The Minister for Justice, Equality and Law Reform, Mr. Brian Lenihan, T.D., and the Secretary for Justice of the Hong Kong Special Administrative Region, The Honourable Wong Yan Lung, SC, JP, today signed the Agreement between the Government of Ireland and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China concerning the Surrender of Fugitive Offenders.
Speaking at the signing ceremony Minister Lenihan said: "This bilateral Agreement is a clear indication of the determination of both the Irish and Hong Kong Governments to face the challenge posed by modern transnational crime and to ensure that there can be no safe havens for fugitives from justice.
I am pleased that we have been able to negotiate what is a strong and effective agreement which takes account of the fundamental legal and constitutional principles of both jurisdictions aimed at protecting the individual".
The Agreement, the Minister noted, "facilitates co-operation in extradition between Ireland and Hong Kong by setting out an agreed range of offences in respect of which surrender will apply and simplified procedures to be followed in dealing with requests for extradition".
5 October 2007
Notes for Editors
- The purpose of the Agreement is to facilitate extradition between Ireland and the Hong Kong SAR. The Agreement facilitates co-operation in extradition by setting out an agreed range of offences in respect of which surrender will apply and the procedures to be followed in dealing with requests for extradition.
- The Hong Kong Government initiated this Agreement. It is part of its strategy to build direct bilateral links with the West. It has negotiated agreements in the criminal justice area (extradition, transfer of prisoners, mutual legal assistance) with several EU states (including the UK, Germany, Belgium, Portugal, Netherlands, France and Italy).
- Hong Kong is a Special Administrative Region of the People’s Republic of China with certain delegated autonomy in relation to the conduct of its external affairs. The Extradition Act 1965 has been amended to include a "territory", which covers the status of Hong Kong, to ensure a basis in Irish law for this Agreement.
- Ireland has already signed a Mutual Assistance Treaty with Hong Kong which will be ratified when the Criminal Justice (Mutual Assistance) Bill 2005, which provides the required legal basis for some elements of the Treaty is enacted. The Bill is currently awaiting Committee Stage in the Dáil and it is expected will be enacted during the current Dáil session.
- The Agreement will enter into force 30 days following notification that the parties respective requirements for entry into force have been complied with. Under Article 29.5.20 of the Constitution this Agreement must have its terms approved by the Dáil before it can bind the State. The Minister will move a resolution in the Dáil seeking approval of its terms in the near future.
Main provisions of the Agreement
Article 1 of the Agreement sets out the obligation on each party to surrender persons wanted by the other party for prosecution or for the imposition or enforcement of a sentence subject to the provisions of the Agreement. It also provides that references to "surrender" in the Agreement are to be construed as references to "extradition" in Irish law.
Article 2 sets out the main categories of offences covered by the Agreement. An offence must carry a penalty of at least 12 months imprisonment/detention for surrender to apply, it must be an offence under the law of both parties (dual criminality) and, in the case of a person sought for service of a sentence, at least 6 months must remain to be served.
Article 3 provides that each party reserves the right to refuse the surrender of its own nationals. In the case of the Hong Kong SAR the reference is to nationals of the People’s Republic of China. Where this right is exercised the requesting party may ask that the matter be referred to the competent authorities of the requested party to consider prosecution there.
Article 4(a) provides that a person will be surrendered only if there is sufficient evidence, according to the law of the requested party, to justify the committal for trial of the person sought if the offence were committed in the territory of that Party.
Article 4(b) provides for surrender of a convicted person if sufficient evidence is provided showing that the sentence is enforceable and the person sought is the person convicted.
Article 5 sets out the mandatory grounds for refusal of requests.
Article 6 sets out the discretionary grounds for refusal of requests.
Article 7 provides that surrender may be postponed where the person sought is being proceeded against, or serving a sentence, in the territory of the requested party for an offence other than that to which the request relates.
Article 8 deals with the form and content of requests, the transmission of requests, the competent authorities to receive requests in each jurisdiction and the information to accompany requests.
Article 9 provides for documents authenticated in accordance with the provisions to that Article to be admitted in evidence.
Article 10 provides for translation of all documents into an official language of the requested party.
Article 11 makes provision for the supply of additional information for the purpose of making a decision under the terms of the Agreement. In the event the information requested is not supplied within the timeframe specified or that it is insufficient the person whose surrender is sought may be discharged if s/he is in custody. However, this does not preclude a fresh application from being made for the surrender of that person.
Article 12 sets out procedures to apply to provisional arrests in cases of urgency pending receipt of the request for surrender.
Article 13 sets out the criteria to apply where there are concurrent requests for surrender of a person under this Agreement and any other agreements on surrender to which either Ireland or Hong Kong may be party.
Article 14 provides that the requested party shall bear the expenses of a request for surrender incurred in its territory and shall represent the interest of the requesting party. In the event of exceptional expenses being incurred the parties will consult on how those expenses may be met.
Article 15 sets out the procedures to be followed once a decision has been made on a request for surrender.
Article 16 sets out the arrangements to apply to the transfer of property of a person surrendered.
Article 17 deals with rule of specialty. It provides that a person shall not be proceeded against, sentenced, detained or subjected to any other restriction of personal liberty in respect of any offence other than that for which surrender has been granted save in accordance with the provisions of the Article.
Article 18 sets out the procedure to be followed where a person sought consents to surrender.
Article 19 provides for transit through the territory of a party to the extent permitted by its law.
Article 20 sets out the arrangements for entry into force, suspension and termination of the Agreement.