our Bill, independent of treaties. 23 and 24

Area Default position in Bill What the treaties say How treaties can supplement the default position Clause in our Bill
Requests for additional information or evidence If a judge indicates further information is necessary, the Central Authority may apply for the hearing to be adjourned to allow for it to consult with the requesting country. Under the four most recent treaties, New Zealand must or may set a deadline for the requesting country to respond, otherwise the person “shall be discharged”.66 There is no need to refer to the treaty obligations. 88
Competing requests The Central Authority determines the country.67 The four most recent treaties contain a non-exhaustive list of factors. Under the Imperial treaties, it is “the earliest in date” that prevails.68 Any treaty obligation will be a relevant factor in determining competing requests. 25(2)(b)(ii) and 14(5)(c)
Representation The Central Authority exercises its judgement and will appear in court as the party. The Hong Kong and Korean treaties provide that the requested country should represent the interests of the requesting country in any extradition proceedings. Our Bill can be read consistently with the treaties, which should not be able to alter the Central Authority’s independence. 14 and in particular 14(5)(a)
Seizing and surrendering property The Bill contains provisions dealing with search and seizure on arrest and the return of any property seized.69 All of the treaties state that, to the extent permitted under New Zealand law (and subject to the rights of third parties), New Zealand will surrender any items seized from a requested person at the time of their arrest that could be evidence of the commission of the extradition offence.70 The gathering of information to support the substantive charges behind the extradition should be sought through a mutual assistance request, and governed by the Search and Surveillance Act 2012.

There is no real issue of inconsistency, as all treaty obligations are “to the extent permitted under the law of the requested party”.
119 and 120

The slightly more complex areas of interactionTop

3.9We have taken an approach different from some of the treaties in five other areas, but for the reasons we explain here we do not consider that the departure is significant. In any event, the departure works to the benefit of the requesting state, within a framework that also guards the interests of the person sought.

Provisional arrest

3.10Most of the treaties contain an article specifying that a person who is provisionally arrested must be discharged after a set number of days if New Zealand has not received an extradition request. Many also state that the request must include the “evidence” (that is, the Record of the Case under our new Bill). The treaties sometimes specify as little as 14 days,71 although some make provision for the Court to set an alternative deadline.72
3.11Our Bill states that following a provisional arrest, the Court must set a time by which the Central Authority must file the Notice of Intention to Proceed.73 In setting the timeframe by reference to the Notice of Intention to Proceed, we are opting for a different approach than most of the treaties. That is because our approach does not require “the evidence” to be formally presented within the statutory timeframe. There is a sound policy reason for this: requesting countries may need more time to prepare their evidence as a Record of the Case, as the form will be unfamiliar to most countries and criminal cases are increasingly complex. Under our Bill, the Court would set a later date for disclosure of the Record of the Case so there is an alternative mechanism for ensuring that “the evidence” is presented in a timely manner.74 For this reason we do not believe that our proposal is a significant departure from our international obligations.

Arrest

3.12Most of the pre-1947 Imperial treaties contain articles stating that any arrested person must be discharged if sufficient evidence to warrant extradition has not been presented within two months.75
3.13Our Bill does not set a time limit between arrest and disclosure of the evidence. We have proposed that, unless a person is arrested under a provisional warrant, the Court must have a preliminary conference within 15 days of a person’s arrest.76 At that conference, the Court must set a date for disclosure of the Record of the Case.77 We decided not to provide any statutory guidance as to how to choose that date because cases will vary enormously in complexity. We would expect that, in setting the time, judges will use the treaty requirements as a guiding tool.

The standard of evidence

3.14The standard of evidence required is broadly the same in all the treaties. If the person is accused of an extradition offence the evidence must “justify committal for trial” in New Zealand. If the person has been convicted of an extradition offence the evidence must “prove that the person is identical to the person who was so convicted”.

3.15Committal no longer exists in New Zealand. Nowadays the mechanism for testing whether there is sufficient evidence to justify a trial is found in section 147 of the Criminal Procedure Act 2011. This section allows for charges to be dismissed for want of evidence. As we discuss in Chapter 9, our Bill sets a new standard based on the “no case to answer” test in section 147, in relation to extradition requests for accused persons. We consider that, in substance, this test is the same as the old test applied in committal proceedings so, despite the variance in language, our view is that there is no issue of inconsistency with the treaties.

Admissibility and authentication

3.16The treaties all state that duly authenticated documents “shall be admitted” as evidence in New Zealand extradition proceedings. The authentication provisions in the treaties then vary.

3.17Most of the modern treaties refer generally to “documents”, whereas the older treaties (and the United States treaty) expressly mention primary documents in the form of warrants, depositions and other statements given under oath, judgments and judicial certificates.

3.18All but one of the treaties require two forms of verification for such documents; namely, a signature or the certificate of a judge, magistrate or other officer of the state, and either the oath of a witness or the seal of a state ministry. Some provide that alternative forms of authentication may be used instead, if that is permissible under New Zealand law.

3.19Under our Bill, the requesting country will need to produce a Record of the Case to prove that the criteria for extradition are met.78 For requests relating to convicted persons, the Bill states that the Record of the Case must attach the official documents recording the conviction and, if applicable, the sentence and the extent to which it has been served.79 Such a Record will then be admissible if it is accompanied by a certificate prepared by a judicial or prosecuting authority, which states that the documents in the Record of the Case are accurate and complete.80 For requests relating to accused persons, the evidence must be presented in summarised form. The Record is then admissible if an investigating authority or prosecutor provides a detailed certification as to the availability and sufficiency of the evidence, and the requesting country’s compliance with the duty of candour and good faith.81 These certification requirements are discussed further in Chapter 9. We consider that, although different, these authentication requirements are in keeping with the spirit behind the authentication articles in the treaties. Both aim to ensure that the provenance of the supporting documentation is clear.

Grounds for refusal

3.20In the Issues Paper, we proposed that while treaties should be able to add grounds for refusal or expand the application of existing grounds, no treaty should be able to limit or override any of the statutory grounds.82 We explain how we envisage this relationship will work in practice in Chapter 5, which discusses the grounds for refusal in detail.
57See Issues Paper, above n 51, at ch 3 for a detailed summary of New Zealand’s existing bilateral and multilateral extradition treaties.
58Extradition Act 1999, s 11(1). The exceptions to this general principle are outlined in s 11(2). The exceptions to the exceptions are then outlined in s 11(3).
59See the discussion in Issues Paper, above n 51, at [3.47]–[3.60].
60Extradition Bill, cl 11. This is based on a similar approach taken in the Canadian extradition legislation. For a discussion of this approach, see Issues Paper, above n 51, at [3.72] and [3.76]–[3.79].
61Bilateral treaties mainly list offences, most of which (but not all) have clear parallels with New Zealand offences. Multilateral treaties designate offences as extradition offences, and many go further and create an obligation to extradite or prosecute.
62Issues Paper, above n 51, at [3.49]–[3.57] and [5.5]–[5.12].
63The rule concerning convictions in absentia is widely accepted. Given that current treaties either follow the rule or are silent as to expressing a conflict, it seems appropriate not to provide for a possibility that might override such a long-accepted norm. We note also that the Hong Kong Treaty has a discretionary ground for refusal for convictions in absentia: Agreement for the Surrender of Accused and Convicted Persons Between the Government of New Zealand and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China (signed 3 April 1998, entered into force 1 October 1998), art 7(4).
64The treaty requirements will, however, be relevant to the Central Authority’s decision whether to apply for a provisional warrant in the first place: Extradition Bill, cl 14(5)(c).
65The exception is extradition requests from Australia, for which these assurances are not required. See discussion in ch 7.
66Such a discharge does not prevent a further request for extradition: Extradition Bill, cl 58.
67In making this determination, the Central Authority must consider several factors, including the provisions of any extradition treaty: Extradition Bill, cl 14(5)(c). The exception is that, if one of the requests is from the International Criminal Court, the tests in ss 61–66 of the International Crimes and International Criminal Court Act 2000 apply.
68Although most ameliorate that approach with the addition of an ability to waive that claim.
69These provisions aim to replicate the equivalent provisions under domestic law, modified in limited ways to reflect the extradition context.
70Some treaties go further and refer to any items in the person’s possession at all, or any items “if found” that could be evidence or items obtained as a result of the offending (that is, proceeds). In addition, some treaties state that these items should be surrendered even if the person is not extradited in the end due to death or escape.
71Examples of specified deadlines include: 14 days in the treaty with Belgium (although it appears that the request does not need to include the full evidence); 30 days in the treaties with Argentina, Columbia, Ecuador, El Salvador, Estonia and Finland; 40 days in the treaty with the Czech Republic; 45 days in the treaties with Fiji, Korea and the United States; 60 days in the treaty with Hong Kong; two months in the treaties with Albania and Argentina; and 90 days in the treaty with Chile: see list of treaties in Schedule 3 to the Extradition Bill, at ch 16 of this Report.
72For example, the treaties with Fiji and Albania: see list of treaties in Schedule 3 to the Extradition Bill, at ch 16 of this Report.
73Extradition Bill, cl 72(2).
74Extradition Bill. cl 30(2)(a).
75For example, the treaties with Argentina and Belgium; see list of treaties in Schedule 3 to the Extradition Bill, at ch 16 of this Report.
76Extradition Bill, cl 27(2)(b).
77Extradition Bill, cl 30(2)(a).
78Extradition Bill, cl 33(1).
79Extradition Bill, cl 33(3)(d).
80Extradition Bill cl 33(3)(a) and (e).
81Extradition Bill, cl 33(2)(a) and (f).
82Issues Paper, above n 51, at 86.