Extradition

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PART 1 - PRELIMINARY
1 Short title
2 Commencement
3 Purpose
4 Interpretation
5 Extradition offence
6 Extradition objection

PART 2 - EXTRADITION FROM TUVALU—GENERAL PROVISIONS
DIVISION 1—GENERAL
7 Application of Part 2
8 Issue of provisional arrest warrant
9 Arrest and remand on provisional arrest warrant
10 Release from remand
11 Authority to proceed
12 Arrest and remand on authority to proceed
13 Consent to surrender
14 Extradition proceedings
15 Conduct of extradition proceedings
16 Determination whether person may be surrendered
17 Supporting documents
18 Review of magistrate's decision by High Court
19 Surrender determination by Prime Minister
20 Surrender warrant
21 Temporary surrender warrant
22 Execution of surrender warrant

PART 3 - EXTRADITION FROM TUVALU TO COMMONWEALTH COUNTRIES
23 Procedure applying to extradition to Commonwealth countries
24 Evidentiary requirements for Commonwealth countries
25 The record of the case
26 Commonwealth countries for purpose of Constitution of Tuvalu

PART 4 - EXTRADITION FROM TUVALU TO PACIFIC ISLAND COUNTRIES—BACKING OF WARRANTS PROCEDURE
27 Procedure applying to extradition to Pacific Island countries
28 Provisional arrest warrant
29 Arrest and remand on provisional arrest warrant
30 Endorsement of warrant
31 Arrest and remand on endorsed warrant.
32 Release from remand
33 Extradition proceedings
34 Conduct of extradition proceedings
35 Consent to surrender
36 Determination whether person should be surrendered
37 Review of magistrate's decision
38 Surrender warrant
39 Temporary surrender warrant
40 Execution of surrender warrant

PART 5 - EXTRADITION FROM TUVALU TO TREATY COUNTRIES
41 Procedure applying to extradition to treaty countries
42 Part 2 applies subject to treaty

PART 6 - EXTRADITION FROM TUVALU TO COMITY COUNTRIES
43 Procedure applying to extradition to comity countries
44 When comity country an extradition country
45 Limitation on extradition proceedings
46 Other modifications of Part 2

PART 7 - GENERAL PROVISIONS RELATING TO SEARCH, SEIZURE AND TRANSIT
47 Search and seizure on arrest without a warrant
48 Search and seizure warrants
49 Return etc of seized property
50 Arrest of persons escaping fromcustody
51 Arrest of person released on bail
52 Transit

PART 8 - EXTRADITION TO TUVALU
53 Surrendered persons to be brought into Tuv
54 Treatment of person surrendered to Tuvalu
55 Persons temporarily surrendered to Tuvalu
56 Evidence for purposes of surrender of persons to Tuvalu

PART 9 – MISCELLANEOUS
57 Taking of evidence at request of another country
58 Prosecution, instead of extradition, of citizens of Tuvalu
59 Provision of evidence for prosecution by other countries
60 Surrender for purposes of trial only
61 Regulations
62 Transitional
63 Exclusion of other laws

SURRENDER WARRANT – EXTRADITION TO PACIFIC ISLAND COUNTRY

TEMPORARY SURRENDER WARRANT – EXTRADITION TO PACIFIC ISLAND COUNTRY

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(b) to facilitate the making of requests for extradition by Tuvalu to other countries; and

(1) In this Act, unless the context otherwise requires: "citizen of Tuvalu" has the meaning given by the Citizenship Act;

"comity country" means a country other than a Commonwealth country, a Pacific Island country or a treaty country;

(b) a territory for the international relations of which a country is responsible; and

"endorsed warrant" means a warrant that has been issued in a Pacific Island country and endorsed under section 30;

(d) a comity country certified by the Prime Minister to be an extradition country for the purpose of a particular extradition request.

"extradition request" means a request in writing by a country for the surrender of a person to the country;

(a) to which the country and Tuvalu are parties (whether or not any other country is also a party); and

(b) that relates wholly or partly to the surrender of persons accused or convicted of offences;

"foreign escort officer" means a representative of the country to whom a person is to be surrendered who is authorised by that country to escort the person from Tuvalu to that country;

"magistrate" means a person appointed as a magistrate under the Magistrates Courts Act;

"original warrant" means a warrant issued in a Pacific Island country for the arrest of a person;

"political offence", in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include:

(i) that is constituted by conduct of a kind referred to in a multilateral treaty to which Tuvalu is a party; and

(ii) threatening or attempting to commit, or participating as an accomplice in, murder, kidnapping or other attack on the person or liberty,

of the head of State, head of Government or Minister of the Government of the country or a member of his or her immediate family; or

(d) any other offence that Tuvalu and the other country have agreed will not be treated as a political offence for the purposes of extradition;

"prison" includes a gaol, police cell or other place where a person is ordered under this Act to be detained;

(a) where the expression is used in Part 2—a warrant, in accordance with Form 1 in Schedule 4, issued under section 8; or

(b) where the expression is used in Part 4—a warrant, in accordance with Form 2 in Schedule 4, issued under section 2;.

"requesting country" means a country that is seeking the surrender of a person from Tuvalu;

"specialty undertaking" means an undertaking by a requesting country about the treatment of a person whose surrender is sought by the requesting country;

"surrender offence" means an offence for which surrender is sought; "surrender warrant" means:

(a) where the expression is used in Part 2 — a warrant, in accordance with Form 3 in Schedule 4, issued under section 13 or 19; or

(b) where the expression is used in Part 4—a warrant, in accordance with Form 4 in Schedule 4, issued under section 35 or 36;

(a) where the expression is used in Part 2—a warrant, in accordance with Form 5 in Schedule 4, issued under section 21; or

(b) where the expression is used in Part 4—a warrant, in accordance with Form 6 in Schedule 4, issued under section 39;

"treaty" includes a convention, protocol, or agreement between 2 or more countries.

"writing" includes facsimile, electronic mail and any other means of communication that can be reproduced in printed form.

(a) it is an offence against a law of the requesting country for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of 1 year or more; and

(b) the conduct that constitutes the offence, if committed in Tuvalu, would constitute an offence (however described) in Tuvalu for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of 1 year or more.

(2) In determining whether conduct constitutes an offence, regard may be had to only some of the acts and omissions that make up the conduct.

(3) In determining the maximum penalty for an offence for which no statutory penalty is imposed, regard shall be had to the level of penalty that can be imposed by any court in the requesting country for the offence.

(a) it is an offence against a law of the requesting country relating to taxation, customs duties or other revenue matters or relating to foreign exchange control; and

There is an extradition objection to a request for the surrender of a person if:

(b) there are substantial grounds for believing that surrender of the person is sought for the purpose of prosecuting or punishing the person because of his or her race, religion, nationality, political opinions, sex or status, or for a political offence in the requesting country; or

(c) on surrender, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, because of his or her race, religion, nationality, political opinions, sex or status; or

(d) the offence is an offence under the military law, but not also under the ordinary criminal law, of Tuvalu; or

(e) final judgement has been given against the person in Tuvalu, or in a third country, for the offence; or

(f) under the law of the requesting country or Tuvalu, the person has become immune from prosecution or punishment because of lapse of time, amnesty or any other reason; or

(g) the person has already been acquitted or pardoned in the requesting country or Tuvalu, or punished under the law of that country or Tuvalu, for the offence or another offence constituted by the same conduct as the extradition offence; or

(h) the judgment has been given in the person's absence and there is no provision in the law of the requesting country entitling the person to appear before a court and raise any defence the person may have.

PART 2 - EXTRADITION FROM TUVALU—GENERAL PROVISIONS
DIVISION 1—GENERAL

(1) This Part sets out the procedure that is to apply to requests for the extradition from Tuvalu to other countries of persons accused or convicted of extradition offences in other countries.

(i) a person wanted for surrender is, or is believed to be, in or on his or her way to Tuvalu; and

(ii) the requesting country intends to make a formal request for the extradition of the person; and

(b) an application is made to a magistrate for a provisional arrest warrant; then the magistrate shall issue the provisional arrest warrant for the person if:

(e) the magistrate is satisfied that the request is made by an extradition country.

(a) a copy of the warrant for the arrest of the person issued in the requesting country; and

(d) the text of the law creating the offence or, if the offence is not created by statute, a statement of the offence; and

(e) the text of the law of the requesting country that prescribes the penalty or, if the penalty is not prescribed by statute, a statement of the penalty that can be imposed.

(1) A person arrested under a provisional arrest warrant shall be brought before a magistrate as soon as practicable.

(b) if the magistrate is satisfied that the person is unlikely to abscond— remand the person on bail;

(a) has the same powers in relation to recognisances and reporting conditions as he or she has under the criminal laws of Tuvalu; and

(b) may order that the person's passport and other travel documents be surrendered to the magistrate until the extradition proceedings in relation to the person are concluded.

(4) A person shall not be remanded in custody or on bail for a period longer than 42 days.

(b) give a copy of the authority to proceed, the extradition request and the documents on which the issue of the provisional arrest warrant is based to the Prime Minister and the person.

(6) If the Prime Minister considers that the request for extradition of the person for the offence will not be granted, either because of an extradition objection or because of a matter mentioned in section16, he or she shall order:

(ii) if the extradition treaty between Tuvalu and the requesting country provides for another period – for that period after the day on which the person was arrested; and

(b) the Prime Minister has not issued an authority to proceed, the person shall be brought before a magistrate.

(2) The magistrate may remand the person, in custody or on bail, for a further period of not more than 42 days if the magistrate is satisfied that an authority to proceed will be issued within that period.

(iii) there is nothing in section 19 or any other law that would preclude surrender of the person; and

(d) give a copy of the authority to proceed and the extradition request to the person.

(2) If an authority to proceed is received by a magistrate in relation to a person who has not been arrested under a provisional arrest warrant, the magistrate shall issue a warrant for the person's arrest.

(1) A person who is arrested under a warrant issued under section 11 shall be brought before a magistrate as soon as practicable.

(b) if the magistrate is satisfied that the person is unlikely to abscond— remand the person on bail;

for the period that is necessary for proceedings under section 13 (dealing with consent to surrender) or 14 (dealing with extradition proceedings), or both, to be conducted.

(a) has the same powers in relation to recognisances and reporting conditions as he or she has under the criminal laws of Tuvalu; and

(b) may order that the person's passport and other travel documents be surrendered to the magistrate until the extradition proceedings in relation to the person are concluded.

(4) If a magistrate remands the person in custody after the person has made an application for bail, the person is not entitled to apply to any other magistrate for release on bail during that remand, unless the first magistrate is no longer available.

(1) At any time the person may tell a magistrate that the person consents to being surrendered to the requesting country for the extradition offence for which that country seeks his or her surrender.

(b) the requesting country has asked that the person also be surrendered for another offence that is not an extradition offence,

the magistrate shall ask the person whether the person also consents to being surrendered for that other offence.

(a) the person informs the magistrate that he or she consents to being surrendered; and

(b) the magistrate is satisfied that the consent was given voluntarily; the magistrate shall tell the person that the effect of consenting will be that:

(c) the person will be committed to prison without any extradition proceedings to determine whether the person should be surrendered for an extradition offence; and

(d) after the Prime Minister issues a surrender warrant, the person will be surrendered to the requesting country.

(b) tell the Prime Minister in writing that the person has been committed to prison and the offence for which the person has consented to be surrendered.

(a) the Prime Minister has issued an authority to proceed for an extradition offence in relation to a person; and

(c) an application is made to a magistrate by or on behalf of the person or the requesting country for extradition proceedings to be conducted in relation to the person; and

(d) the magistrate considers that the person and the requesting country have had reasonable time since the person received a copy of the extradition request to prepare for the proceedings,

the magistrate shall conduct proceedings to determine whether the person should be surrendered for the extradition offence for which surrender of the person is sought.

(1) Extradition proceedings shall be conducted in the same manner as criminal proceedings. In particular, the rules that apply in criminal proceedings to the following matters apply to extradition proceedings:

(f) contempt of court, privilege and other matters relating to the administration of courts;

(2) In the proceedings, the person is not entitled to bring, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which extradition is sought.

(1) The magistrate shall not order that a person be held in custody for surrender to the requesting country unless the magistrate is satisfied:

(f) that surrender should not be refused because the person sought has established an extradition objection.

(2) If the magistrate determines that the person be held in custody for surrender, the magistrate shall:

(a) issue a warrant, ordering that the person be committed to prison to await the Prime Minister's decision on surrender; and

(b) tell the person that he or she may, within 15 days after the day on which the order is made, seek a review of the order under subsection 18 (1); and

(a) the magistrate determines that the person be held in custody for surrender for an extradition offence; and

(b) the requesting country has asked that the person also be surrendered for another offence that is not an extradition offence:

the magistrate shall ask the person whether the person also consents to being surrendered for that other offence.

(4) If the magistrate determines that the person should not be surrendered to the requesting country, the magistrate shall:

(b) tell the Prime Minister in writing of the order and of the magistrate's reasons for determining that the person should not be surrendered.

(1) In paragraph 16(1)(d), "supporting documents", in relation to an extradition offence, means:

(a) as accurate a description as possible of the person sought, together with any other information that may help to establish the identity and nationality of the person; and

(b) the text of the law creating the offence or, if the offence is not created by statute, a statement of the offence; and

(c) the text of the law of the requesting country that prescribes the penalty or, if the penalty is not prescribed by statute, a statement of the penalty that can be imposed; and

(d) a statement of the acts and omissions that constitute the offence, and details of the time and place the offence was committed; and

(e) if the person is accused of the offence — a duly authenticated warrant issued by the requesting country for the arrest of the person for the offence, or a duly authenticated copy of the warrant; and

(f) if the person has been convicted of the offence — duly authenticated documents that provide evidence of:

the magistrate shall adjourn the proceedings for a reasonable period to allow the deficiency to be remedied.

(4) A document that is sought by or on behalf of the requesting country to be admitted in the proceedings is duly authenticated if:

(a) it purports to be signed or certified by a judge, magistrate or officer in or of the requesting country; and

(b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:

(i) in any case—of the requesting country or of a Minister, Department of State or Department or officer of the Government of that country; or

(ii) if the extradition country is a colony, territory or protectorate—of the person administering the Government of that country or of any person administering a Department of the Government of that country.

(5) Nothing in this section prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of Tuvalu.

(1) If a magistrate orders that a person be held until a surrender determination is made or refused, the person may apply to the High Court for a review of the order.

(2) If a magistrate orders that a person be released, or that the person be surrendered for some offences only, the requesting country may apply to the High Court for a review of the order.

(3) The application shall be made within 15 days after the day the magistrate makes the order.

(4) The High Court shall have regard only to the material that was before the magistrate.

(5) The High Court may, by order, confirm or quash the order of the magistrate and order that the person be held for surrender or released.

(6) If the High Court orders that the person be held until a surrender determination is made or refused, the Court shall include in its judgment a statement specifying the offence and shall:

(a) if the person is not in custody—by warrant commit the person to prison until the Prime Minister has made a decision under section 19; or

(b) if the person is in custody—order that the person remain in custody until the Prime Minister has made a decision under section 19.

(7) If the High Court orders that the person be released, the person shall be released accordingly.

(a) a magistrate has reported to the Prime Minister that a person should be held for surrender; and

(b) the period during which an appeal may be lodged has ended and no appeal was lodged or, on appeal, the High Court ordered that the person be held for surrender,

the Prime Minister shall make a final decision whether the person should be surrendered.

(i) the requesting country is not a country with which Tuvalu has a bilateral treaty containing a specialty undertaking; or

(ii) the law of the requesting country does not contain a provision prohibiting prosecution for an offence other than the one for which the person is surrendered; or

(c) the offence for which surrender has been ordered is punishable by death in the requesting country but not in Tuvalu and the requesting country has not given a sufficient undertaking that the penalty either will not be imposed or, if imposed, will not be carried out; or

(d) a prosecution for the offence for which surrender has been ordered is pending against the person in Tuvalu; or

(e) the offence for which surrender has been ordered was committed outside the territory of the requesting country and the law of Tuvalu does not provide for jurisdiction over an offence of that kind committed in similar circumstances outside Tuvaluan territory; or

(f) the offence for which surrender has been ordered is regarded by Tuvalu as having been committed wholly or partly within Tuvalu; or

(g) the person has been sentenced, or would be liable to be tried or sentenced, in the requesting country by an extraordinary or ad hoc court or tribunal; or

(h) the person has been subjected in the requesting country to torture or cruel, inhuman or degrading treatment or punishment; or

(i) Tuvalu's national interest, including its interests in effective international co-operation to combat crime; and

(3) For the purposes of paragraph (2)(a), the requesting country is taken to have given a specialty undertaking if it undertakes that the person will not, without having the opportunity of leaving the requesting country:

(ii) an offence of which the person could be convicted on proof of the facts constituting the surrender offence, for which the penalty is no greater than the penalty for the surrender offence; or

(b) be detained in the requesting country for surrender to a third country for an offence committed before surrender to the requesting country,

unless the Prime Minister consents to the trial or the surrender to the third country.

(4) Tuvalu shall not refuse to surrender a person because the person may be subjected to torture or cruel, inhuman or degrading treatment or punishment if the requesting country and Tuvalu have ratified:

(a) the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, being the convention of that title that was adopted by the General Assembly of the United Nations on 10 December 1984; or

(5) If the Prime Minister decides that the person is to be surrendered to the requesting country, the Prime Minister shall issue a surrender warrant or a temporary surrender warrant for the person.

(6) If the Prime Minister decides that the person is not to be surrendered to the requesting country, the Prime Minister shall in writing order that the person be released.

(i) transport the person from the place where the police officer takes custody of the person to another place within Tuvalu for the purpose of handing the person over to the custody of a foreign escort officer; and

(ii) hold the person in custody for so long as is necessary to enable the person to be handed over to the foreign escort officer; and

(2) If the person is serving a custodial sentence, or has been admitted to bail, in Tuvalu for an offence committed in Tuvalu, the surrender warrant shall not be executed until:

(1) The Prime Minister may issue a temporary surrender warrant instead of a surrender warrant if:

(b) surrender is sought for an offence of which the person is accused but of which the person has not been convicted; and

(d) the Prime Minister is satisfied that adequate provision has been made for the travel of the person to the requesting country and for his or her return to Tuvalu.

(ii) hold the person in custody for so long as is necessary to enable the person to be handed over to the foreign escort officer; and

(a) has been returned to Tuvalu after trial and sentence in the requesting country; and

the Prime Minister shall issue a surrender warrant for the surrender of the person to the requesting country, unless the Prime Minister is satisfied that it would be unjust or oppressive to surrender the person because of changed circumstances in the requesting country.

(4) Any time the person spends in custody in the requesting country as a result of the temporary surrender is taken to be time spent in custody in Tuvalu for the purpose of completing the sentence for which the person was in custody in Tuvalu.

(a) time spent in custody in the requesting country is taken into account as mentioned in subsection (3); and

the Prime Minister shall tell the requesting country that the undertakings given by that country about the speedy trial and return of the person no longer apply.

(1) If a person is not surrendered under a surrender warrant within 2 months after:

(b) if the person is serving a custodial sentence, or has been admitted to bail, in Tuvalu—the person has been released from custody or the recognisance has been discharged,

the person may apply to a magistrate to be released from custody. The person shall tell the Prime Minister in writing of the application.

(b) there is no reasonable cause for delay in surrendering the person, the magistrate shall order that the person be released from custody.

(a) it would have been a danger to the person's life, or prejudicial to the person's health, to surrender the person; or

(b) there was no suitable means of transporting the person to the requesting country, and all reasonable steps were taken to obtain suitable transport; or

(c) there was delay by a country in responding to a request by the requesting country for permission to transport the person, and all reasonable steps were taken to obtain the permission; or

(d) because of the remoteness of the requesting country, it would be unreasonable to expect the person to have been surrendered within the period mentioned in subsection (1).

The procedures set out in Part 2 apply to the extradition of a person from Tuvalu to a Commonwealth country.

The evidentiary requirements set out in section 26 (the record of the case scheme) apply to all extradition proceedings conducted at the request of a Commonwealth country.

(a) a document containing a recital of the evidence acquired to support the request; and

(b) an authenticated copy, reproduction or photograph of all exhibits and documentary evidence.

(2) In addition to any evidentiary requirements in Part 2, a magistrate shall not determine that a person should be surrendered to a requesting country unless a record of the case is produced for the surrender offence.

(a) an affidavit of an officer of the authority that investigated the matter, stating that:

(i) the record of the case was prepared by him or her, or under his or her direction; and

(ii) the evidence in the record of the case has been preserved for use in the person's trial; and

(b) a certificate of the Prime Minister of the requesting country stating that, in his or her opinion, the record of the case discloses the existence of evidence that is sufficient under the law of the requesting country to justify a prosecution in the requesting country.

Each country listed in Schedule 1 is declared to be a Commonwealth country for the purpose of the definition of "Commonwealth country" in the Constitution of Tuvalu.

PART 4 - EXTRADITION FROM TUVALU TO PACIFIC ISLAND COUNTRIES—BACKING OF WARRANTS PROCEDURE

This Part sets out the procedure that is to apply to the extradition from Tuvalu to Pacific Island countries of persons accused or convicted of extradition offences in those countries. The procedure is known as "backing of warrants".

(a) an application is made to a magistrate on behalf of a Pacific Island country for the issue of a warrant for the arrest of a person; and

(i) an original warrant for the arrest of the person has been issued in the Pacific Island country but the warrant is not available in Tuvalu; and

(ii) the person named in the original warrant is, or is suspected of being, in or on his or her way to Tuvalu; and

the magistrate shall issue a provisional arrest warrant for the arrest of the person.

(1) A person arrested under a provisional arrest warrant shall be brought before a magistrate as soon as practicable.

(b) if the magistrate is satisfied that the person is unlikely to abscond— remand the person on bail,

until the Pacific Island country produces the original warrant on which the provisional arrest warrant was based.

(a) has the same powers in relation to recognisances and reporting conditions as he or she has under the criminal laws of Tuvalu; and

(b) may order that the person's passport and other travel documents be surrendered to the magistrate until the extradition proceedings in relation to the person are concluded.

(4) A person shall not be remanded in custody or on bail for a period longer than 28 days.

(a) an application is made to a magistrate on behalf of a Pacific Island country for the endorsement of a warrant issued in the Pacific Island country for the arrest of a person (an "original warrant"); and

(b) the magistrate is told by affidavit that the person named in the original warrant is, or is suspected of being, in or on his or her way to Tuvalu,

the magistrate shall endorse the original warrant to authorise the arrest of the person under the warrant in Tuvalu.

(1) A person who is arrested under an endorsed warrant shall be brought before a magistrate as soon as practicable.

(b) if the magistrate is satisfied that the person is unlikely to abscond— remand the person on bail,

for the period that is necessary for proceedings under section 35 (dealing with consent to surrender) or 36 (dealing with extradition proceedings), or both, to be conducted.

(a) has the same powers in relation to recognisances and reporting conditions as he or she has under the criminal laws of Tuvalu; and

(b) may order that the person's passport and other travel documents be surrendered to the magistrate until the extradition proceedings in relation to the person are concluded.

(4) A person shall not be remanded in custody or on bail for a period longer than 28 days.

(5) If a magistrate remands the person in custody after the person has made an application for bail, the person is not entitled to apply to any other magistrate for release on bail during that remand, unless the first magistrate is no longer available.

(a) a person is on remand in custody or on bail 28 days after the day on which the person was arrested on a provisional warrant; and

(b) an endorsed warrant for the arrest of the person has not been obtained, the person shall be brought before a magistrate.

unless the magistrate is satisfied that the endorsed warrant will be obtained within a particular period that is reasonable in all the circumstances.

(a) a person is on remand in custody or on bail 28 days after the day on which the person was arrested on an endorsed warrant; and

(b) no request has been made under section 33 for extradition proceedings to be conducted,

unless the magistrate is satisfied that a request under section 33 for extradition proceedings to be conducted will be made within a particular period that is reasonable in all the circumstances.

(i) a person has been remanded after being arrested under an endorsed warrant; or

(ii) a person has been remanded after being arrested under a provisional arrest warrant and the original warrant has since been endorsed; and

(b) a request is made to a magistrate by or on behalf of the person or the Pacific Island country for extradition proceedings to be conducted in relation to the person,

the magistrate shall conduct proceedings as soon as practicable to determine whether the person should be surrendered to the Pacific Island country.

(1) A magistrate shall not conduct extradition proceedings unless he or she is satisfied that both the person sought and the Pacific Island country have had reasonable time to prepare for the conduct of the proceedings.

(2) Extradition proceedings shall be conducted in the same manner as criminal proceedings. In particular, the rules that apply in criminal proceedings in relation to the following matters apply to the extradition proceedings:

(f) contempt of court, privilege and other matters relating to the administration of courts;

(3) In the proceedings, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which extradition is sought.

(1) At the proceedings the magistrate shall ask the person if he or she consents to being surrendered.

(a) the person tells the magistrate that he or she consents to being surrendered; and

(b) the magistrate is satisfied that the consent was given voluntarily, the magistrate shall tell the person that he or she will be:

(a) by warrant (a "surrender warrant"), order that the person be surrendered to the Pacific Island country; and

(b) by warrant, order that the person be committed to prison until the person is surrendered to the Pacific Island country.

(a) the person may not bring evidence that the person did not commit the offence; but

(b) the person may bring evidence about the matters mentioned in subsection (2).

(2) The magistrate shall determine that the person should be surrendered unless he or she is satisfied that:

(b) if the offence is one of which the person is accused but not convicted— the accusation was not made in good faith and in the interests of justice; or

(d) it would be unjust, oppressive or too severe a punishment to surrender the person; or

(e) the prison conditions in the requesting country are not substantially equivalent to the minimum standards for imprisonment in Tuvalu.

(3) If the magistrate determines that the person should be surrendered, the magistrate shall:

(a) by warrant (a "surrender warrant"), order that the person be surrendered to the Pacific Island country; and

(b) by warrant, order that the person be committed to prison until the person is surrendered to the Pacific Island country; and

(c) tell the person that he or she may, within 15 days of the day on which the order is made, seek a review of the order under section 37 (dealing with review of the decision); and

(d) record in writing his or her decision and the extradition offence for which the person is to be surrendered; and

(b) surrender is sought for an offence for which the person is accused but not convicted,

the magistrate shall not issue a surrender warrant for the person but shall refer the matter to the Prime Minister to be dealt with under section 39 (temporary surrender warrants).

(5) If the magistrate determines that the person should not be surrendered to the Pacific Island country, the magistrate shall order that the person be released.

(1) If a magistrate makes an order for the surrender of a person, the person may apply to the High Court for a review of the order.

(2) If a magistrate makes an order for the release of a person, the Pacific Island country may apply to the High Court for a review of the order.

(3) The application shall be made within 15 days after the day on which the magistrate makes the order.

(4) The High Court shall have regard only to the material that was before the magistrate.

(5) The High Court may, by order, confirm or quash the order of the magistrate and order that the person be surrendered or released.

(6) If the High Court orders that the person be surrendered, the Court shall include in its judgment a statement specifying the offence and shall:

(a) if the person was remanded on bail—by warrant commit the person to prison until the person is surrendered; or

(b) if the person is in custody—order that the person remain in custody until the person is surrendered.

(b) if the person has been remanded on bail—order that the recognisance be discharged.

(b) require any person who has custody of the person to hand the person over to a police officer; and

(ii) hold the person in custody for so long as is necessary to enable the person to be handed over to the foreign escort officer; and

(2) If the person is serving a custodial sentence, or has been admitted to bail, in Tuvalu for an offence committed in Tuvalu, the surrender warrant shall not be executed until:

(1) The Prime Minister may issue a temporary surrender warrant instead of a surrender warrant if:

(b) surrender is sought for an offence of which the person is accused but of which the person has not been convicted; and

(d) the Prime Minister is satisfied that adequate provision has been made for the travel of the person to the Pacific Island country and for his or her return to Tuvalu.

(ii) hold the person in custody for so long as is necessary to enable the person to be handed over to the foreign escort officer; and

(a) has been returned to Tuvalu after trial and sentence in the Pacific Island country; and

the Prime Minister shall issue a surrender warrant for the surrender of the person to the Pacific Island country, unless the Prime Minister is satisfied that it would be unjust or oppressive to surrender the person because of changed circumstances in the Pacific Island country.

(4) Any time the person spends in custody in the Pacific Island country as a result of the temporary surrender is taken to be time spent in custody in Tuvalu for the purpose of completing the sentence for which the person was in custody in Tuvalu.

(a) time spent in custody in the Pacific Island country is taken into account as mentioned in subsection (3); and

the Prime Minister shall tell the Pacific Island country that the undertakings given by that country about the speedy trial and return of the person no longer apply.

(1) If a person is not surrendered under a surrender warrant within 2 months after:

(b) if the person is serving a custodial sentence, or has been admitted to bail, in Tuvalu—the person has been released from custody or the recognisance has been discharged,

the person may apply to a magistrate to be released from custody. The person shall tell the Prime Minister in writing of the application.

(b) there is no reasonable cause for delay in surrendering the person, the magistrate shall order that the person be released from custody.

(a) it would have been a danger to the person's life, or prejudicial to the person's health, to surrender the person; or

(b) there was no suitable means of transporting the person to the requesting country, and all reasonable steps were taken to obtain suitable transport; or

(c) there was delay by Tuvalu in responding to a request for permission to transport the person, and all reasonable steps were taken to obtain the permission.

The procedures set out in Part 2 apply to the extradition of a person from Tuvalu to a country with which Tuvalu has an extradition treaty.

(a) any limitations, conditions, exceptions or qualifications that are contained in the extradition treaty between Tuvalu and the treaty country; and

[NOTE: Regulations may make any modifications to this Act necessary to give effect to a treaty - see s. 61.]

Subject to section 46, the procedures set out in Part 2 apply to the extradition of a person from Tuvalu to a country other than a Commonwealth country, a Pacific Island country or a treaty country.

[NOTE: These other countries are called "comity countries" — see definition in s.4.]

(b) if an extradition request is received from a comity country that is not specified in the regulations — certify that the country is an extradition country for the purpose of that extradition request.

(2) When the Prime Minister certifies that the country is an extradition country, he or she shall also specify the provisions of this Act that are to apply to the extradition request.

(3) In determining whether a comity country is an extradition country, the Prime Minister shall consider:

Proceedings may not be commenced on a request from a comity country for the surrender of a person unless:

(b) the Prime Minister has certified that the country is an extradition country in accordance with section 44.

When the Prime Minister specifies a comity country as an extradition country, he or she may also modify Part 2 in its application to the country under this Part.

[NOTE: An endorsed warrant is one issued in a Pacific Island country and endorsed under s.30—see definition in s.4.]

(2) If a police officer who arrests a person under this Act has reasonable grounds for suspecting that property in the vicinity of the person:

(a) may be material as evidence in proving an offence for which the warrant was issued; or

(b) has been acquired by the person as the result of the offence for which the warrant was issued,

(b) has reasonable grounds for suspecting that there is on the person, in the clothing that the person is wearing or in or on any property in the vicinity of the person that is under the apparent control of the person, any thing (including a sum of money) that:

(i) may be material as evidence in proving any offence in relation to which the warrant was issued or for which surrender of the person is sought; or

the police officer may search the person, the person's clothing or the property and may seize any thing found as a result of the search.

(4) Subsection (2) does not authorise a police officer to remove, or to require the person to remove, any of the clothing that the person is wearing.

(6) A police officer shall retain in safe keeping any property or thing seized pending a direction from the Prime Minister about how the thing is to be dealt with.

(7) Nothing in this section prevents or restricts the search of a person or of clothing worn by, or of property under the immediate control of, a person after the person is admitted to a prison after having been arrested for an offence.

(8) The powers conferred by this section are in addition to any other powers conferred by law.

(1) If a magistrate is informed by affidavit that there are reasonable grounds for suspecting that there may be in a place:

(a) a thing that may be material as evidence in proving an offence for which a provisional arrest warrant was issued or surrender of a person is sought; or

and the affidavit sets out those grounds, the magistrate may issue a warrant authorising a police officer, with such assistance, and by such force, as is necessary and reasonable:

(e) to enter the place, search the place for a thing of that kind and seize any thing of that kind found in the place.

(a) there has been given to the magistrate by affidavit the further information (if any) that the magistrate requires about the grounds on which the warrant is being sought; and

(b) the magistrate is satisfied that there are reasonable grounds for issuing the warrant.

(a) the purpose for which it is issued, including a reference to the nature of any offence referred to in paragraph (1) (a); and

(b) whether it authorises entry at any time of the day or night or during specified hours of the day or night; and

(d) that it ceases to have effect on a specified day, not being later than 1 month after the day it is issued.

(a) a police officer finds a thing that he or she believes on reasonable grounds to be connected with the offence, but the thing is not of a kind stated in the warrant; and

(b) the police officer believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss or destruction,

(5) The police officer shall retain in safe keeping a thing seized pending any direction from the Prime Minister about how it is to be dealt with.

"place" includes a public place, area of water, premises, vessel, aircraft or vehicle in any part of Tuvalu;

"thing" includes a vessel, aircraft or vehicle.

49 Return etc of seized property

(1) The Prime Minister may direct that any property seized under section 47 or 48 that:

shall be returned to the country that sought the surrender, if a surrender warrant or temporary surrender warrant is issued after extradition proceedings have concluded.

(2) If no surrender warrant has been issued after extradition proceedings have concluded, the Prime Minister shall direct that the property be returned to the person from whom it was seized, unless the Prime Minister is satisfied that the interests of justice in the requesting country require the property to be returned to the requesting country.

(1) A police officer may arrest a person without a warrant if the police officer has reasonable grounds for believing that the person has escaped from custody that was authorised under this Act.

(3) Escaping from custody as mentioned in subsection (1) does not constitute an offence.

(1) A police officer may arrest a person who has been remanded on bail under this Act if the police officer has reasonable grounds for believing that the person has contravened, or is about to contravene, a condition subject to which bail was granted.

(1) The Commissioner of Police shall give permission to a country (the "second country") to transport through the territory of Tuvalu a person who has been surrendered to the second country by a third country if:

(a) the second country asked for transit permission before the person entered Tuvalu; and

(a) a police officer in Tuvalu may assist the foreign escort officer escorting the person; and

(b) the person may be held in custody in Tuvalu until the person's journey can continue.

(3) If it is necessary to hold the person in custody for more than 24 hours, the person shall be brought before a magistrate who may issue a warrant to commit the person to custody.

(1) A person surrendered to Tuvalu for an offence against a law of Tuvalu of which the person is accused or of which the person has been convicted shall be brought into Tuvalu and delivered to the appropriate authorities to be dealt with according to law.

(2) In particular, the person may be remanded in custody or on bail until the person can be brought to trial.

(a) be detained or tried in Tuvalu for an offence that is alleged to have been committed, or was committed, before the person was surrendered, other than:

(ii) another offence (for which the penalty is the same or less) of which the person could be convicted on proof of the conduct constituting the extradition offence; or

(iii) another offence for which the surrendering country consents to the person being detained or tried; or

(b) be detained in Tuvalu for surrender to a third country for trial or punishment for an offence that is alleged to have been committed, or was committed, before the person was surrendered to Tuvalu,

(c) the country that surrendered the person to Tuvalu consents to the person being so detained, and tried or surrendered; or

(a) has not completed a custodial sentence in the surrendering country immediately before being surrendered; or

(b) is a person whom Tuvalu has undertaken to hold in custody and return to the surrendering country,

(c) shall, while travelling to and from, and while in, Tuvalu, be kept in the custody that the Prime Minister orders in writing; and

(e) after the person has been tried—shall be returned to the surrendering country.

(a) a person is held in custody only because of an order of the Prime Minister under subsection (1); and

(b) the surrendering country notifies Tuvalu that the surrendering country no longer requires the person to be returned,

(1) If the Prime Minister intends to seek a person's extradition to Tuvalu, the Prime Minister may, by notice in writing, authorise the taking of evidence for use in any proceedings for the extradition of the person to Tuvalu.

(2) A magistrate may take the evidence of each witness on oath or affirmation and shall:

(a) cause the evidence to be reduced to writing and certify as to the taking of the evidence; and

(3) The person in relation to whom the evidence is being taken is not entitled to be represented while the evidence is being taken.

(1) If another country requests Tuvalu to take evidence for the purpose of criminal proceedings in that country, the Prime Minister may authorise a magistrate to do so.

(2) The magistrate may take the evidence of each witness on oath or affirmation and shall:

(a) cause the evidence to be reduced to writing and certify as to the taking of the evidence; and

(a) a country requests the surrender of a person because of conduct the person engaged in outside Tuvalu; and

(b) the Prime Minister refuses to order the surrender of the person because of a circumstance listed in subsection (2); and

(c) the person would have committed an offence against a law in force in Tuvalu if the person had engaged in the conduct, or equivalent conduct, in Tuvalu at that time,

(b) on surrender, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, because of his or her race, religion, nationality, political opinions, sex or status; or

(c) the person has been subjected in the requesting country to torture or cruel, inhuman or degrading treatment or punishment; or

(d) the judgment has been given in the person's absence and there is no provision in the law of the requesting country entitling the person to appear before a court and raise any defence the person may have; or

(e) the offence for which surrender has been ordered is punishable by death in the requesting country but not in Tuvalu and the requesting country has not given a sufficient undertaking that the penalty either will not be imposed or, if imposed, will not be carried out; or

(f) the person has been sentenced, or would be liable to be tried or sentenced, in the requesting country by an extraordinary or ad hoc tribunal.

(3) For the purpose of the prosecution, the person is taken to have engaged in the conduct in Tuvalu.

(a) considers that there is sufficient evidence in Tuvalu to justify prosecuting the person for the offence; and

(5) A person may be prosecuted whether the person engaged in the conduct before or after the commencement of this Act.

(a) another country has refused to order that a person be surrendered to Tuvalu; but

(b) the country is prepared to prosecute the person for the offence for which Tuvalu sought surrender of the person,

the Prime Minister shall give the other country all available evidence to enable the other country to prosecute the person.

(ii) the person has been subjected in the requesting country to torture or cruel, inhuman or degrading treatment or punishment; or

(b) a magistrate determines under section 36 that a person should not be surrendered because the prison conditions in the requesting country are not substantially equivalent to the minimum standards for imprisonment in Tuvalu,

and the requesting country asks that the person be surrendered for the purposes of trial only, Tuvalu may surrender the person to the other country for the purpose of being tried in the requesting country for the offence for which extradition is sought if:

(d) Tuvalu is satisfied that if the person is convicted the person will be returned to Tuvalu to serve the sentence imposed; and

(e) Tuvalu is satisfied that there is no likelihood that the person will be subjected to torture or cruel, inhuman or degrading treatment or punishment.

(1) The Minister may make regulations, not inconsistent with this Act, prescribing matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(a) amend the lists of countries in the Schedules, but so that a country appears in only one Schedule; and

(3) A reference to a country listed in a Schedule includes a reference to a country listed in the Schedule because of regulations made under paragraph (2)(a).

"current extradition request" means an extradition request under the old Act that has not been finalised.

"old Act" means the Imperial Acts known as the Extradition Acts, 1870 to 1935 as in force in Tuvalu immediately before the commencement of this Act.

(2) In spite of the fact that the old Act no longer has effect in Tuvalu, a current extradition request that was started before the commencement of this Act is to continue to be dealt with under the old Act.

(3) However, nothing in this section prevents a country from making a fresh extradition request under this Act in place of a current extradition request.

(1) This Act replaces all former laws relating to extradition in force in Tuvalu immediately before the commencement of this Act, whether those laws were in force because of legislation of Tuvalu or because of the actions of a former governing power of Tuvalu.

(c) any other laws relating to extradition of persons to and from Tuvalu that were in force in any part of Tuvalu immediately before the commencement of this Act.

(a) an Order in Council made under the Extradition Acts, 1870 to 1935 that is expressed to extend to Tuvalu continues in force in Tuvalu by virtue of this subsection; and

(b) Tuvalu is taken to have an extradition treaty with a country mentioned in an Order in Council or a successor to that country.

immediately before the commencement of this Act remains in force and is taken to be an extradition treaty for the purpose of this Act.

Anguilla	Malaysia
Antigua and Barbuda	Maldives
Australia	Malta
Bahamas	Mauritius
Bangladesh	Montserrat
Barbados	Mozambique
Belize	Namibia
Bermuda	New Zealand
Botswana	Nigeria
British Antarctic Territory	Pakistan
British Indian Ocean Territory	Pitcairn Islands
British Virgin Islands	St Helena and Dependencies
Brunei Darussalam	St Kitts and Nevis
Cameroon	St Lucia
Canada	St Vincent and the Grenadines
Cayman Islands	Seychelles
Cyprus	Sierra Leone
Cyprus (Sovereign Base Areas of	Singapore
Akrotiri and Dhekelia)
Dominica	South Georgia and South Sandwich
	Islands
Falkland Islands	Sri Lanka
The Gambia	South Africa
Ghana	Sri Lanka
Gibraltar	Swaziland
Grenada	Tanzania
Guyana	Trinidad and Tobago
India	Turks and Caicos Islands
Jamaica	Uganda
Kenya	United Kingdom of Great Britain and
	Northern Ireland
Lesotho	Zambia
Malawi	Zimbabwe

Argentina		Luxemburg
Belgium		Mexico
Bosnia and Herzegovina		Monaco
Chile		Nicaragua
Columbian		Norway
Croatia		Panama
Cuba		Paraguay
Denmark		Peru
Ecuador		Portugal
Federal Republic of Yugoslavia		Rumania
Former Yugoslav Republic Macedonia	of	San Marino
France		Slovenia
Greece		Spain
Guatemala		Sweden
Haiti		Switzerland
Hungary		Thailand
Iceland		United States of America
Italy		Uruguay
Liberia

An application has been made to me on behalf of [requesting country] for the issue of a
provisional warrant for the arrest of [name of person].

I am satisfied, on the basis of the documents produced to me on behalf of [requesting country], that:

[requesting country] intends to make a formal request for the extradition of [name of person]; and

the offence for which the extradition of [name of person] is sought is an extradition offence; and

NOW THEREFORE I, [name and designation of magistrate], under section 8 of the Extradition Act, authorise and request you to arrest [name of person] and bring him/her before a magistrate in Tuvalu as soon as practicable to be dealt with according to law.

Provisional Arrest Warrant
TO all police officers:

An application has been made to me on behalf of [Pacific Island country] for the issue of a provisional warrant for the arrest of [name of person].

I am satisfied, on the basis of the documents produced to me on behalf of [Pacific Island country], that:

an original warrant for the arrest of [name of person] has been issued in [Pacific Island country] but the warrant is not available in Tuvalu; and

it is reasonable in the circumstances to issue a warrant for the arrest of [name of person].

NOW THEREFORE I, [name and designation of magistrate], under section 28 of the Extradition Act, authorise and request you to arrest [name of person] and bring him/her before a magistrate in Tuvalu as soon as practicable to be dealt with according to law.

I, [name of Prime Minister], Prime Minister of Tuvalu, have decided under section 19 of the Extradition Act that [name of person] is to be surrendered to [requesting country] for the offence of [specify each offence for which the person is to be surrendered].

NOW THEREFORE I, [name of Prime Minister], under section 19(5) of the Extradition Act:

require any person who has custody of [name of person] to hand the person over to the police officer who has this warrant; and

authorise you to bring [name of person] to [name of place in Tuvalu] for the purpose of handing [name of person] over to the custody of [name and title of foreign escort officer], a person authorised by [requesting country] to escort [name of person] to [requesting country]; and

authorise you to hold [name of person] in custody for so long as is necessary to hand him/her over to the foreign escort officer; and

authorise [name and title of foreign escort officer] to transport [name of person] out of Tuvalu

I, [name of Prime Minister], Prime Minister of Tuvalu, have decided under section 19 of the Extradition Act that [name of person] is to be surrendered to [requesting country] for the offence of [specify each offence for which the person is to be surrendered].

[name of person]: is serving a custodial sentence in Tuvalu; and has not been convicted of the offence(s) for which his/her surrender is sought.

[requesting country] has given an adequate undertaking that [name of person] will be given a speedy trial in [requesting country] and will be returned to Tuvalu after the trial; and adequate provision has been made for [name of person]:to travel to [requesting country] and to return to Tuvalu.

NOW THEREFORE I, [name of Prime Minister], under section 19(5) of the Extradition Act 2002: require any person who has custody of [name of person] to hand the person over to the police officer who has this warrant; and

authorise you to bring [name of person] to [name of place in Tuvalu] for the purpose of handing [name of person] over to the custody of [name and title of foreign escort officer], a person authorised by [requesting country] to escort [name of person] to [requesting country]; and

authorise you to hold [name of person] in custody for so long as is necessary to hand him/her over to the foreign escort officer; and authorise [name and title of foreign escort officer] to transport [name of person] out of Tuvalu

I, [name and title of magistrate], have decided under section 36 of the Extradition Act that [name of person] is to be surrendered to [Pacific Island country] for the offence of [specify each offence for which the person is to be surrendered].

NOW THEREFORE I, [name of Magistrate], under section 36(3) of the Extradition Act:

order that [name of person] be committed to prison until he/she is surrendered to [Pacific Island country]; and

require any person who has custody of [name of person] to hand the person over to the police officer who has this warrant; and

authorise you to bring [name of person] to [name of place in Tuvalu] for the purpose of handing [name of person] over to the custody of [name and title of foreign escort officer], a person authorised by [Pacific Island country] to escort [name of person] to [Pacific Island country]; and

authorise you to hold [name of person] in custody for so long as is necessary to hand him/her over to the foreign escort officer; and

authorise [name and title of foreign escort officer] to transport [name of person] out of Tuvalu

I, [name of Prime Minister], Prime Minister of Tuvalu, have decided under section 39 of the Extradition Act that [name of person] is to be temporarily surrendered to [Pacific Island country] for the offence of [specify each offence for which the person is to be surrendered].

[name of person]: is serving a custodial sentence in Tuvalu; and has not been convicted of the offence(s) for which his/her surrender is sought.

[Pacific Island country] has given an adequate undertaking that [name of person] will be given a speedy trial in [Pacific Island country] and will be returned to Tuvalu after the trial; and adequate provision has been made for [name of person]:to travel to [Pacific Island country] and to return to Tuvalu.

NOW THEREFORE I, [name of Prime Minister], under section 39 of the Extradition Act: require any person who has custody of [name of person] to hand the person over to the police officer who has this warrant; and

Cook Islands	Nauru	Solomon Islands
Federated States of Micronesia	Niue	Tonga
Fiji	Palau	Tuvalu
Kiribati	Papua New Guinea	Vanuatu
Marshall Islands		Western Samoa

Tuvalu Consolidated Legislation - 2008 Edition

Extradition