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Extradition (Spain) Regulations

SR 1988 No. 52 Regulations as made
Principal Regulations
Tabling HistoryDate
Tabled Senate18-May-1988
Tabled HR23-May-1988
Gazetted 20 Apr 1988
Date of repeal 01 Dec 1988
Repealed by Repeal of the enabling legislation by Extradition (Repeal and Consequential Provisions) Act 1988

1988 No. 52*1* EXTRADITION (SPAIN) REGULATIONS

*1*Notified in the Commonwealth of Australia Gazette on 20 April 1988.

1988 No. 52 EXTRADITION (SPAIN) REGULATIONS
- REG 1
Citation

1. These Regulations may be cited as the Extradition (Spain) Regulations.

1988 No. 52 EXTRADITION (SPAIN) REGULATIONS
- REG 2
Commencement

2. These Regulations shall come into operation on 5 May 1988.

1988 No. 52 EXTRADITION (SPAIN) REGULATIONS
- REG 3
Interpretation

3. In these Regulations, "the Act" means the Extradition (Foreign States) Act 1966.

1988 No. 52 EXTRADITION (SPAIN) REGULATIONS
- REG 4
Application of Act

4. (1) The Act applies in relation to Spain subject to the Treaty on Extradition between Australia and Spain done at Madrid on 22 April 1987 (being a treaty a copy of the English text of which is set out in the Schedule).

(2) Subregulation (1) shall be read and construed as being in addition to, and not in derogation of, any other regulation under the Act making provision in respect of the application of the Act in relation to Spain.

1988 No. 52 EXTRADITION (SPAIN) REGULATIONS
- SCHEDULE

SCH

SCHEDULE
Regulation 4
TREATY ON EXTRADITION BETWEEN AUSTRALIA AND SPAIN
Australia and Spain,
DESIRING to make more effective the co-operation of the two countries in the
suppression of crime by concluding a treaty for the extradition of persons
charged with or convicted of offences,
HAVE AGREED as follows:
Article 1
OBLIGATION TO EXTRADITE
Each Contracting State agrees to extradite to the other, in accordance
with the provisions of this Treaty, any persons who are wanted for
prosecution or the imposition or enforcement of a sentence in the
requesting State for an extraditable offence.

Article II
EXTRADITABLE OFFENCES
1. For the purpose of this Treaty, extraditable offences are offences
however described which are punishable under the laws of both
Contracting States (both at the time of the commission of the offence as
well as at the time of the extradition request) by imprisonment,
detention order or other deprivation of liberty for a maximum period of
at least one year or by a more severe penalty. Where the request for
extradition relates to a person convicted of such an offence who is
wanted for the enforcement of a sentence of imprisonment, detention
order or other deprivation of liberty, extradition shall be granted only
if a period of at least six months of the penalty remains to be served.

2. For the purpose of this Article it shall not matter whether the
laws of the Contracting States place the acts or omissions constituting
the offence within the same category of offence or denominate the
offence by the same or similar terminology.

3. For the purpose of this Article in determining whether an offence
is an offence against the law of both Contracting States, the totality
of the acts or omissions alleged against the person whose extradition is
requested shall be taken into account without reference to the elements
of the offence prescribed by the law of the requesting State.

4. Where the offence has been committed outside the territory of the
requesting State extradition shall be granted where the law of the
requested State provides for the punishment of an offence committed
outside its territory in similar circumstances. Where the law of the
requested State does not so provide the requested State may, in its
discretion, grant extradition.

5. Extradition shall be granted for fiscal offences. Extradition may
not be refused on the ground that the law of the requested State does
not impose the same kind of tax or duty or does not contain a tax, duty,
customs or exchange regulation of the same kind as the law of the
requesting State.

Article III
EXCEPTIONS TO EXTRADITION
1. Extradition shall not be granted in any of the following circumstances:
(a) when the offence for which extradition is requested is a political
offence. Reference to a political offence for the purpose of this
sub-paragraph shall not include the taking or attempted taking of the
life of a Head of State nor a member of his or her family, nor an
offence against the law relating to genocide, nor any offence in respect
of which the Contracting States have an obligation pursuant to an
international agreement, to which they are both parties, to submit the
case to their competent authorities for decision as to prosecution if
extradition is not granted, nor any offence that the laws of both
Contracting States provide shall not be regarded as a political offence;
(b) when there are substantial grounds for believing that a request for
extradition for an ordinary criminal offence has been made for the
purpose of prosecuting or punishing a person on account of that person's
race, religion, nationality or political opinion or that that person's
position may be prejudiced for any of those reasons;
(c) when the offence for which extradition is requested is an offence under
military law, which is not an offence under the ordinary criminal law of
the Contracting States;
(d) where final judgement has been passed in the requested State or in a third state in respect of the offence for which the person's extradition is
requested; or
(e) where the person whose extradition is requested has, according to the law
of either Contracting State, become immune from prosecution or
punishment by reason of lapse of time, or criminal responsibility has
been extinguished for any other reason.

2. Extradition may be refused in any of the following circumstances:
(a) when the person whose extradition is requested is a national of the
requested State. Nationality shall be determined as at the time of the
decision concerning extradition. Where the requested State refuses to
extradite a national of that State it shall, if the other State so
requests and the law of the requested State allows, submit the case to
the competent authorities in order that proceedings for the prosecution
of the person in respect of all or any of the offences for which
extradition has been requested may be taken if that is considered
appropriate;
(b) when the competent authorities of the requested State, having concurrent
jurisdiction, have decided to refrain from prosecuting the person whose
extradition is requested for the offence in respect of which extradition
is requested;
(c) where the offence of which the person requested is accused or of which the person is convicted, or any other offence for which the person may be detained
or tried in accordance with this Treaty, carries the death penalty under the law of the requesting State unless that State offers sufficient guarantees that,
under no circumstances, will the death penalty be carried out;
(d) when the offence for which extradition is requested is regarded under the
law of the requested State as having been committed in whole or in part
within that State;
(e) when a prosecution in respect of the offence for which extradition is
requested is pending in the requested State against the person whose
extradition is requested; or
(f) where the requested State, while also taking into account the nature of
the offence and the interests of the requesting State, considers that,
in the exceptional circumstances of the case, the extradition would be
incompatible with humanitarian considerations.

Article IV
POSTPONEMENT OF EXTRADITION
The requested State may postpone the extradition of a person in order
to proceed against the person, or so that the person may serve a
sentence, for an offence other than an offence for which extradition is
requested and where the requested State so postpones the extradition it
shall advise the requesting State.

Article V
EXTRADITION PROCEDURE AND REQUIRED DOCUMENTS
1. A request for extradition shall be made in writing and shall be
communicated through the diplomatic channel. All documents submitted in
support of a request for extradition shall be duly authenticated.

2. A request for extradition shall be accompanied by the following documents
and information:
(a) if the person is accused of an offence - a warrant for the arrest
or a copy of the warrant for arrest of the person, a statement of each
offence for which extradition is requested and a statement of the acts
or omissions which are alleged against the person in respect of each
offence;
(b) if the person has been convicted of an offence - such documents as provide evidence of the conviction and the sentence imposed, the fact that the sentence
is immediately enforceable, and the extent to which the sentence has not been
carried out;
(c) if the person has been convicted of an offence but no sentence has been
imposed - such documents as provide evidence of the conviction and a statement
affirming that it is intended to impose a sentence;
(d) in all cases - a copy of the relevant provision of the law
including any law relating to the limitation of proceedings, as the case
may be, and a statement of the punishment or detention order that can be
imposed for the offence; and
(e) in all cases - information or documentation which will help to
establish the identity of the person whose extradition is requested.

3. Subject to the law of the requested State, extradition may be
granted of a person sought pursuant to the provisions of this Treaty,
notwithstanding that the requirements of paragraphs 1 and 2 of this
Article have not been complied with, provided that the person sought
consents to an order for extradition being made.

4. A Contracting State which sends to the other Contracting State a
document in accordance with this Treaty that is not in the language of
the other State shall, if requested, provide a translation of the
document into the language of the other Contracting State.

Article VI
AUTHENTICATION OF DOCUMENTS
1. A document that, in accordance with Article V, accompanies a request for
extradition shall be admitted, if duly authenticated, in any extradition
proceedings in the territory of the requested State.

2. A document is duly authenticated for the purposes of this Treaty if;
(a) it purports to be signed or certified by a judge, magistrate or officer in or of the requesting State; and
(b) it purports to be authenticated by an official or public seal of the
requesting State.

Article VII
ADDITIONAL INFORMATION
1. If the requested State considers that the information furnished in
support of the request for the extradition of a person is not sufficient
to fulfil the requirements of this Treaty, that State may request that
additional information be furnished within such time as it specifies.

2. If the person whose extradition is requested is under arrest and
the additional information furnished is not sufficient or is not
received within the time specified, the person may be released from
custody but such release shall not preclude the continuation of the
extradition proceedings or the making of a fresh request for
extradition.

3. Where the person is released from custody in accordance with
paragraph 2, the requested State shall notify the requesting State as
soon as practicable.

Article VIII
PROVISIONAL ARREST
1. In case of urgency a Contracting State may apply by means of the
facilities of the International Criminal Police Organisation (INTERPOL)
or otherwise for the provisional arrest of the person sought pending the
presentation of the request for extradition through the diplomatic
channel.

2. The application for provisional arrest shall give particulars of
the definitive court decision or warrant of arrest, a description of the
offence involved, when and where it was committed and the details of the
identity of the person sought, and shall offer to submit subsequently an
extradition request.

3. On receipt of such an application for provisional arrest the
requested State shall take the necessary steps to secure the arrest of
the person sought and the requesting State shall be promptly notified of
the result of its request.

4. A person arrested upon such an application shall be set at liberty
upon the expiration of forty days from the date of that person's arrest
if a request for that person's extradition, supported by the documents
specified in Article V, has not been received.

5. The release of a person pursuant to paragraph 4 of this Article
shall not prevent the institution or continuation of proceedings with a
view to extraditing the person sought if the request is subsequently
received.

Article IX
CONFLICTING EXTRADITION REQUESTS
1. Where requests are received from two or more States for the extradition of
the same person, the requested State shall determine to which of those States
the person is to be extradited and shall notify the requesting States
of its decision.

2. In determining to which State a person is to be extradited, the
requestied State shall have regard to all relevant circumstances and, in
particular, to:
(a) if the requests relate to different offences - the relative
seriousness of the offences;
(b) the time and place of commission of each offence;
(c) the respective dates of the requests;
(d) the nationality of the person; and
(e) the ordinary place of residence of the person.

Article X
SURRENDER OF PERSON TO BE EXTRADITED
1. Neither Contracting State shall be required to make a decision on a
request for extradition before the expiration of twenty-one days from
the date on which the person has been held by final judicial decision to
be liable to extradition.

2. The requested State shall as soon as a decision on the request for
extradition has been made, communicate that decision to the requesting
State through the diplomatic channel. Reasons shall be given for any
complete or partial rejection of an extradition request.

3. Where extradition of a person for an offence is granted, the person
shall be removed from a point of departure in the territory of the
requested State convenient to the requesting State.

4. The requesting State shall remove the person from the territory of
the requested State within such reasonable period as the requested State
specifies. If the person is not removed within that period, the
requested State may refuse to grant extradition for the same offence.

5. If circumstances beyond its control prevent a Contracting State
from surrendering or removing the person to be extradited it shall
notify the other State. The Contracting States shall agree upon a new
date of surrender, and the provisions of paragraph 4 of this Article
shall apply.

Article XI
SURRENDER OF PROPERTY
1. To the extent permitted under the law of the requested State and
subject to the rights of third parties, which shall be duly respected,
all property found in the requested State that has been acquired as a
result of the offence or may be required as evidence shall, if the
requesting State so requests, be surrendered if extradition is granted.

2. Subject to the provisions of paragraph 1 of this Article, the
abovementioned property shall, if the requesting State so requests, be
surrendered to the requesting State even if the extradition cannot be
carried out owing to the death or escape of the person sought.

3. Where the law of the requested State or the rights of third parties
so require, any articles so surrendered shall be returned to the
requested State free of charge if that State so requests.

Article XII
RULE OF SPECIALITY
A person who has been extradited shall not be proceeded against,
sentenced or detained nor be subjected to any other restriction of
personal liberty for any acts or omissions committed prior to that
person's surrender other than that for which the person was extradited,
except in the following cases:
(a) when the requested State consents. A request for consent shall be
accompanied by the documents or information mentioned in Article V;
(b) when that person having had the opportunity to leave the territory of the
requesting State has not done so within forty-five days of that person's final
discharge, or has returned to that territory after leaving it.

Article XIII
RE-EXTRADITION TO A THIRD STATE
1. Where a person has been surrendered to the requesting State by the
requested State, the requesting State shall not surrender that person to
any third state for an offence committed before that person's surrender
unless:
(a) the requested State consents; or
(b) the person has had an opportunity to leave the requesting State
and has not done so within forty-five days of final discharge in respect
of the offence for which that person was surrendered by the requested
State or has returned to the territory of the requesting State after
leaving it.

2. Before acceding to a request pursuant to sub-paragraph (1) (a) of
this Article, the requested State may request the production of the
documents or information mentioned in Article V.

Article XIV
TRANSIT
1. Where a person is to be extradited to a Contracting State from a
third state or from a Contracting State to a third state through the
territory of the other Contracting State, the Contracting State to which
or from which the person is to be extradited shall request the other
Contracting State to permit the transit of that person through its
territory.

2. Upon receipt of such a request the requested State shall grant the
request unless it is satisified that there are reasonable grounds for
refusing to do so. The requested State may request all or any of the
documents or information mentioned in Article V.

3. Permission for the transit of a person shall, subject to the law of
the requested State, include permission for the person to be held in
custody during transit.

4. Where a person is being held in custody pursuant to paragraph 3,
the requested State may direct that the person be released if
transportation is not continued within a reasonable time.

Article XV
EXPENSES
1. The requested State shall make all necessary arrangements for and
meet the cost of any proceedings arising out of a request for
extradition.

2. The requested State shall bear the expenses incurred in its
territory in the arrest and detention of the person whose extradition is
requested, until the person is surrendered to whomsoever is nominated by
the requesting State.

3. The requesting State shall bear the expenses incurred in conveying from the territory of the requested State the person whose extradition is requested.

Article XVI
ENTRY INTO FORCE AND TERMINATION
1. This Treaty shall enter into force thirty days after the
Contracting States have exchanged notifications that the legal
requirements for its entry into force have been complied with.

2. Either Contracting State may terminate this Treaty by notice in
writing at any time and it shall cease to be in force on the one hundred
and eightieth day after the day on which notice is given. This Treaty,
however, shall continue to apply to any request for extradition pending
on the date on which the Treaty ceases to have effect.

3. Subject to paragraph 5 below, on entry into force of this Treaty,
the Extradition Treaty signed between Spain and Great Britain on 4 June
1878 shall cease to have effect between the Contracting States.

4. Extraditions requested after the entry into force of this Treaty shall be
governed by its provisions.

5. Extraditions requested prior to the entry into force of this Treaty
shall continue to be processed and resolved in accordance with the
provisions of the Extradition Treaty between Spain and Great Britain
signed on 4 June 1878.

IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their
respective Governments, have signed this Treaty.

DONE at Madrid on the twenty-second day of April, One thousand nine hundred and
eighty-seven in the English and Spanish languages, both texts being equally
authentic.

FOR AUSTRALIA FOR SPAIN LIONEL BOWEN FERNANDO LEDESMA The Honourable Excelentisimo Senor Don Lionel Frost Bowen Fernando Ledesma Bartret Attorney-General Ministro de Justicia