Home | Databases | WorldLII | Search | Feedback Canadian Treaty Series

Treaty between Canada and the Kingdom of the Netherlands on Extradition [1991] CATSer 30 (1 December 1991)

E101347 - CTS 1991 No. 32

TREATY BETWEEN CANADA AND THE KINGDOM OF THE NETHERLANDS ON EXTRADITION

Respecting each others judicial institutions and desiring to make more effective the co-operation between the two countries in the suppression of crime by making provision for the extradition of offenders,

AGREE 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 person within its territory who is accused of an offence or sought for the purpose of imposition or enforcement of a sentence by the authorities of the other State.

Article 2

EXTRADITABLE OFFENCES

1. Extradition shall be granted for conduct which, under the law of both States, constitutes an offence punishable by a term of imprisonment of more than one year. In addition, where a sentence of imprisonment or other deprivation of liberty has been imposed by the Courts of the requesting State, the portion of the sentence that remains to be served must be at least six months.

2. If the request for extradition relates to a sentence of both imprisonment or other deprivation of liberty as provided in paragraph 1 and a pecuniary sanction, the requested State may also grant extradition for the enforcement of the pecuniary sanction.

3. If the request for extradition relates to a number of offences, each of which is punishable under the law of both States, but some of which do not meet the other requirements of paragraph 1, the requested State may also grant extradition for such offences.

4. An offence is extraditable notwithstanding that it relates to taxation, customs or revenue or is one of a purely fiscal character.

Article 3

EXTRADITION OF NATIONALS

1. A request for extradition of a person accused of an offence shall not be refused solely on the basis of the nationality of the person sought.

2. The requested State shall not be bound to extradite its own nationals for the purpose of enforcing a sentence.

3. If extradition is refused under paragraph 2, the requested State shall, at the request of the requesting State and if the law of the requested State so permits, refer the matter to its authorities for the purpose of enforcing the sentence imposed in the requesting State.

Article 4

MANDATORY REFUSAL OF EXTRADITION

Extradition shall not be granted:

a. if the offence for which extradition is requested is considered by the requested State to be a political offence or an offence connected with such an offence. The taking or attempted taking of the life of the Head of State or the Head of Government or a member of their families shall not be considered to be a political offence;

b. if the offence for which extradition is requested is an offence under military law and is not an offence under the general criminal law of both States;

c. if the person sought has been finally acquitted or convicted in the requested State for conduct constituting the same offence for which extradition is requested; or

d. if the right to prosecute the offence or to enforce the sentence would be barred by lapse of time under the law of the requested State.

Article 5

DISCRETIONARY REFUSAL OF EXTRADITION

Extradition may be refused:

a. if the person sought is being prosecuted by the requested State for the offence for which extradition is requested or if the competent authorities of the requested State have decided, in accordance with the law of that State, not to prosecute or to terminate the prosecution that has been instituted;

b. if the person sought has been finally acquitted or convicted in a third State for conduct constituting the same offence for which extradition is requested and, if convicted, the sentence imposed has been fully enforced or is no longer enforceable;

c. if, in the opinion of the requested State, the offence was committed outside the territory of the requesting State and the law of the requested State does not, in corresponding circumstances, provide for the same jurisdiction; or

d. if the requested State, taking into account the nature of the offence and the interests of the requesting State, considers that the extradition of the person sought would be incompatible with humanitarian considerations, particularly in view of the person’s age or health.

Article 6

PRESANTATION OF REQUESTS

1. Without prejudice to paragraph 1 of Article 9, any requests made under this Treaty, supporting documents and correspondence may be transmitted between the Departments of Justice of the Contracting States.

2. For the Kingdom of the Netherlands, Department of Justice means:

a. for the part of the Kingdom in Europe, the Ministry of Justice of the Netherlands at The Hague; or

b. for the part of the Kingdom outside Europe, the Ministry of Justice of the Netherlands Antilles in Willemstad, or the Ministry of Justice of Aruba in Oranjestad, as the case may be.

3. For Canada, Department of Justice means the Department of Justice for Canada at Ottawa.

4. Nothing in this article excludes the use of diplomatic channels.

Article 7

DOCUMENTS TO BE SUBMITTED

1. The following documents shall be submitted in support of a request for extradition:

a. in all cases:

(i) information about the description, identity, location and nationality of the person sought;

(ii) a statement prepared by a magistrate or public official of the conduct constituting the offence for which the extradition is requested, indicating the place and time of its commission, the nature of the offence and the legal provisions describing the offence and the applicable punishment;

b. in the case of a person who is accused of an offence:

(i) the original or certified copy of the order of arrest, issued in the requesting State;

(ii) in support of requests from the Kingdom of the Netherlands, evidence that would justify a committal for trial of the person sought. For the purpose, originals or certified copies of exhibits, statements and summaries of statements, reports, or any other document, whether taken on oath or solemnly affirmed or not, and whether obtained in the Kingdom of the Netherlands or elsewhere, shall be admitted in evidence as proof of the facts contained therein, if a rechter-commissaris (investigating judge) certifies that they constitute evidence admissible under Dutch law and were the basis for the issuance of the order of arrest;

c. in the case of a person sought for the enforcement of a sentence:

(i) the original or a certified copy of the judgement or other document setting out the conviction and sentence imposed;

(ii) if a portion of the sentence has already been served, a statement by a public official specifying the portion of the sentence which remains to be served;

d. in support of requests from Canada, relating to a person who has been convicted but has not been sentenced, the original or a certified copy of the order of arrest and the original or a certified copy of a document establishing that the person has been convicted and that a sentence is to be imposed.

2. In the case of a person convicted in absentia the requirements relating to the submission of documents referred to in subparagraphs a and b of paragraph 1 shall apply. If, however, it is established that the charge, containing notice of the date and place of trial, or the judgement rendered in absentia has been personally served on the person sought, and that person has not appeared or availed himself or herself of the rights to appeal and retrial, the requirements relating to the submission of documents referred to in subparagraphs a and c of paragraph 1 shall apply.

3. All documents submitted in support of a request for extradition and appearing to have been certified or issued by a judicial authority of the requesting State or made under its authority shall be admitted in extradition proceedings in the requested State without having to be taken under oath or affirmation and without proof of the signature or of the official character of the person appearing to have signed them.

4. No authentication or further certification of documents submitted in support of the request for extradition shall be required.

5. Any translation of documents submitted in support of a request for extradition provided by the requesting State, shall be admitted for all purposes in extradition proceedings.

Article 8

ADDITIONAL INFORMATION

1. If the competent authorities of the requested State consider at any stage of the extradition process that the information provided by the requesting State is insufficient to make a decision under this Treaty, the requested State may ask for additional information. The requested State may set a time limit for the submission of such information and, upon application of the requesting State, may grant a reasonable extension of the time limit.

2. If the additional information is considered to be insufficient or is not received within the time specified by the requested State, the person sought, if in custody, may be released and the case against such person may be terminated. Release of the person sought shall not preclude the continued consideration of the request nor shall the termination of the case preclude the subsequent submission of a new request for the same offence.

Article 9

PROVISIONAL ARREST

1. In cases of urgency, the competent authorities of the requesting State may request, in writing, the provisional arrest of the person sought.

2. The request for provisional arrest shall include:

a. information concerning the description, identity, nationality and location of the person sought;

b. an indication of the intention to request extradition;

c. the name, date and place of the offence and a brief description of the facts of the case;

d. a statement attesting to the existence and terms of an order of arrest or a judgement of conviction;

e. a statement of the maximum penalty that can be imposed or the sentence that has been imposed for the offence.

3. The requested State shall inform the requesting State without delay of the action taken on the request for provisional arrest.

4. Provisional arrest shall terminate if, within a period of sixty (60) days following the arrest, the requested State has not received the request for extradition and the documents referred to in Article 7 and the person sought is still detained under the provisional arrest warrant. The competent authorities of the requested State may release a person provisionally arrested at any time, subject to such conditions as are considered necessary to ensure that such person does not leave the country.

5. Release from custody of the person sought at the end of the sixty (60) day time limit shall not prevent subsequent arrest and extradition if the request for extradition and the supporting documents referred to in Article 7 are subsequently received.

Article 10

COMPETING REQUESTS

If extradition of the same person is requested by two or more States, the requested State shall determine to which of these States the person will be extradited and shall inform the requesting State of its decision.

Article 11

SURRENDER

1. The requested State shall inform the requesting State of its decision with respect to the extradition.

2. Reasons shall be given for any refusal of the request in whole or in part.

3. In the event that extradition is granted, the requesting State shall be informed of the place and date of the surrender, and of the length of time that the person sought was detained in custody for the purpose of extradition.

4. If the person sought has not been surrendered at the appointed date, that person may be released on the expiry of fifteen (15) days from that date, and may be discharged on the expiry of thirty (30) days.

Article 12

POSTPONEMENT OF SURRENDER

The requested State may postpone the surrender of the person sought in order to prosecute the person or to require the person to serve a sentence for an offence other than the offence for which extradition has been granted, and shall inform the requesting State of its decision.

Article 13

SURRENDER OF PROPERTY

1. To the extent permitted under the law of the requested State and subject to the rights of third parties, all property acquired as a result of the offence or which may be used as evidence shall, if found, upon request be surrendered to the requesting State if extradition is granted or consented to.

2. The property referred to in paragraph 1 shall be surrendered even if, extradition having been granted or consented to, the surrender of the person sought cannot take place as a result of the person’s death or escape.

Article 14

RULE OF SPECIALTY

1. A person extradited under this Treaty shall not he prosecuted, detained, tried or punished in the territory of the requesting State for an offence other than that for which extradition has been granted unless:

a. that person consents in writing before a judicial authority in the requesting State, after having been informed of his or her rights by the judicial authority;

b. that person has left the territory of the requesting State after extradition and has voluntarily returned to it;

c. that person has not left the territory of the requesting State within 30 days after being free to do so; or

d. the requested State has consented thereto. For this purpose, the requested State may require the submission of any document or statement mentioned in Article 7, including any statement made by the extradited person with respect to the offence concerned.

These stipulations shall not apply to offences committed after extradition.

2. If the charge for which the person was extradited is subsequently changed, that person may be prosecuted or sentenced provided the offence under its new description is:

a. based on substantially the same facts contained in the extradition request and its supporting documents; and

b. punishable by the same maximum penalty as, or a lesser maximum penalty than, the offence for which that person was extradited.

Article 15

RE-EXTRADITION TO A THIRD STATE

A person extradited under this Treaty shall not be subsequently extradited to a third State without the consent of the requested State, except in the cases provided for in subparagraph a, b, and c of paragraph 1 of Article 14. The requested State may require the production of the documents received from the third State supporting the latter’s request for subsequent extradition, and any statement made by the extradited person on the matter.

Article 16

CONSENT TO EXTRADITION

1. A person whose extradition is sought and who has been arrested pursuant to this Treaty may consent in writing before a judicial authority to be returned to the requesting State and to be held in custody pending such return, without further formal proceedings. When such consent has been given, the requesting State shall, without delay, take all steps as are necessary to receive the person sought.

2. The judicial authority shall advise the person of the rights and protections conferred under this Treaty. The consent to return shall constitute a waiver of those rights and protections, including the protections conferred under Articles 14 and 15.

Article 17

TRANSIT

1. When a third State has granted the extradition of a person to one of the Contracting States, that Contracting State shall seek the transit permission for that person from the other Contracting State in the case of a scheduled landing on the latter State’s territory of an aircraft with that person on board.

2. The request for transit permission shall include such information as specified in subparagraphs a and c of paragraph 2 of Article 9.

3. The Contracting State requested for transit may refuse to give its permission on any grounds provided by its law.

Article 18

LANGUAGES

Requests under this Treaty may be made in either the French or English language, except that requests to the Kingdom of the Netherlands outside Europe, if in French, shall be accompanied by an English translation. All other documents shall be translated into an official language of the requested State.

Article 19

EXPENSES

1. Expenses related to the translation of documents and the transfer of the person extradited from the territory of the requested State to that of the requesting State shall be borne by the requesting State.

2. All other expenses incurred by the requested State by reason of extradition shall be borne by that State.

3. Expenses related to transit incurred by the transit State shall, at its request, be reimbursed by the Contracting State of destination.

Article 20

CONDUCT OF PROCCEDINGS

1. In the case of a request for extradition presented by the Kingdom of the Netherlands, the Attorney General of Canada shall conduct the extradition proceedings.

2. In the case of a request for extradition presented by Canada, the competent Dutch authorities shall conduct the extradition proceedings in accordance with Dutch law, without further representation of Canada.

Article 21

ENTRY INTO FORCE

1. This Treaty shall enter into force on the first day of the second month following the date on which the Contracting States shall have notified each other that their legal requirements have been complied with.

2. On its entry into force this Treaty shall, as between Canada and the Kingdom of the Netherlands, terminate and replace the Treaty between Great Britain and the Netherlands for the Mutual Surrender of Fugitive Criminals, signed at London, September 26, 1898. However, any request for extradition presented prior to the entry into force of this Treaty shall still be governed by the provisions of the Treaty of 1898.

3. This Treaty shall apply to any request presented after its entry into force, even if the offence for which extradition is requested was committed before that date.

4. If the notification from the Kingdom of the Netherlands under paragraph 1 does not provide for application of this Treaty to the Kingdom as a whole, the Treaty of 1898 will remain in force between Canada and the Kingdom of the Netherlands in respect of that part of the Kingdom of the Netherlands specified in the notification.

Article 22

TERMINATION

1. Either Contracting State may terminate this Treaty at any time by written notification to the other State. The termination shall be effective one year after the date of receipt of such notice.

2. Termination of this Treaty by the Kingdom of the Netherlands may be limited to one of its constituent parts.

IN WITNESS WHEREOF, the representatives of the two Governments, being authorized for this purpose, have signed this Treaty.

Done at Montréal this 13th of October 1989 in duplicate in the English, French and Dutch languages, each version being equally authentic.

FOR THE GOVERNMENT OF CANADA

Doug Lewis

FOR THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS

F. Korthals Altes

Dick Th. F. The