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

Treaty between the Government of Canada and the Government of the Republic of Austria on Extradition [2000] CATSer 17 (1 October 2000)

E103054 - CTS 2000 No. 15

TREATY BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA ON EXTRADITION

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA, hereby referred to as "the Contracting Parties";

DESIRING to provide for more effective co-operation in the suppression of crime and to facilitate the relations between the two States in the area of extradition,

REAFFIRMING their respect for each other's legal systems and judicial institutions,

HAVE AGREED as follows:

ARTICLE 1

Obligation to Extradite

Each Contracting Party agrees to extradite to the other, in accordance with the provisions of this Treaty, persons who are wanted for prosecution or the imposition or enforcement of a sentence or an order for deprivation of liberty in the Requesting State for an extraditable offence.

ARTICLE 2

Extraditable Offences

1. For the purposes of this Treaty, extradition shall be granted for conduct which constitutes an offence under the laws of both Contracting Parties that is punishable by imprisonment 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 or other deprivation of liberty, extradition shall be granted if a period of at least six months of imprisonment or other deprivation of liberty remains to be served.

2. If extradition is granted for an offence described in paragraph 1 of this Article, extradition may also be granted for other offences which are punishable under the laws of both Contracting Parties but, by reason of the penalty prescribed or the period of deprivation of liberty imposed and remaining to be served, would not otherwise be extraditable pursuant to this Treaty.

3. For the purpose of this Article:

a) an offence shall be an extraditable offence whether or not the laws of the Contracting Parties place the offence within the same category or denominate the offence by the same terminology; and

b) the totality of the acts or omissions alleged against the person whose extradition is requested shall be taken into account in determining whether the conduct would amount to an extraditable offence in the Requested State and it shall not matter whether, under the laws of both Contracting Parties, the offence comprises the same elements.

4. Extradition may be granted irrespective of when the offence in relation to which extradition is requested was committed, provided that the conduct:

a) was an offence in the Requesting State at the time it occurred; and

b) would, if it had occurred in the Requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State.

5. If the offence has been committed outside the territory of the Requesting State, extradition shall be granted where the person sought is a national of the Requesting State or the law of the Requested State provides for the exercise of jurisdiction over 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.

6. An offence against a law relating to taxation, customs duties, foreign exchange control or any other revenue matter (fiscal offence), is an extraditable offence. Provided that the conduct for which extradition is sought is an offence in the Requested State, 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 3

Grounds for Refusal

1. Extradition shall not be granted in any of the following circumstances:

a) if the offence for which extradition is requested is regarded by the Requested State as a political offence. The taking or attempted taking of the life of a Head of State or a member of his or her family shall not be considered to be a political offence;

b) if 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 belief;

c) if the offence for which extradition is requested constitutes an offence under military law which is not an offence under ordinary criminal law;

d) if final judgement has been rendered in the Requested State in respect of the offence for which extradition is requested; or

e) if the person whose extradition is requested cannot, according to the laws of the Requesting State, be prosecuted or punished by reason of prescription.

2. Extradition may be refused in any of the following circumstances:

a) if the person whose extradition is requested is a national of the Requested State. Where the Requested State refuses to extradite a national of that State it shall, if the other State so requests, 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;

b) if the offence for which extradition is requested is subject to the jurisdiction of the Requested State and that State will prosecute that offence;

c) if the offence for which the extradition is requested is punishable by death under the law of the Requesting State;

d) if the person sought has been convicted in absentia; or

e) if final judgment has been rendered in a Third State in respect of the offence for which extradition is requested, provided that:

(i) the judgment imposed in the State of the commission of the offence resulted in the person's acquittal; or

(ii) the term of imprisonment or other deprivation of liberty to which the person was sentenced has been completely enforced or has been the subject of a pardon or an amnesty.

ARTICLE 4

Channels of Communication

Requests for extradition and any subsequent correspondence shall be communicated between the Ministries of Justice of the Contracting Parties; however, the use of the diplomatic channel is not excluded.

ARTICLE 5

Request and Supporting Documents

1. The request for extradition shall be in writing and in all cases shall be supported by:

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

b) the text of the provisions of the law of the Requesting State applicable to the offence, including any law relating to prescription and, where the offence occurred outside the territory of the Requesting State, any law relating to jurisdiction.

2. In the case of a person accused or sought for prosecution, the request shall be accompanied by:

(a) the original or a certified copy of the order of arrest or of any document having the same force and effect, issued by a judge of the Requesting State; and

(b) in the event that the law of the Requested State so requires, evidence that would justify committal for trial of the person sought, if the conduct had occurred in the Requested State. For that purpose, a summary of the facts of the case setting out the evidence, including evidence of the identity of the offender, shall be admitted in evidence as proof of the facts contained therein provided that the judge or prosecutor that produces it, certifies that the evidence described in the summary was obtained in accordance with the law of the Requesting State. The summary may include any report, statement, reproduction or other useful documentation. The summary may contain evidence gathered in the Requesting State or elsewhere and shall be admitted in evidence whether or not such evidence would otherwise be admissible under the law of the Requested State.

3. In the case of a person sought for the enforcement of a judgment, the request shall be accompanied by:

a) a certified copy of the judgment and a confirmation that it has final and binding effect;

b) a description of the conduct for which the person sought was convicted, where the judgment or the warrant of arrest does not describe this conduct; and

c) if the judgment covers only the conviction, a warrant of arrest issued by a judge of the Requesting State; or

d) if the judgment covers both conviction and sentence, a statement showing how much of the sentence has not been served.

4. All documents submitted in accordance with this Treaty shall be in, or accompanied by a translation into, an official language of the Requested State. Any translation of documents submitted in support of a request for extradition shall be admitted for all purposes in extradition proceedings.

5. All documents and certified copies thereof submitted in support of a request for extradition and appearing to have been certified or issued by a judge, a prosecutor or a public official of the Requesting State shall be admitted as evidence 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.

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

ARTICLE 6

Additional Information

If the Requested State considers that the documentation furnished in support of a request for extradition is not sufficient to enable it to make a decision under this Treaty, that State shall request that additional information be furnished within such time as it specifies.

ARTICLE 7

Simplified Extradition

1. Extradition of a person sought may be granted pursuant to the provisions of this Treaty, notwithstanding that the requirements of Article 5 paragraph 1, 2 and 3 have not been complied with, provided that the person sought consents to an order for extradition being made.

2. Article 13 shall apply in such cases unless the Requested State, before surrender, states that the rule of speciality shall not apply.

ARTICLE 8

Provisional Arrest

1. In cases of urgency, a Contracting Party may apply through the facilities of the International Criminal Police Organisation (INTERPOL) or through a channel established by Article 4 for the provisional arrest of the person sought. The application may be transmitted by any means affording a record in writing.

2. The application for provisional arrest shall include:

a) information concerning the identity, and if available, nationality, probable location of the person sought, and a physical description;

b) a statement that extradition will be requested;

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

d) a statement indicating that a warrant of arrest exists or a conviction was pronounced, with date, place and issuing authority; and

e) a statement indicating the maximum period of deprivation of liberty that may be imposed or that was imposed and, where applicable, that remains to be served.

3. On receipt of an application for provisional arrest the Requested State shall, subject to its law, take necessary steps to secure the arrest of the person sought and the Requesting State shall be promptly notified of the result of this request.

4. Provisional arrest shall be terminated if the Requested State has not received the request for extradition within sixty (60) days after arrest. The authorities of the Requested State, insofar that it is permitted by the law of that State, may extend that period for the reception of the documents referred to in Article 5. However, the person sought may be granted provisional release at any time, subject to the conditions deemed necessary to ensure that the person does not abscond.

5. The expiry of the period provided for in paragraph 4 does not preclude arrest and extradition if a request for extradition is subsequently received.

ARTICLE 9

Conflicting 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 Requested State shall have regard to all relevant circumstances and, in particular, the relative seriousness of the offences if the requests relate to different offences, the time and place of commission of each offence, the respective dates of the requests, the nationality of the person, the habitual place of residence of the person, and the possibility of re-extradition to a Third State.

ARTICLE 10

Decision and Surrender

1. The Requested State shall, as soon as a decision on the request for extradition has been made, communicate that decision to the Requesting State. Reasons shall be given for any complete or partial rejection of an extradition request.

2. Where extradition is granted, the Requested State shall inform the Requesting State of the length of time for which the person sought was detained in custody with a view to extradition.

3. Where extradition is granted, the Requested State shall surrender the person from a point of departure in its territory convenient to the Requesting State.

4. The Requesting State shall remove the person from the Requested State within such reasonable period as the Requested State specifies and, if the person is not removed within that period, the Requested State may refuse to extradite that person for the same offence.

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

ARTICLE 11

Postponed or Temporary Surrender

1. When the person sought is being proceeded against or is serving a sentence in the Requested State for an offence other than that for which extradition is requested, the Requested State may, after having made its decision on the request, surrender or postpone surrender until the conclusion of the proceedings or the service of the whole or any part of the sentence imposed. The Requested State shall inform the Requesting State of any postponement.

2. To the extent permitted by its law, where extradition of a person has been granted, the Requested State may temporarily surrender the person sought for the purpose of prosecution to the Requesting State in accordance with conditions to be determined between the Contracting Parties.

ARTICLE 12

Surrender of Property

1. When a request for extradition is granted, the Requested State shall, so far as its law allows, hand over to the Requesting State all articles, including sums of money:

a) which may serve as proof of the offence; or

b) which have been acquired by the person sought as a result of the offence and are in his or her possession.

2. If the articles in question are liable to seizure or confiscation in the territory of the Requested State, the latter may, in connection with pending proceedings, temporarily retain them or hand them over on condition that they are returned.

3. These provisions shall not prejudice the rights of the Requested State or of any persons other than the person sought. When these rights exist, the articles shall, on request, be returned to the Requested State without charge as soon as possible after the end of the proceedings.

4. The property mentioned in paragraph 1 of this Article shall be surrendered even if extradition having been granted, cannot be carried out owing to the death or escape of the person sought.

ARTICLE 13

Rule of Speciality

1. Subject to paragraph 4 of this Article, a person extradited under this Treaty shall not be detained or prosecuted, nor be subject to any other restriction of personal liberty in the Requesting State for any offence committed or other matter arising before the surrender other than:

a) an offence for which extradition was granted; or

b) any other extraditable offence if the Requested State consents.

2. A request for the consent of the Requested State under this Article shall, upon the request of the Requested State, be accompanied by the documents mentioned in Article 5 as well as a record of any statement made by the extradited person in respect of the offence concerned.

3. 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.

4. Paragraph 1 of this Article shall not apply if the person extradited has had an opportunity to leave the Requesting State and has not done so within forty-five (45) days of final discharge in respect of the offence for which that person was extradited or if the person has voluntarily returned to the Requesting State after having left it.

ARTICLE 14

Re-extradition to a Third State

1. Where a person has been surrendered to the Requesting State, that State shall not extradite the person to any Third State for an offence committed before that person's surrender, unless:

a) the Requested State consents to the extradition; or

b) the person has had an opportunity to leave the Requesting State and has not done so within forty-five (45) days of final discharge in respect of the offence for which that person was surrendered by the Requested State or if the person has voluntarily returned to the Requesting State after having left it.

2. The Requested State may request the production of the documents submitted by the Third State in relation to any consent pursuant to sub-paragraph 1(a) of this Article.

ARTICLE 15

Transit

1. To the extent permitted by its law, transit through the territory of one of the Contracting Parties shall be granted on a request in writing by the other Contracting Party. The request for transit may be transmitted by any means affording a record in writing and shall contain the information referred to in Article 8 paragraph 2.

2. No authorization for transit shall be necessary when air travel is used and no landing is scheduled in the territory of the transit State. In the case of an unscheduled landing that State may require the request for transit provided for in paragraph 1. The transit State shall detain the person in transit until the request is received and the transit is carried out, provided that the request is received within seventy-two (72) hours after the unscheduled landing.

ARTICLE 16

Expenses

1. The Requested State shall make all necessary arrangements for and meet the costs of any proceedings arising out of a request for extradition, including a prosecution as a result of a refusal to grant 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 a person nominated by the Requesting State.

3. The Requesting State shall bear the expenses incurred in conveying the person from the territory of the Requested State.

ARTICLE 17

Conduct of Proceedings

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

2. In the case of a request for extradition presented by the Canadian authorities, the extradition proceedings shall be conducted in accordance with Austrian law.

ARTICLE 18

Entry into Force and Termination

1. This Treaty is subject to ratification. The instruments of ratification shall be exchanged at Vienna as soon as possible.

2. This Treaty shall enter into force on the first day of the third month following the month in which the instruments of ratification have been exchanged.

3. Subject to paragraph 4, on entry into force of this Treaty, the Extradition Agreement between Canada and the Republic of Austria, signed at Ottawa on May 11, 1967, shall cease to have effect.

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 governed by the provisions of the Agreement of 1967, referred to in paragraph 3.

6. Either Contracting Party may terminate this Treaty at any time by giving written notice to the other Party, through diplomatic channels. The termination shall be effective six months following the date on which such notice was received.

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

DONE at Ottawa this 5th day of October 1998, in duplicate, in the English, French and German languages, each version being equally authentic.

FOR THE GOVERNMENT OF CANADA

A. Anne McLellan

FOR THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA

Nikolaus Michalek