International Criminal Court Act 2006

PART 1 Preliminary and General

1. Short title.

1.— This Act may be cited as the International Criminal Court Act 2006.

2. Interpretation (general).

2.— (1) In this Act, unless the context otherwise requires—

“act”, except where the context otherwise requires, includes omission, and references to conduct are to be construed accordingly;

“Act of 1994” means the Criminal Justice Act 1994;

“ancillary offence” shall be construed in accordance with section8(1);

“another state” means a state other than the State;

“Article” means an Article of the Statute;

“document” includes—

(a) a map, plan, graph, drawing, photograph, photographic negative, record, book, periodical or pamphlet, and

(b) where appropriate, any tape, computer disk or other thing on which data capable of conversion into any permanent legible form is stored;

“Elements of Crimes” means Elements of Crimes (including any amendments thereto) adopted under Article 9;

“Extradition Acts” means the Extradition Acts 1965 to 2001;

“functions” includes powers and duties, and references to the performance of functions include, as respects powers and duties, references to the exercise of the powers and the performance of the duties;

“ICC offence” has the meaning given to it by section9(1); “ Minister ” means the Minister for Justice, Equality and Law Reform;

“Pre-Trial Chamber” means the Pre-Trial Chamber of the International Criminal Court;

“prison” means a place of custody administered by or on behalf of the Minister and includes—

(a) F1[…]

(b) a place provided under section 2 of the Prisons Act 1970,

(c) a place specified under section 3 of the Prisons Act 1972, and

(d) a remand centre designated under section 88 of the Children Act 2001;

“property” includes—

(a) money and all other property, real or personal, movable or immovable,

(b) choses in action and any other intangible or incorporeal property, and

(c) proceeds of the disposal of property;

“Prosecutor” means the Prosecutor of the International Criminal Court;

“remand institution” means an institution (other than a prison) within the meaning of the Criminal Justice Act 1960;

“Rules of Procedure and Evidence” means the Rules of Procedure and Evidence (including any amendments thereto) adopted under Article 51;

“Statute” means the Rome Statute of the International Criminal Court, done at Rome on 17 July 1998;

“surrender order” means an order of the High Court under section25 for the surrender of a person.

(2) Nothing in this Act (except in so far as may be required by section18) prevents the surrender of a person in accordance with the Extradition Acts or the European Arrest Warrant Act 2003.

(3) In this Act, unless the context otherwise requires—

(a) a reference to a section or Part is to a section or Part of this Act,

(b) a reference to a subsection, paragraph or subparagraph is to a subsection, paragraph or subparagraph of the provision in which the reference occurs,

(c) a reference to a Schedule is to a Schedule to this Act, and

(d) a reference to any enactment is a reference to that enactment as amended or adapted by or under any subsequent enactment.

3. Interpretation by courts of Act and Statute.

3.— (1) In interpreting the Act and Statute a court, where necessary, may—

(a) take account of the Rules of Procedure and Evidence, the Elements of Crimes and any relevant judgment or decision of the International Criminal Court,

(b) take account of any other relevant judgment, and

(c) consider the travaux préparatoires relating to the Statute and the published views of commentators on its text and give them such weight as may appear to the court to be appropriate in the circumstances.

(2) For the purposes of its application in relation to the State references in the Statute to a State Party, requested state or custodial state shall be construed, where the context so permits—

(a) as references to the State, or

(b) where the provisions in which the references occur require, or may require, the performance on behalf of the State of executive functions, as references to the Minister.

(3) Judicial notice shall be taken of the Statute.

(4) The text of the Statute in the English language is set out in Schedule 1 for convenience of reference.

(5) In this section “court” means a court in the State and includes a court-martial, whether held within or outside the State.

4. Requests by International Criminal Court.

4.— (1) In relation to any request by the International Criminal Court for the arrest and surrender, or the provisional arrest, of a person or for assistance under Article 93 (other forms of co-operation) the Minister may presume, unless he or she has any information to the contrary, that the request—

(a) has been duly made and transmitted in accordance with the relevant provisions of the Statute, and

(b) is being made in connection with the investigation or prosecution of offences within the jurisdiction of the Court.

(2) (a) Where a request by the Court involves the disclosure of information and such a disclosure would in the Minister's opinion be prejudicial to the interests of the security of the State, he or she shall—

(i) in accordance with Article 93.5, consider whether the information can be provided subject to specified conditions or whether the assistance concerned can be provided at a later date or in an alternative manner, and

(ii) if of opinion that the information cannot be so provided, act in conjunction with the Prosecutor, the defendant's legal advisers or the Pre-Trial Chamber or Trial Chamber of the Court to seek to resolve the issue in accordance with paragraph 5 of Article 72.

(b) Where the Minister becomes aware that such information is, or is likely to be, disclosed in an investigation or proceedings instituted by the Court, he or she shall, in accordance with paragraph 4 of that Article, intervene in order to obtain a resolution of the issue.

(c) If—

(i) the issue remains unresolved, and

(ii) the Minister is of opinion that there are no means by which, or conditions under which, the information could be disclosed without prejudicing the interests of the security of the State,

the Minister shall—

(I) notify the Prosecutor or the Court of that opinion and of the specific reasons for it unless to do so would itself necessarily result in prejudicing those interests, and

(II) participate in any consultations requested by the Court under Article 72.7(a)(i) in relation to the issue.

(d) For the purposes of this subsection Article 72 and paragraphs 4 and 5 of Article 93 shall have effect with any necessary modifications.

(e) In any proceedings a document purporting to be signed by the Minister and to certify that in his or her opinion—

(i) disclosure of information in compliance with a request from the Court, or

(ii) as the case may be, any further such disclosure,

would be prejudicial to the interests of the security of the State shall be admissible in evidence, without further proof, of that opinion.

(f) In this subsection references to the disclosure of information include references to the provision of documents, and cognate words shall be construed accordingly.

(3) Where compliance with a request by the Court is prohibited under the law of the State on the basis of a fundamental legal principle of general application, the Minister shall, in accordance with Article 93.3, consult with the Court to try to resolve the matter.

(4) If a request for assistance is refused, the Minister shall inform the Court or the Prosecutor of the reasons for the refusal.

(5) In accordance with Article 93.8 the Minister—

(a) may, when necessary, transmit information or documents to the Prosecutor on a confidential basis for use by him or her solely for the purpose of generating new evidence, and

(b) may subsequently consent to their disclosure.

(6) Any request mentioned in subsection(1) and any supporting or related documents shall constitute official information within the meaning of the Official Secrets Act 1963.

(7) Competing requests for assistance from the Court and from another state pursuant to an international obligation of the State, other than requests for surrender or extradition, shall be dealt with by the Minister in accordance with Article 93.9.

5. Expenses.

5.— The expenses incurred in the administration of this Act (including the contribution of the State to the funds of the International Criminal Court under Article 115 but excluding costs to be borne by the Court under Article 100) shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART 2 Domestic Jurisdiction in ICC Offences

6. Interpretation ( Part 2 ).

6.— (1) In this Part, unless the context otherwise requires—

“court” means, as appropriate, the Central Criminal Court, Special Criminal Court or, in relation to persons subject to military law, a court-martial, whether held inside or outside the State;

“crime against humanity” means any of the acts specified in Article 7;

“genocide” means any of the acts specified in Article 6;

“war crime” means any of the acts specified in Article 8.2 (except subparagraph (b)(xx)).

(2) In Articles 7 and 8 references to murder shall be construed as references to the killing of a person in such circumstances as would, if committed in the State, constitute murder.

7. Genocide, crimes against humanity and war crimes.

7.— (1) Any person who commits genocide, a crime against humanity or a war crime is guilty of an offence.

(2) The Genocide Act 1973 (the “1973 Act”) is repealed.

(3) The repeal effected by subsection(2) is without prejudice to the obligations of the State under the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the General Assembly of the United Nations on 9 December 1948, the text of which is set out in Schedule 4.

(4) Notwithstanding subsection(2), proceedings under the 1973 Act may be taken after the passing of this Act for an offence under that Act committed before such passing.

8. Offences ancillary to genocide, crimes against humanity and war crimes.

8.— (1) Any person who does any act specified in paragraph3 of Article 25 (crimes ancillary to genocide, crimes against humanity and war crimes) is guilty of an offence (in this Act referred to as an “ancillary offence”).

(2) Subsection(1) is without prejudice to section 7 (penalties for assisting offenders) of the Criminal Law Act 1997.

9. Proceedings for ICC offence.

9.— (1) In this Act “ICC offence” means genocide, a crime against humanity, a war crime or an ancillary offence.

(2) No further proceedings (other than a remand in custody or on bail) shall be taken in relation to a person charged with an ICC offence except by or with the consent of the Director of Public Prosecutions.

(3) Proceedings for an ICC offence committed outside the State may be taken in any place in the State, and the offence may for all incidental purposes be treated as having been committed in that place.

(4) Without prejudice to section7(4), proceedings may not be taken in respect of conduct constituting an ICC offence if the conduct occurred before the passing of this Act.

10. Penalty for ICC offence.

10.— (1) A person convicted of an ICC offence is liable—

(a) to imprisonment for life if—

(i) the offence involves murder, or

(ii) a term of life imprisonment would be justified by the extreme gravity of the offence and the individual circumstances of the convicted person,

(b) in any other case, to imprisonment for a term not exceeding 30 years,

(c) to a fine in accordance with the criteria provided for in the Rules of Procedure and Evidence, and

(d) if the person has obtained property as a result of or in connection with the offence, to having a confiscation order made in respect of him or her under section 9 of the Act of 1994.

(2) In determining the penalty to be imposed the court shall take account of the provisions of Article 78 (determination of the sentence).

(3) Sums recovered under a confiscation order made in relation to an ICC offence shall, if the court so directs, be applied wholly or partly in reparation to victims of the conduct constituting the offence.

11. Offences against administration of justice.

11.— (1) It shall be an offence for a person to do intentionally any of the acts mentioned in paragraph 1 of Article 70 (offences against the administration of justice) in relation to proceedings—

(a) before the International Criminal Court, or

(b) before a court for an ICC offence,

and for the purposes of the proceedings mentioned in paragraph (b) references to the International Criminal Court in paragraph 1 and the first sentence of paragraph 2 of that Article shall be construed as references to a court.

(2) (a) A person convicted of an offence under subsection(1)(b) is liable—

(i) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

(b) Subject to paragraph(a)(i), the amount of any fine to be imposed shall be determined having regard to the Rules of Procedure and Evidence.

(3) No further proceedings (other than a remand in custody or on bail) shall be taken in relation to a person charged with an offence under this section except by or with the consent of the Director of Public Prosecutions.

12. Extra-territorial jurisdiction.

12.— (1) An Irish national who does an act outside the State that, if done within it, would constitute an ICC offence or an offence under section11(1) is guilty of that offence and liable to the penalty provided for it.

(2) Subsection(1) also applies in relation to a person of any other nationality who does an act outside the State that, if done within it, would constitute both—

(a) a war crime under subparagraph (a) (grave breaches of the Geneva Conventions) or (b) (other specified serious violations of the laws and customs applicable in international armed conflict) of Article 8.2, and

(b) an offence under section 3 (grave breaches of the Geneva Conventions and Protocol I thereto) of the Geneva Conventions Act 1962.

(3) An act which—

(a) is done outside the State on board an Irish ship or Irish controlled aircraft, and

(b) if done within it, would constitute an ICC offence,

is deemed for the purposes of this Act to have been done within the State.

(4) The reference in subsection(2)(b) to section 3 of the Geneva Conventions Act 1962 is to that section as amended by section 3 of the Geneva Conventions (Amendment) Act 1998 and by paragraph2 of Schedule 3.

(5) In this section—

“Irish controlled aircraft” has the meaning given to it by section 1(1) of the Air Navigation and Transport Act 1973;

“Irish ship” has the meaning given to it by section 9 of the Mercantile Marine Act 1955.

13. Applicable law.

13.— (1) The law (including common law) of the State shall, subject to subsection(2), apply in determining whether a person has committed an offence under this Part.

(2) Article 27 (application of Statute to all persons without any distinction based on official capacity) and paragraphs (a) and (b) of Article 28 (responsibility of commanders and other superiors for crimes within the jurisdiction of the International Criminal Court) shall apply, as appropriate and with any necessary modifications, in relation to any such determination.

(3) This section is without prejudice to section3(1).

14. Protection of victims and witnesses.

14.— (1) In proceedings for an offence under this Part—

(a) the measures specified in paragraphs 1 and 5 of Article 68 (protection of victims and witnesses and their participation in proceedings) shall, where appropriate, be taken during the investigation and prosecution of the offence, and

(b) the court concerned shall, where appropriate, take the measures specified in paragraphs 1 to 3 and 5 of that Article.

(2) Any such measures or the manner in which they are taken shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

(3) An application may be made in any such proceedings by or on behalf of the Director of Public Prosecutions for necessary measures to be taken for the protection of any servants or agents of the State involved in the proceedings and for the protection of confidential or sensitive information; and the court may grant the application if satisfied that it is in the interests of justice to do so.

PART 3 Requests by International Criminal Court for Arrest and Surrender of Persons

15. Interpretation ( Part 3 ).

15.— In this Part—

F3[‘appeal proceedings’means proceedings relating to—

(a) a complaint under Article 40.4.2°of the Constitution (including any proceedings on appeal from a decision on the complaint),

(b) an appeal on a point of law to the Court of Appeal against a surrender order or an appeal to that Court against a refusal of such an order, or

(c) an appeal to the Supreme Court (whether under Article 34.5.4°or on an appeal from a decision of the Court of Appeal);]

“provisional arrest warrant” means a warrant issued under section22(1);

“state of enforcement” means a state (other than the State) which is designated by the International Criminal Court under Article 103(1) from a list of states which have indicated to the Court their willingness to accept persons sentenced by it.

16. Effect of release under this Part.

16.— Where—

(a) a person whose surrender has been requested by the International Criminal Court for an offence within its jurisdiction is in custody under this Part, and

(b) the person is also in custody for another offence,

his or her release under this Part shall not affect his or her custody for that other offence.

17. Request for arrest and surrender.

17.— (1) A request by the International Criminal Court for the arrest and surrender of a person shall be communicated to the Minister in accordance with Articles 87, 89 and 91.

(2) The request shall be accompanied by—

(a) as accurate a description as possible of the person whose surrender is requested, together with any other information that will help to establish the person's identity and probable location,

(b) a brief statement of the facts of the case and their legal characterisation,

(c) the original or a certified copy of the warrant of arrest, and

(d) if the request relates to a person who has been convicted by the Court—

(i) the original or a certified copy of any previous warrant of arrest,

(ii) the original or a certified copy of the judgment of conviction,

(iii) information establishing that the person sought is the person referred to in the judgment, and

(iv) the original or a certified copy of any sentence imposed and, in the case of a sentence of imprisonment, a statement of any period already served and the period remaining to be served.

(3) If the information furnished by the Court is in the Minister's opinion insufficient, the Minister may request it to supply further information or documents.

(4) The Minister shall consult with the Court under Article 97 in relation to any difficulties that may impede or prevent the execution of a request.

(5) The Minister may act on a request or supporting document which otherwise complies with this section notwithstanding that it was received by him or her before the passing of this Act.

(6) An amended warrant of arrest shall be treated as if it were a new warrant, without prejudice to the validity of anything done under the old warrant.

18. Conflicting requests.

18.— (1) In this section “surrender proceedings” means proceedings before the High Court for the surrender of a person to another state following receipt of—

(a) a request under the Extradition Acts for his or her extradition to another state, or

(b) a F4[relevant arrest warrant] (within the meaning of the European Arrest Warrant Act 2003) in respect of the person.

(2) Where the Minister receives a request from the International Criminal Court for the arrest and surrender of a person under Article 89 and—

(a) surrender proceedings in respect of the person have been instituted but have not been determined, or

(b) the person is awaiting surrender to another state under the Extradition Acts or the European Arrest Warrant Act 2003,

then, pending a decision by the Minister in accordance with Article 90 on whether priority should be given to the request—

(i) the Minister shall notify the High Court of the request, and, on receipt of the notification, the Court may adjourn the proceedings for such period or periods as it thinks fit and remand the person in custody or, subject to section26(2), on bail, or

(ii) as the case may be, the person shall not be so surrendered.

(3) If the Minister decides in accordance with Article 90 that priority should be given to the request from the International Criminal Court and—

(a) the surrender proceedings have been so adjourned, the Minister shall cause the High Court to be notified of his or her decision, and, on receipt of the notification, the Court may order that the proceedings be discontinued and that the person concerned be brought before it to be dealt with in accordance with section25, or

(b) the person is awaiting surrender to another state, the person shall not be so surrendered, and sections19, 20, 23 and 25 shall have effect in relation to the case.

(4) If, having consulted the International Criminal Court, the Minister decides in accordance with Article 90 that priority should not be given to the Court’s request—

(a) the Minister shall cause the High Court to be notified accordingly, or

(b) if the person is awaiting surrender to another state, subsection(2)(ii) shall cease to have effect in relation to the person concerned.

(5) A discontinuance of surrender proceedings under subsection(3)(a) in respect of an offence is not a bar to instituting fresh such proceedings for it.

(6) This section has effect notwithstanding anything in the Extradition Acts and is without prejudice to F4[section 30(2)] of the European Arrest Warrant Act 2003.

19. Certificate by Minister of making of request.

19.— (1) On receiving a request from the International Criminal Court for the arrest and surrender of a person the Minister shall, subject to this Part, certify that the request has been duly made.

(2) The Minister—

(a) may postpone action on the request until—

(i) the Court has determined any challenge to the admissibility of the case or to its jurisdiction (whether or not the challenge is a challenge by the Minister under Article 19(2)(b) to the admissibility of the case on the ground that it is being, or has been, investigated), or

(ii) the completion of any consultation between the Minister and the Court under Article 97 in relation to any difficulties that may impede or prevent the execution of the request,

and

(b) may, where the person concerned is being investigated or proceeded against in relation to an offence that is not an ICC offence, postpone such action in accordance with Article 94.1.

(3) In deciding under subsection(2)(b) whether to postpone action on a request the Minister shall have regard to the seriousness of the offence referred to in that subsection.

(4) If the Minister decides under subsection(2)(b) not to postpone action on a request, any proceedings referred to in that subsection that are pending shall, on the application of the Director of Public Prosecutions, be withdrawn, with liberty to re-enter.

(5) The Minister, if he or she decides to grant a request for the surrender of a person who is being proceeded against or is serving a sentence for an offence that is not an ICC offence, shall consult the Court in accordance with Article 89.4.

(6) The Minister shall not take action on a request if informed by the Court that it has determined that the case is inadmissible or that it is not proceeding further with the request for any other reason.

(7) In subsection(2)(b)“proceedings” does not include proceedings against a person under the Extradition Acts or the European Arrest Warrant Act 2003.

20. Issue of arrest warrant.

20.— (1) On production to the High Court of—

(a) a certificate by the Minister under section19 that a request has been duly made by the International Criminal Court for the arrest and surrender of a person, and

(b) copies of the request and of the accompanying documents and any other related documents,

the Court shall issue a warrant for the person's arrest, addressed to the Commissioner of the Garda Síochána.

(2) A document purporting to be—

(a) a certificate referred to in subsection(1)(a), or

(b) a copy of any document referred to in subsection(1)(b),

is admissible, without further proof, as evidence of the matters mentioned in it.

(3) The Court shall cause the Minister to be notified forthwith of the issue of the warrant.

21. Request for provisional arrest.

21.— (1) This section applies where the Minister receives from the International Criminal Court a request, made in accordance with Article 92, for the provisional arrest of a person.

(2) If, where this section applies, it appears to the Minister that application should be made for a warrant for the person's provisional arrest, the Minister shall communicate the request to the Commissioner of the Garda Síochána, and the Commissioner shall cause such an application to be made to the High Court under section22.

22. Issue of provisional arrest warrant.

22.— (1) The High Court may issue a warrant (in this Part referred to as a “provisional arrest warrant”) for the arrest of a person on the sworn information of a member of the Garda Síochána not below the rank of inspector that he or she has reason to believe—

(a) that the International Criminal Court has made a request under Article 92 for the provisional arrest of the person on grounds of urgency,

(b) that the person is in, or on the way to, the State,

(c) that the person—

(i) is accused or suspected by that Court of having committed an ICC offence or an offence under section11(1)(a), or

(ii) has been convicted by it of such an offence,

and

(d) that a request for the arrest and surrender of the person will be duly made.

(2) The Court shall cause the Minister to be informed forthwith of the issue of the warrant.

(3) Where, at any time before the execution of the warrant, it appears to the Minister that a request for the surrender of the person named in it will not be received from the International Criminal Court or that proceedings will not be instituted by it against the person, the Minister may by order cancel the warrant and shall forthwith cause the High Court to be notified accordingly.

(4) A provisional arrest warrant may be issued in respect of a person notwithstanding the previous issue or refusal of a warrant for the person's arrest under this Part.

23. Execution of arrest warrants.

23.— (1) A member of the Garda Síochána may execute a warrant issued under section20 or 22 even if the warrant is not in the member's possession.

(2) The member executing the warrant shall show the warrant to the arrested person and give him or her a copy of it—

(a) at the time of the arrest, or

(b) if the warrant or copy is not then in the member's possession, within 24 hours after the arrest.

(3) For the purpose of arresting a person under the warrant the member may enter (by force, if necessary) and search any place where the person is or where the member, with reasonable cause, suspects the person to be.

(4) The arrested person shall be brought before the High Court as soon as possible and be provided, where necessary, with a competent interpreter.

(5) The Court shall order that legal aid be provided for the arrested person if it appears to it that the person’s means are insufficient to enable him or her to obtain such aid.

(6) On the making of such an order the arrested person shall be entitled to free legal aid in the proceedings and for that purpose section 3 of the Criminal Justice (Legal Aid) Act 1962 shall apply, with the necessary modifications, in relation to the person as if he or she had been granted a legal aid (trial on indictment) certificate under that section.

24. Proceedings after provisional arrest.

24.— (1) Subject to subsection(2), where—

(a) a person arrested under a provisional arrest warrant is brought before the High Court, and

(b) a certificate under section19 in respect of the person is not produced to it,

the Court shall remand the person in custody or, subject to section26(2), on bail until the certificate is produced.

(2) Where a certificate under section19 is not produced to the Court within such period from the date of the provisional arrest as is specified for the time being in the Rules of Procedure and Evidence for the receipt by a requested state of a request for surrender, the person, if in custody, shall be released.

25. Surrender order.

25.— (1) (a) Subject to subsection(2), on application by or on behalf of the Minister for the surrender of a person arrested under section23, the High Court may, if satisfied that the arrested person is the person named or described in the warrant of arrest and surrender issued by the International Criminal Court, make an order (in this Part referred to as a “surrender order”) for the surrender of the person either—

(i) into the custody of that Court, or

(ii) if that Court so directs in the case of a person convicted by it, into the custody of the state of enforcement,

in accordance with arrangements to be made by the Minister.

(b) Where the application relates to a person arrested under a provisional arrest warrant, copies of the request by the International Criminal Court for his or her surrender and of the accompanying documents and any other related documents, together with a certificate by the Minister under section19 that the request has been duly made, shall be produced to the High Court.

(c) In accordance with paragraph 4, second sentence, of Article 59 the High Court may not consider whether the warrant of arrest was properly issued in accordance with paragraphs 1(a) and 1(b) of Article 58.

(2) (a) The High Court shall adjourn the proceedings pending the outcome of—

(i) any challenge before the International Criminal Court to the admissibility of a case on grounds referred to in Article 17 or 89(2) or to that Court's jurisdiction in the case, or

(ii) a challenge to admissibility made before the High Court on the basis of the principle of ne bis in idem, as provided for in Article 89(2),

and remand the arrested person in custody or, subject to section26(2), on bail.

(b) The High Court shall cause the Minister to be informed of any challenge mentioned in paragraph(a)(ii).

(c) On being so informed, the Minister shall consult the International Criminal Court and then inform the High Court either—

(i) that there is an existing ruling of the International Criminal Court in relation to the admissibility of the case, or

(ii) that that Court is considering the challenge.

(3) The High Court, whether or not it makes a surrender order, may, and on the application of the arrested person shall—

(a) determine—

(i) whether section23(2) was complied with in relation to the execution of the warrant of arrest, and

(ii) whether any other rights of the person in relation to the arrest have been respected,

(b) make a declaration to that effect, and

(c) notify the Minister accordingly,

and the Minister shall transmit a copy of the notification to the International Criminal Court.

(4) On making a surrender order the High Court shall—

(a) inform the arrested person that he or she will not be surrendered, except with his or her consent, before 15 days have elapsed from the date of the order,

(b) also inform the person of the provisions of Article 40.4.2° of the Constitution (which relates to the making of a complaint to the High Court by or on behalf of a person alleging that he or she is unlawfully detained), and

(c) cause a copy of the order to be sent forthwith to the Minister.

(5) A surrender order shall provide for the committal of the arrested person to a prison or, if the person is not more than 21 years of age, to a remand institution (within the meaning of the Criminal Justice Act 1960) while awaiting the surrender.

(6) An appeal shall lie to the Supreme Court against a surrender order only on a point of law.

(7) (a) If an appeal is to be brought against a refusal of the High Court to make a surrender order and the Court is so informed without delay, the Court shall remand the arrested person in custody or, subject to section26(2), on bail, until the appeal has been finally determined.

(b) If not so informed, the Court shall order that the arrested person be released.

(8) Sections 10 and 11 (transfer and lawful custody of remanded persons) of the Criminal Justice Act 1960 apply to a person committed or remanded to a remand institution under this section.

26. Adjournment and remand.

26.— (1) In relation to a person who is before it under this Part the High Court may, subject to subsection(2), exercise its powers of adjournment and remand, including, but not limited to, the powers it has in that respect in relation to a person sent forward to the Central Criminal Court for trial.

(2) (a) The High Court—

(i) shall cause any application for bail by such a person brought before it to be notified to the Pre-Trial Chamber and the Minister, and

(ii) shall, in reaching a decision on the application—

(I) have regard to the principles set out in paragraph 4, first sentence, of Article 59, and

(II) give full consideration to any recommendations made by the Chamber in relation to the application.

(b) If bail is granted, the Minister shall provide any periodic reports requested by the Chamber under Article 59.6.

(c) Bail may not be granted under this subsection to a person who is serving a sentence of imprisonment or detention.

27. Time lapse before surrender.

27.— Subject to section29, a person who has been committed under a surrender order shall not be surrendered to the International Criminal Court before—

(a) 15 days have elapsed since the date of the order, or

(b) proceedings (including any appeal proceedings) in connection with the request for arrest and surrender have been finally determined,

whichever is the later.

28. Removal to hospital or other place.

28.— (1) The Minister may order that a person committed under a surrender order be removed to a hospital or other place if of opinion that it is necessary to do so in the interests of the person's health.

(2) A person so removed shall continue to be in lawful custody while in the hospital or other place.

29. Consent to surrender.

29.— (1) A person arrested in accordance with a warrant issued under section20 or 22 may consent to be surrendered to the custody of the International Criminal Court or, in the case of a person convicted by it, of the state of enforcement.

(2) The person shall give notice of intention to consent to surrender—

(a) if in custody, to the prison governor, member of the Garda Síochána or other person in whose custody the person is, and

(b) if on bail, to any member of the Garda Síochána.

(3) The consent must be given and recorded before the High Court and be given voluntarily and in full awareness of the consequences.

(4) Where, by reason of a physical or mental condition, it is inappropriate for the person to consent to being surrendered, the consent may be given by a person who is deemed appropriate for that purpose by the High Court.

(5) On the recording of consent to surrender the High Court shall—

(a) if a surrender order has not been made in relation to the person, make a surrender order, and

(b) if such an order has been made, order that the person be returned to custody to await his or her surrender.

(6) (a) A person who has consented to surrender in accordance with this section may, at any time up to the making of an order by the Minister under section30, withdraw the consent.

(b) On such withdrawal the person—

(i) if the surrender order was made after the consent was given, shall be brought before the High Court and be dealt with by that Court as if he or she had not so consented, or

(ii) in any other case, shall await surrender in accordance with this Part.

(7) The person who receives notice of intention to consent to surrender or is informed of the withdrawal of the consent shall forthwith notify the Minister accordingly.

30. Surrender.

30.— (1) Subject to this Part, the Minister may by order direct that a person who has been committed under a surrender order shall be surrendered to the custody of another person who in the Minister's opinion has been duly authorised in that behalf by the International Criminal Court or the state of enforcement, as the case may be, and the person shall be surrendered accordingly.

(2) The authorised person shall receive, hold in custody and convey out of the State the person so surrendered.

(3) A person who escapes from the custody of the authorised person shall be liable to be retaken in the same manner as any person who escapes from lawful custody.

31. Postponement of surrender.

31.— (1) The Minister may postpone the making of an order under section30—

(a) until the International Criminal Court has determined any challenge to the admissibility of the case or to its jurisdiction, or

(b) in consultation with the Court, where the person concerned is being investigated or proceeded against in relation to an offence that is not an ICC offence, until the conclusion or discontinuance of the investigation or proceedings.

(2) If the Minister decides under subsection(1)(b) not to postpone the making of the order, any proceedings referred to in that subsection that are pending shall, on the application of the Director of Public Prosecutions, be withdrawn, with liberty to re-enter.

(3) In deciding whether to postpone surrender under subsection(1)(b) the Minister shall have regard to the seriousness of the conduct constituting the offence referred to in that subsection.

(4) (a) This subsection applies on the expiration of a period of postponement mentioned in subsection(1).

(b) The Minister—

(i) if the postponement arises under subsection(1)(a) and the Court has determined that the case is inadmissible or not within its jurisdiction, shall order that the person, if in custody, be released, or

(ii) in any other case, shall, subject to this Part, make an order under section30 in respect of the person concerned.

(5) In subsection(1)(b)“proceedings” does not include proceedings against a person under the Extradition Acts or the European Arrest Warrant Act 2003.

32. Release by order of Minister.

32.— Without prejudice to sections31(4)(b)(i) and 35(2), the Minister may, after consultation with the International Criminal Court, order the release from custody of a person who has been committed under a surrender order if of opinion—

(a) that, in the light of information received after the making of the surrender order, the surrender is prohibited by this Act, or

(b) that the request for the surrender is not being proceeded with.

33. Release by order of High Court.

33.— (1) This section applies where a person awaiting surrender under this Part is not surrendered and conveyed out of the State within one month after—

(a) the making of the surrender order,

(b) the conclusion of any appeal proceedings, or

(c) the expiration of any period of postponement mentioned in section31(1),

whichever is the later.

(2) Where this section applies but subject to subsection(3), the High Court may, on application by or on behalf of the person concerned and on notice to the Minister, order that the person be released from custody.

(3) If the Court is satisfied—

(a) that the person's state of health or other circumstances beyond the control of the Minister or the International Criminal Court or, as the case may be, the state of enforcement have prevented the person from being surrendered under this Part, and

(b) that it is likely that within a reasonable time those circumstances will no longer apply,

it may fix a period within which the person may be so surrendered, and the person shall be released if not surrendered within that period or any extension thereof which may be directed by the Court from time to time in accordance with this section.

(4) Subsection(2) is without prejudice to section35(2).

34. Release not a bar to subsequent arrest or surrender.

34.— The cancellation under section22(3)of a warrant for the provisional arrest of a person or the release of a person under section24(2), 32 or 33(2) is not a bar to the person's arrest or surrender in accordance with any subsequent request from the International Criminal Court.

35. Imprisoned or detained persons whose surrender requested.

35.— (1) This section applies to a person who is subject to a surrender order and is also liable to serve, or is serving, a sentence of imprisonment or detention.

(2) A person to whom this section applies shall continue to be liable to serve, or continue to serve, the sentence.

(3) The surrender order may provide—

(a) for the person's return to the State in accordance with arrangements made by the Minister with the International Criminal Court or, as the case may be, with the state of enforcement, and

(b) for his or her transfer in custody from the state of enforcement to the place of imprisonment or detention.

(4) A period in custody arising from the request for surrender, except any period in the custody of the International Criminal Court or state of enforcement under a sentence of detention imposed by the Court, shall be reckoned as a period served under the sentence of imprisonment or detention.

(5) If a sentence of imprisonment or detention expires while the sentenced person is being detained by or on the order of the International Criminal Court, the Minister shall notify the Court accordingly.

36. Rule of specialty.

36.— (1) Subject to subsection(2) and in accordance with Article 101, a person surrendered to the International Criminal Court shall not be proceeded against, punished or detained, whether by the Court or an enforcement state, for any offence committed before his or her surrender other than that for which the surrender was requested.

(2) The Minister may, if so requested by the Court and having received such information or assurances from it as he or she considers necessary, waive the requirements of subsection(1) in a particular case.

PART 4 Requests to Freeze Assets and Enforce Orders of International Criminal Court

37. Interpretation ( Part 4 ).

37.— In this Part, unless the context otherwise requires—

“Act of 1988” means the Bankruptcy Act 1988;

“defendant” means a person in relation to whom the Minister has received a request from the International Criminal Court for the freezing of property or the enforcement of an ICC order;

“enforceable ICC order” means an ICC order in relation to which an enforcement order has been made;

“enforcement order” means an order under section40(3) for the enforcement of an ICC order;

“freezing order” means an order under section38(4);

“gift caught by this Part” means a gift—

(a) which was made by the defendant in proceedings for an ICC offence at any time after the commission of the offence or, if there is more than one such offence, the earliest of the offences to which the proceedings for the time being relate, and

(b) which the court considers it appropriate in all the circumstances to take into account;

“ICC order” has the meaning given to it by section40(1);

“realisable property” means—

(a) any property held by a defendant, and

(b) any property held by a person to whom a defendant has directly or indirectly made a gift caught by this Part,

but does not include any property subject to—

(i) an order under section 4 or 4A of the Proceeds of Crime Act 1996,

(ii) forfeiture under an enforceable ICC order,

(iii) an order under section 30 (forfeiture orders) of the Misuse of Drugs Act 1977,

(iv) a confiscation order, or a forfeiture order, within the meaning of the Act of 1994, or

(v) a confiscation co-operation order or an external forfeiture order, as referred to in section 46 or 47 of that Act;

“registered land” means land whose owner is, or is deemed to be, registered under the Registration of Title Act 1964.

38. Freezing orders.

38.— (1) This section applies where the Minister receives a request from the International Criminal Court under Article 93.1(k) to freeze the property of a person, including any articles used in the commission of an ICC offence, for the purpose of its eventual forfeiture.

(2) Where this section applies, the Minister shall, subject to section4, send a copy of the request and any accompanying documents to the Commissioner of the Garda Síochána.

(3) (a) The Commissioner shall thereupon cause a member of the Garda Síochána not below the rank of inspector to apply to the High Court for an order under subsection(4).

(b) If the applicant—

(i) believes that the person to whom the request relates owns any land (whether or not the applicant believes that the person owns other land), and

(ii) is aware of its location,

the applicant shall state in the application that he or she so believes and specify the location of the land.

(4) (a) On such an application the High Court may make an order (in this Part referred to as a “freezing order”) prohibiting any person from dealing with the property of the person to whom the request relates if the Court is satisfied—

(i) that this section applies in relation to the property, and

(ii) either—

(I) that the International Criminal Court has imposed a fine, or made a reparation or forfeiture order, in the proceedings concerned, or

(II) that there are reasonable grounds for believing that that Court may impose a fine, or make such an order, in those proceedings.

(b) For the purposes of paragraph(a) dealing with property held by any person includes—

(i) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt, or

(ii) removing the property from the State.

(c) A freezing order may be subject to such conditions and exceptions as may be specified in it, including the making of such provision as the Court may think fit for the living expenses and legal expenses of any person.

(d) In paragraph(a)(ii)(I)“proceedings” includes an investigation by the International Criminal Court of an ICC offence.

(e) If subsection(3)(b) applies, the freezing order shall include the statement mentioned in that subsection.

(5) In exercising its powers under this section the High Court shall pay due regard to the rights of any third parties.

(6) A freezing order may apply—

(a) to all realisable property held by a specified person, whether the property is described in the order or not, and

(b) to realisable property held by a specified person, being property transferred to him or her after the making of the order.

(7) A freezing order—

(a) may be made ex parte and otherwise than in public,

(b) may provide for service on, or the provision of notice to, persons affected by the order in such manner as the High Court may direct,

(c) may be discharged or varied in relation to any property, and

(d) shall be discharged on the application of the International Criminal Court or on the conclusion of the proceedings before that Court in relation to which the order was made.

(8) For the purposes of subsection(7)(d), proceedings before the International Criminal Court have concluded—

(a) where the Court determines not to make an ICC order, on the date of the determination,

(b) where the Court makes such an order—

(i) on the date of the final determination of an application under section40 for its enforcement, or

(ii) on the issue by the Minister of a certificate that a request is unlikely to be received from the International Criminal Court for the enforcement of the order.

(9) An application to discharge or vary a freezing order may be made by any person affected by it.

(10) Where the High Court has made a freezing order arising from a request related to the investigation of an ICC offence, it may discharge the order if the investigation is not completed within such time as it considers reasonable.

(11) Where the High Court has made a freezing order, the Court may at any time appoint a receiver—

(a) to take possession of any realisable property, and

(b) in accordance with the Court's directions, to manage or otherwise deal with it,

subject to such exceptions and conditions as may be specified by the Court and to provision being made for the expenses and remuneration of the receiver, and may require any person having possession or control of such property to deliver it to the receiver.

(12) Where the High Court has made a freezing order, a member of the Garda Síochána or an officer of customs and excise may, for the purpose of preventing any realisable property being removed from the State, seize the property.

(13) Property seized under subsection(12) shall be dealt with in accordance with the High Court's directions.

(14) Section 60 (voidance of dispositions designed to frustrate confiscation, etc.) of the Act of 1994 shall have effect as if the references to confiscation included references to a freezing order.

39. Registration of freezing orders.

39.— (1) (a) Where a freezing order is made in relation to land, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Registrar of Titles and Deeds a notice of the making of the order, together with a copy of the order.

(b) If it appears from the freezing order, or the Registrar is otherwise aware, that the land is registered land, the Registrar shall thereupon—

(i) cause an entry to be made in the register kept under the Registration of Title Act 1964 inhibiting, until the order is discharged, any dealing with any registered land or charge which appears to be affected by it, and

(ii) if the order is subsequently varied or discharged, cause the entry to be varied accordingly or cancelled, as the case may be.

(c) Where paragraph(b) does not apply, the Registrar shall thereupon cause the notice of the making, variation or discharge of the freezing order to be registered in the Registry of Deeds pursuant to the Registration of Deeds Act 1707.

(d) If and for as long as the offices of Registrar of Titles and the Registrar of Deeds are not held by the same person—

(i) the reference in paragraph(a) to the Registrar of Titles and Deeds shall be construed as a reference to the Registrar of Titles and the Registrar of Deeds,

(ii) the reference in paragraph(b) to the Registrar shall be construed as a reference to the Registrar of Titles, and

(iii) the reference in paragraph(c) to the Registrar shall be construed as a reference to the Registrar of Deeds.

(2) (a) Where a freezing order is made which affects an interest in a company or its property, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Registrar of Companies a notice of the making of the order, together with a copy of the order.

(b) On receipt of those documents the Registrar of Companies shall, if the company is a registered company, cause the notice to be entered in the Register of Companies and—

(i) if the company is an existing company, as defined in section 2(1) of the Companies Act 1963, send a copy of the notice to each director and the secretary of the company at the company's registered office,

(ii) in any other case, send a copy of the notice by post to the person resident in the State who has been authorised to accept, on behalf of the company concerned, service of process and any notices required to be served on it.

(c) In this subsection—

“Register of Companies” means the Register of Companies maintained under the Companies Acts 1963 to 2005;

“registered company” means—

(i) a company formed and registered under those Acts,

(ii) an existing company, as defined in section 2(1) of the Companies Act 1963, or

(iii) a company registered under Part XI of that Act or the European Communities (Branch Disclosure) Regulations 1993 (S.I. No. 395 of 1993).

40. Enforcement of ICC orders.

40.— (1) This section applies where the Minister has received a request from the International Criminal Court for the enforcement of an order of the Court (in this Part referred to as an “ICC order”) imposing a fine or forfeiture or providing for reparation to, or in respect of, victims.

(2) (a) Where this section applies, the Minister shall, subject to section4, cause an application to be made to the High Court for enforcement of the ICC order.

(b) If the applicant—

(i) believes that the person against whom the order was made owns any land (whether or not the applicant believes that the person owns other land), and

(ii) is aware of its location,

the applicant shall state in the application that he or she so believes and specify the location of the land.

(3) (a) On such an application the High Court may, subject to subsection(4), make an order (in this Part referred to as an “enforcement order”) for the enforcement of the ICC order.

(b) If subsection(2)(b) applies, the enforcement order shall include the statement referred to in that subsection.

(4) The High Court shall make an enforcement order only if—

(a) the ICC order, or

(b) the conviction in respect of which it was made,

is in force and not subject to further appeal and if—

(i) a reasonable opportunity has been given for persons holding an interest in any property concerned to make representations to the High Court, and

(ii) where the ICC order imposes a fine, its enforcement will not prejudice the rights of bona fide third parties.

(5) If the ICC order has been partly complied with, the High Court shall make an enforcement order only in relation to the part not complied with.

(6) Where the enforceable ICC order relates to the payment of a fine or other sum, the order shall be enforced in accordance with its terms as if it were an order of the High Court for the payment to the State of the sum payable under the ICC order or of any lesser sum remaining due under it.

(7) Where the enforceable ICC order relates to the forfeiture of property—

(a) the order shall operate to deprive the person to whom it relates of his or her rights, if any, in the property, and

(b) the order shall be enforced in accordance with its terms as if it were an order of the High Court for the forfeiture of the property.

(8) Nothing in subsection(6) or (7) authorises a person to be imprisoned.

(9) Subject to subsection(10), if at any time after the making of the enforcement order it is reported to the High Court that any sum payable under the ICC order remains unpaid, the Court may, without prejudice to the validity of anything previously done under the order or to its future enforcement, order that the person to whom the ICC order relates be imprisoned for a period not exceeding that set out in the second column of the table to this section opposite the amount outstanding under the ICC order.

(10) An order under subsection(9) of this section shall not be made unless the person to whom the ICC order relates has been given a reasonable opportunity to make representations to the Court.

(11) Section 60 (voidance of dispositions designed to frustrate confiscation, etc.) of the Act of 1994 shall have effect as if the reference to forfeiture included a reference to an enforceable ICC order.

(12) Money or other property received under an enforceable ICC order shall, without prejudice to section49(1), be dealt with in accordance with the directions of the International Criminal Court.

(13) Section39 shall apply in relation to the registration of enforcement orders as it does in relation to the registration of freezing orders and shall have effect accordingly, with any necessary modifications.

Table

41. Realisation of property.

41.— (1) Where an enforcement order which is not subject to appeal has not been satisfied, the High Court may exercise the powers conferred by this section.

(2) Where subsection(1) applies, the Court may, in relation to any realisable property—

(a) appoint a person to be a receiver in respect of it,

(b) empower the receiver to take possession of it, subject to such conditions or exceptions as the Court may specify,

(c) order any person having possession or control of it to deliver it to the receiver,

(d) empower the receiver to realise it in such manner as the Court may direct,

(e) order any person holding an interest in it to make to the receiver such payment as the Court may direct in respect of any beneficial interest held in it by the defendant or, as the case may be, by the recipient of any gift caught by this Act, and

(f) on the payment being made, by order transfer, grant or extinguish any such beneficial interest.

(3) The Court shall not exercise the powers conferred by this section unless a reasonable opportunity has been given to persons holding any interest in the property concerned to make representations to it in relation to such exercise.

42. Exercise of powers by High Court or receiver.

42.— (1) In this section “powers” means the powers conferred on the High Court by section38(11) or 41(2) or on a receiver appointed under either of those provisions.

(2) Subject to subsection(3), the powers shall be exercised with a view to—

(a) securing that the property covered by an order under either of those provisions is available to satisfy any order of the International Criminal Court imposing a fine or forfeiture or providing for reparation to, or in respect of, victims,

(b) in the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part, realising no more than the value for the time being of the gift,

(c) allowing any person, other than the defendant or the recipient of any such gift, to retain or recover the value of any property held by him or her.

(3) In exercising the powers no account shall be taken of any obligations of the defendant or of the recipient of any such gift that conflict with the obligation to satisfy the freezing order or ICC order concerned.

43. Receivers: supplementary provision.

43.— A receiver who—

(a) takes any action in relation to property which is not realisable property, being an action which a receiver would be entitled to take if it were realisable property, and

(b) believes, and has reasonable grounds for believing, that he or she is entitled to take that action in relation to that property,

is not liable to any person in respect of any loss or damage resulting from the action except in so far as the loss or damage is caused by his or her negligence.

44. Bankruptcy of defendant, etc.

44.— (1) Where a person who holds realisable property is adjudicated bankrupt, the following property is excluded from the property of the bankrupt for the purposes of the Act of 1988:

(a) any property for the time being subject to—

(i) a freezing order made before the order of adjudication, or

(ii) an ICC order which is the subject of an enforcement order made before the order of adjudication;

(b) any property realised by virtue of section38(11) or 41(2)and for the time being in the hands of a receiver.

(2) Where a person was adjudicated bankrupt before the passing of this Act, the powers of the High Court or a receiver under either of those sections shall not be exercised in relation to property of the bankrupt for the purposes of the Act of 1988.

(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift caught by this Part—

(a) any decision as to whether the gift is void shall not be made under section 57, 58 or 59 of the Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a freezing order or an enforceable ICC order, and

(b) any such decision made after the discharge of the freezing order or enforceable ICC order shall take into account any realisation under this Part of property held by the person to whom the gift was made.

(4) Where a petition in bankruptcy was presented, or an adjudication in bankruptcy made, before 1 January 1989, this section shall have effect with the modification that for references to the property of the bankrupt for the purposes of the Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy in force before that date.

45. Property dealt with by Official Assignee.

45.— (1) Without prejudice to the generality of any provision of any other enactment, where—

(a) the Official Assignee or a trustee appointed under Part V of the Act of 1988 seizes or disposes of any property in relation to which his or her functions are not exercisable because it is for the time being subject to a freezing order or an enforceable ICC order, and

(b) at the time of the seizure or disposal he or she believes, and has reasonable grounds for believing, that he or she is entitled (whether in pursuance of an order of a court or otherwise) to seize or dispose of the property,

he or she—

(i) is not liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his or her negligence, and

(ii) has a lien on the property, or the proceeds of its sale, for such of his or her expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his or her remuneration as may reasonably be assigned for his or her acting in connection with those proceedings.

(2) Where the Official Assignee or a trustee appointed as aforesaid—

(a) incurs expenses in respect of such property, and

(b) does not know, and does not have reasonable grounds for believing, that the property is for the time being subject to a freezing order or an enforceable ICC order,

he or she is entitled (whether or not he or she has seized or disposed of the property so as to have a lien) to payment of those expenses under section49.

46. Winding up of company holding realisable property.

46.— (1) In this section—

“company” means any company which may be wound up under the Companies Acts 1963 to 2005;

“relevant time” means—

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for its voluntary winding up,

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

(c) in any other case where such an order has been made, the time of the making of the order.

(2) Where realisable property is held by a company and an order for its winding up has been made or a resolution for its voluntary winding up has been passed by it, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—

(a) property for the time being subject to—

(i) a freezing order which was made before the relevant time, or

(ii) an ICC order which is the subject of an enforcement order made before that time,

(b) any property realised by virtue of such an order for the time being in the hands of a receiver appointed under this Part.

(3) Where an order for the winding up of a company has been made or such a resolution passed, the powers of the High Court or of such a receiver shall not be exercised in relation to any realisable property held by the company concerned—

(a) so as to inhibit the exercise of those powers for the purpose of distributing any property held by the company to the company's creditors, or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

47. Interest on sums unpaid under enforcement orders.

47.— (1) If any sum required to be paid by a person under an enforceable ICC order is not paid when it is required to be paid (whether forthwith on the making of the enforcement order concerned or at a time specified in the ICC order), the person shall be liable to pay interest on the sum for the period for which it remains unpaid.

(2) The amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from the person under the enforceable ICC order.

(3) The rate of interest shall be that for the time being applicable to a High Court civil judgment debt.

48. Currency of payments under enforcement orders.

48.— (1) An amount payable in the State under an enforceable ICC order shall be paid in euro.

(2) If the amount payable is expressed in the enforceable ICC order in a currency other than the euro, the payment shall be made on the basis of the exchange rate prevailing, on the date the enforcement order is made, between the euro and that currency.

(3) For the purposes of this section a certificate purporting to be signed by an officer of an authorised institution and to state the exchange rate prevailing on a specified date between a specified currency and the euro shall be admissible in any proceedings, without further proof, as evidence of the facts stated in the certificate.

(4) In this section, “authorised institution” means—

(a) a person who holds or has held a licence from the F5[Central Bank of Ireland] under section 9 of the Central Bank Act 1971,

(b) a person referred to in section 7(4) of that Act, or

(c) a credit institution (within the meaning of the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992)) which has been authorised by that Authority to carry on the business of a credit institution in accordance with the supervisory enactments within the meaning of those Regulations.

49. Application of proceeds of realisation.

49.— (1) Money paid or recovered in respect of an enforceable ICC order (including any variation of such an order) may, to any extent necessary, be applied to meet expenses incurred in exercising any powers under this Act and the remuneration of any person employed for that purpose.

(2) Any such money shall, after payment of any such expenses or remuneration, be transferred, in accordance with the directions of the Minister, to the International Criminal Court or, if so ordered by that Court, directly to the Trust Fund provided for in Article 79 for the benefit of victims of crimes within its jurisdiction and of families of those victims.

PART 5 Other Requests

50. Identification evidence.

50.— (1) F6[In this section and insection 50A]—

F7[‘Act of 2014’means the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014;]

“bodily sample” means any of the following:

(a) a sample of blood, hair, urine or saliva;

(b) a nail clipping or any material found under a nail;

(c) a swab from any part of the body;

(d) a footprint or a similar impression of any part of the body, including a dental impression;

F6[‘consent’, subject tosubsections (1B)and(1J), means—

(a) subject toparagraph (b), in the case of a person who has attained the age of 18 years, the consent in writing of the person,

(b) in the case of a protected person—

(i) the consent in writing of a parent or guardian of the person, or

(ii) an order of the District Court undersection 50Aauthorising the taking of the identification evidence concerned from the person,

(c) in the case of a child (other than a protected person)—

(i) who has attained the age of 14 years, the consent in writing of the child and either—

(I) the consent in writing of a parent or guardian of the child, or

(II) an order of the District Court undersection 50Aauthorising the taking of the identification evidence concerned from the child,

(ii) who has not attained the age of 14 years, either—

(I) the consent in writing of a parent or guardian of the child, or

(II) an order of the District Court undersection 50Aauthorising the taking of the identification evidence concerned from the child;]

“dentist” means a person whose name is entered for the time being in the Register of Dentists maintained under the Dentists Act 1985;

F7[‘DNA’means deoxyribonucleic acid;

‘DNA profile’, in relation to a person, means information comprising a set of identification characteristics of the non-coding part of DNA derived from an examination and analysis of a bodily sample from the person and that is capable of comparison with similar information derived from an examination and analysis of another sample of biological material for the purpose of determining whether or not that other sample could relate to that person;]

“doctor” means a person whose name is entered for the time being in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act 1978;

F7[‘guardian’, in relation to a child (including a protected person who is a child), has the meaning it has in the Act of 2014;]

F6[‘identification evidence’, in relation to a person, means—

(a) a fingerprint, palm print, iris identification or photograph of the person, or

(b) a bodily sample from the person or the DNA profile of the person generated from such a sample,

and includes any related records.]

F7[‘non-coding part of DNA’, in relation to a person, means the chromosome regions of the person’s DNA that are not known to provide for any functional properties of the person;

‘nurse’means a person whose name is entered for the time being in the nurses’division of the register of nurses and midwives established undersection 46of theNurses and Midwives Act 2011;

‘parent’, in relation to a protected person or child, has the meaning it has in the Act of 2014;

‘protected person’means, subject tosubsection (1A), a person (including a child) who, by reason of a mental or physical disability—

(a) lacks the capacity to understand the general nature and effect of the taking of identification evidence from him or her, or

(b) lacks the capacity to indicate (by speech, sign language or any other means of communication) whether or not he or she consents to identification evidence being taken from him or her;

‘retention period’means—

(a) in the case of identification evidence, other than a fingerprint, palm print, iris identification or photograph of a person, the period from the taking of the evidence concerned to the latest date for the destruction of that evidence undersubsection (12), and

(b) in the case of identification evidence consisting of a fingerprint, palm print, iris identification or photograph of a person (including any related records)—

(i) 6 years from the taking of the evidence concerned from the person, or

(ii) if the person falls underparagraph (c)or(d)ofsubsection (12), 3 months from the quashing or reversing, as the case may be, of the conviction concerned,

whichever is the later.]

F8[(1A) The reference in the definition of‘protected person’in subsection (1) to a mental or physical disability in relation to a person (including a child) shall be construed as not including a reference to the person being under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances.

(1B) Where, in relation to the ICC offence concerned, identification evidence is to be taken from a protected person or a child, the consent in writing of a parent or guardian of the protected person or child shall not be sought from a parent or guardian of the protected person or child, as the case may be, if—

(a) he or she is the victim of that offence in circumstances in which the protected person is suspected of having committed that offence,

(b) he or she has been arrested in respect of that offence,

(c) a member of the Garda Síochána (in this section called‘a member’) not below the rank of inspector has reasonable grounds for suspecting him or her of complicity in that offence, or

(d) a member not below the rank of inspector has reasonable grounds for believing that he or she is likely to obstruct the course of justice.

(1C)Subsection (1B)shall not prevent a parent or guardian of a protected person or a child who does not fall under paragraph(a), (b), (c)or(d)of that subsection from giving the consent required.

(1D) Before a member seeks the consent in writing of a parent or guardian of a protected person to the taking of identification evidence from the person, the member shall inform the parent or guardian of the matters referred to insubsection (4)in relation to the person.

(1E) Before a member seeks the consent in writing of a parent or guardian of a child to the taking of identification evidence from the child, the member shall inform the parent or guardian of the matters referred to insubsection (4)in relation to the child.

(1F) If a person withdraws a consent he or she had given to the taking of identification evidence under this section (or if the withdrawal of that consent can reasonably be inferred from the conduct of the person) before or during the taking of the identification evidence, that withdrawal of consent shall be treated as a refusal to give consent to the taking of that identification evidence.

(1G) A withdrawal of consent undersubsection (1F)shall be recorded in writing by a member as soon as practicable after such withdrawal.

(1H) Subject tosubsections (1L)and(1M), the consent of a person to the taking of identification evidence under this section may not be withdrawn after the identification evidence has been taken.

(1I) In this section references to a person giving his or her consent in writing to the taking of identification evidence under this section (whether from the person himself or herself or another person) shall include references to—

(a) the person signing a document, or

(b) in case the person is unable to write, the person making his or her mark on a document,

to indicate his or her consent.

(1J) In the application of this section andsection 50Ain relation to a protected person or a child who is married, the references to a parent or guardian of the person or child, as the case may be, shall be construed as references to his or her spouse.

(1K) The identification evidence concerned shall, if it is reasonably practicable to do so, be taken from a protected person or a child in the presence of the person who gave consent under this section for the taking of that identification evidence from the protected person or child, as the case may be, unless the protected person or child indicates that he or she does not wish to have that person present.

(1L) If identification evidence taken under this section and transmitted pursuant to a request relates to a person who was not, at the time the evidence was taken, suspected of having committed the ICC offence concerned, the person, or another person who gave consent to the taking of the identification evidence from the person, may by notice in writing sent or given to the Commissioner request the destruction of the evidence.

(1M) The Commissioner shall, following the receipt of a notice undersubsection (1L), inform the Minister of it and the Minister shall, subject to an order made undersubsection (13A), request the Court to which the evidence concerned was transmitted to destroy the evidence as soon as practicable and, in any event, to do so not more than 4 months after the receipt by the Commissioner of the notice undersubsection (1L).

(1N) In this section a reference to identification evidence in the possession of the Garda Síochána shall include a reference to identification evidence in the possession of Forensic Science Ireland of the Department of Justice and Equality.]

(2) Subject to section4, the Minister may, in pursuance of a request from the International Criminal Court under Article 93.1(a) for assistance in obtaining identification evidence, send the request to the Commissioner of the Garda Síochána for necessary action, if satisfied as to the matters mentioned in subsection(3).

(3) The matters referred to in subsection(2) are—

(a) that any identification evidence provided will be used only for the investigation or prosecution of an ICC offence, and

F9[(b) that the evidence—

(i) will be returned by the Court—

(I) when no longer required for that purpose, unless the Minister indicates otherwise, or

(II) when requested by the Minister for the purposes of destroying the evidence—

(A) to comply with a request to do so by or on behalf of the person to whom the identification evidence relates, or

(B) in accordance withsection 4of theCriminal Justice (Forensic Evidence) Act 1990, Part 10 of the Act of 2014 or any statutory provision providing for the destruction of fingerprints, palm prints or photographs of persons, as may be appropriate,

or

(ii) will be dealt with in accordance withsubsections (12)and(13).]

(4) If or in so far as the identification evidence requested is not in the possession of the Garda Síochána, the Commissioner shall instruct a member F10[…] to inform the person who is to provide the evidence—

(a) of the nature of the evidence,

(b) that it has been requested by the International Criminal Court in connection with the investigation or prosecution of an offence within its jurisdiction,

(c) that he or she is not obliged to provide the evidence, F10[…]

F11[(d) that, if he or she does consent to provide it, it may be given in evidence in proceedings before the Court, and]

F12[(e) that the evidence may be destroyed in accordance with this section.]

(5) F13[Subject tosubsections (1B)to(1K), if a person consents to provide the evidence], the member may take the evidence, or cause it to be taken, in compliance with the request and any requirements specified in the request in relation to its taking.

(6) If a person who is to provide the identification evidence is in custody—

(a) evidence may be taken under this section only if it relates to an offence other than that for which the person is in custody, and

(b) any evidence provided may be taken where the person is in custody or at another place.

(7) A bodily sample consisting of blood, pubic hair or a swab from a body orifice (other than the mouth) or a genital region may be taken under this section only by a doctor F14[or nurse], and a dental impression may be so taken only by a dentist or doctor.

(8) If required by the Court, the Commissioner may arrange for a forensic test to be performed on a swab from a body orifice or a genital region.

(9) A sample of hair other than pubic hair may be taken under this section by cutting hairs or by plucking hairs singly with their roots and, where hairs are plucked, no more shall be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample for the purpose of forensic testing or comparison purposes.

(10) The following particulars shall be recorded by the member who takes identification evidence—

(a) the place, time and date at which it was taken,

(b) the result of any forensic test on the evidence,

(c) any other relevant particulars, including any specified by the Court,

and the record shall include a copy of the consent to the taking of the evidence.

(11) The Commissioner shall send to the Minister any identification evidence—

(a) in the possession of the Garda Síochána, or

(b) taken under subsection(5), together with a copy of the record made under subsection(10),

for transmission to the Court.

F15[(11A) Subject tosubsections (12)and(13), any identification evidence taken undersubsection (5)that is transmitted to the Court and returned by it when no longer required for the purpose specified in the request shall be destroyed as soon as practicable after its return.

(11B) The provisions of subsections (7), (8), (9) and (11) ofsection 3, andsection 97, of the Act of 2014 insofar as they apply to the destruction of samples and DNA profiles of persons under that Act shall apply, with any necessary modifications, in relation to the destruction of identification evidence, other than fingerprints, palm prints, iris identifications or photographs of persons, undersubsection (11A).

(11C) The provisions of section 8H of theCriminal Justice Act 1984insofar as they apply to the destruction of fingerprints, palm prints or photographs of persons shall apply, with any necessary modifications, in relation to the destruction of fingerprints, palm prints, iris identifications or photographs of persons undersubsection (11A).]

F16[(12) When transmitting the identification evidence to the Court the Minister shall, ifsubsection (3)(b)(i)does not apply and subject tosubsection (13), obtain an assurance that the evidence, as well as the record of any analysis of the evidence, or any other record relating to it, that may be made by the Court, will be destroyed when no longer required for the purpose specified in the request concerned and, in any event, not later than the expiration of the period of 3 months from the date on which any of the following circumstances first apply to the person the subject of that request:

(a) proceedings for an ICC offence are not instituted against that person within the period of 12 months from the taking of the identification evidence concerned from him or her and the failure to institute such proceedings within that period is not due to the fact that he or she has absconded or cannot be found;

(b) proceedings for an ICC offence have been instituted against that person and he or she is acquitted or the charge against him or her is dismissed or the proceedings are discontinued;

(c) that person is convicted of an ICC offence and the conviction is quashed; or

(d) that person is convicted of an ICC offence and the conviction is reversed following an application pursuant to Article 84.]

F17[(13) The Minister may, at the request of the Court and having consulted the Commissioner, direct that the retention period in respect of identification evidence transmitted to the Court be extended in accordance with an order made undersubsection (13A).]

F18[(13A) If a judge of the District Court is satisfied, on an application in that behalf by the Commissioner, that there is good reason why identification evidence transmitted pursuant to a request should not be destroyed by the Court in accordance withsubsection (12), or a request to do so undersubsection (1L), the judge may make an order authorising the retention of the identification evidence for such purpose permitted by this section for such period as he or she considers appropriate.

(13B) If the Commissioner intends to make an application undersubsection (13A), he or she shall inform by notice in writing the person from whom the identification evidence concerned was taken, and any person who gave consent to the taking of that identification evidence from that person, of that intention.

(13C) If, on an application undersubsection (13A), the person from whom the identification evidence was taken, or any other person who gave consent to the taking of that identification evidence from that person, applies to be heard by the judge of the District Court, an order shall not be made under that subsection unless a reasonable opportunity has been given to that person to be heard.

(13D) An application undersubsection (13A)shall be made to a judge of the District Court who is assigned to the district court district in which the person from whom the identification evidence concerned was taken resides.

(13E) An application undersubsection (13A)shall be heard otherwise than in public.

(13F) In determining an application undersubsection (13A), a judge of the District Court may make such order as to costs as the judge considers appropriate.

(13G) A notice undersubsection (13B)may be sent or given to a person in one of the following ways:

(a) by delivering it to the person or his or her solicitor;

(b) by addressing it to the person and leaving it at the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, at that address or by addressing it to his or her solicitor and leaving it at the solicitor’s office;

(c) by sending it to the person by post in a prepaid registered letter to the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, to that address or to his or her solicitor at the solicitor’s office.]

50A. Application for court order authorising taking of identification evidence from protected person or child

F19[50A.—(1) If—

(a) a member of the Garda Síochána is unable, having made reasonable efforts to do so, to contact a parent or guardian of a protected person or child, as the case may be, for the purposes of ascertaining whether or not he or she consents to the taking of the identification evidence concerned from the person or child, as the case may be, undersection 50,

(b) subject tosubsection (1C)ofsection 50, the circumstances referred to insubsection (1B)of that section exist in relation to a parent or guardian of a protected person or child, as the case may be, or

(c) a protected person or child, as the case may be, does not have, or a member of the Garda Síochána not below the rank of inspector cannot, having made reasonable efforts to do so, ascertain within a reasonable period whether the person or child, as the case may be, has, a living parent or guardian from whom consent to the taking of the identification evidence concerned from the person or child, as the case may be, may be sought undersection 50,

a member of the Garda Síochána not below the rank of inspector may apply to a judge of the District Court for an order authorising the taking of the identification evidence concerned from the protected person or child, as the case may be.

(2) A member of the Garda Síochána who intends to make an application undersubsection (1)shall inform the protected person or child, as the case may be, concerned of that intention.

(3) A judge of the District Court may order—

(a) that an application undersubsection (1)shall be heard otherwise than in public, or

(b) that a parent or guardian of the protected person or child, as the case may be, concerned to whomsection 50(1B)applies shall be excluded from the Court during the hearing of the application,

or both if—

(i) on an application in that behalf by a member of the Garda Síochána not below the rank of inspector, the judge is satisfied that it is desirable to do so in order to avoid a risk of prejudice to the investigation or prosecution of the ICC offence concerned in connection with which the identification evidence concerned has been sought pursuant to the request, or

(ii) the judge considers that it is otherwise desirable in the interests of justice to do so.

(4) A judge of the District Court shall, for the purposes of determining an application undersubsection (1)—