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PART II
DISCONTINUANCE OF PROCEEDINGS IN NATIONAL COURTS
Discontinuance of relevant proceedings
13
.
- (1) This article applies where the Secretary of State receives from either of the International Tribunals a request in accordance with the Statute and the Rules that a national court should defer to the competence of that International Tribunal by discontinuing proceedings to which the request relates.
(2) The Secretary of State shall transmit the request to the court in which the proceedings are taking place by a notice addressed to the Attorney General who shall forthwith notify the Judicial Greffier.
(3) If the court to which a request is transmitted is satisfied that -
(a) the request relates to relevant proceedings within the meaning of this article, and
(b) in the case of proceedings which are relevant proceedings by virtue of paragraph (5)(a), those proceedings are in respect of conduct which would constitute an International Tribunal crime,
the court shall order the discontinuance of the proceedings and may make such other orders as are appropriate to give effect to the request, including the revocation of a warrant of arrest issued in connection with the proceedings.
(4) For the purpose of considering a request transmitted to it in pursuance of this article, the court may adjourn the proceedings for such period or periods, and on such conditions, as it deems fit; and if the court is not satisfied as to the matters specified in paragraph (3), it shall make no order for the discontinuance of the proceedings.
(5) Relevant proceedings within the meaning of this article are -
(a) proceedings in the Magistrate's Court or the Royal Court in connection with an offence punishable with imprisonment of which the accused has not yet been convicted,
(b) proceedings under the Extradition Act 1989[6] relating to a person in respect of whom an arrest warrant has been issued pursuant to section 8 of or paragraph 5 of Schedule 1 to that Act or proceedings in connection with such proceedings, or
(c) proceedings under the Backing of Warrants (Republic of Ireland) Act 1965[7] relating to a person in respect of whom a warrant has been endorsed pursuant to section 1 of that Act or a provisional warrant has been issued pursuant to section 4 of that Act or proceedings in connection with such proceedings.
(6) The discontinuance of any proceedings in pursuance of a request by either of the International Tribunals shall not of itself prevent -
(a) the institution of fresh proceedings in a national court, or
(b) the issue under section 7 of the Extradition Act 1989 of a fresh authority to proceed or the making of a fresh order by the Secretary of State under paragraph 4 of Schedule 1 to that Act, or
(c) the endorsement of a fresh warrant or the issue of a fresh provisional warrant under the Backing of Warrants (Republic of Ireland) Act 1965,
in respect of the same offence.
PART III
OTHER FORMS OF ASSISTANCE TO THE INTERNATIONAL TRIBUNALS
Transmission of information and records
14
.
- (1) This article applies where the Secretary of State receives from either of the International Tribunals -
(a) a request for information relating to any relevant proceedings within the meaning of article 13 or to any investigation of conduct which would constitute an International Tribunal crime, or
(b) as part of a request mentioned in article 13(1), a request for the forwarding of the results of any investigation of conduct relating to relevant proceedings within the meaning of article 13 and a copy of the court's record.
(2) The Secretary of State shall take such steps as appear to him to be appropriate to secure the production to him of the information or record requested and on its production to him shall transmit it to the International Tribunal which made the request.
Search etc. for material relevant to International Tribunal investigation
15
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- (1) If, on an application made by the Attorney General, it appears to the Bailiff -
(a) that proceedings have been instituted for the indictment of a person by either of the International Tribunals or that a person has been arrested in the course of an investigation by either of the International Tribunals, and
(b) that the conduct constituting the International Tribunal crime which is the subject of the proceedings or investigation would constitute an offence punishable by imprisonment if it had occurred in Jersey,
the Bailiff shall have the like power to grant a warrant authorising entry, search and seizure by any police officer as he would have at customary law in respect of any offence punishable at customary law in Jersey.
(2) No application for a warrant shall be made by virtue of paragraph (1) except in pursuance of a direction given by the Secretary of State in response to a request received from one of the International Tribunals, and any evidence seized by a police officer by virtue of this article shall be furnished by him to the Attorney General who shall furnish the same to the Secretary of State for transmission to the International Tribunal which made the request.
(3) If in order to comply with the request it is necessary for any such evidence to be accompanied by any certificate, affidavit or other verifying document the police officer shall also furnish for transmission such document of that nature as may be specified in the direction given by the Secretary of State.
(4) Where the evidence consists of a document the original or a copy shall be transmitted, and where it consists of any other article the articleitself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the request.
Evidence for International Tribunal use
16
.
- (1) This article applies where the Secretary of State receives from either of the International Tribunals a request for assistance in obtaining evidence in Jersey in connection with proceedings that have been instituted before that International Tribunal or an investigation that is being carried on by it.
(2) If the Secretary of State is satisfied -
(a) that an International Tribunal crime has been committed or that there are reasonable grounds for suspecting that such a crime has been committed, and
(b) that proceedings in respect of that crime have been instituted before the International Tribunal or that an investigation is being carried on by it,
he may, if he thinks fit, institute proceedings before the Royal Court for the purpose of receiving such of the evidence to which the request relates as may appear to the court to be appropriate for the purpose of giving effect to the request.
(3) In this article "evidence" includes documents and other articles.
(4) The Schedule to this Order has effect for the purpose of proceedings before the Royal Court pursuant to this article.
(5) In proceedings before the Royal Court, it may, if it thinks it necessary in the interests of justice, direct that the public be excluded from the court.
(6) The Royal Court shall ensure that a register is kept of the proceedings which indicates in particular -
(a) which persons with an interest in the proceedings were present,
(b) which of those persons were represented and by whom, and
(c) whether any of those persons were denied the opportunity of cross-examining a witness as to any part of his testimony,
but save as authorised by the Secretary of State or with the leave of the court, the register shall not be open to inspection.
(7) The evidence received by the Royal Court, together with a copy of the register of the proceedings, shall be furnished to the Secretary of State for transmission to the International Tribunal which made the request.
(8) If in order to comply with the request it is necessary for the evidence or deposition to be accompanied by any certificate, affidavit or other verifying document, the court shall also furnish for transmission such document of that nature as may be specified in the notice instituting the proceedings before the Royal Court pursuant to this article.
(9) Where evidence consists of a document the original or a copy shall be transmitted, and where it consists of any other article the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the request.
Service of process
17
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- (1) This article applies where the Secretary of State receives from either of the International Tribunals -
(a) a summons or other process requiring a person (not being a prisoner) to appear before that International Tribunal for the purpose of giving evidence or assisting an investigation or for both purposes, or
(b) a document notifying interested parties of a special hearing to determine the matter of restitution of specified property or the proceeds thereof and affording them the opportunity to justify a claim to the property or its proceeds,
together with a request for it to be served on a person in Jersey.
(2) The Secretary of State may cause the process or document to be served by post or, if the request is for personal service, direct the Chief Officer of Police to cause it to be personally served on him.
(3) Service by virtue of this article of any process mentioned in paragraph (1)(a) imposes an obligation to comply with it; and any such process shall be accompanied by a notice stating the effect of this paragraph and of article 8 (securing attendance of person as witness or to assist in investigations).
(4) Any document mentioned in paragraph (1)(b) shall indicate that the person on whom it is served may wish to seek advice as to the possible consequences of failing to justify a claim.
(5) Where the Chief Officer of Police is directed under this article to cause any process or document to be served he shall after it has been served forthwith inform the Secretary of State when and how it was served and (if possible) furnish him with a receipt signed by the person on whom it was served; and if the Chief Officer of Police has been unable to cause the process or document to be served he shall forthwith inform the Secretary of State of that fact and of the reason.
Enforcement of orders for the preservation or restitution of property
18
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- (1) Where the Secretary of State receives from either of the International Tribunals -
(a) an order for provisional measures for the preservation and protection of property or the proceeds of property, or
(b) an order for the restitution of property or the proceeds of property,
and the property is, or, as the case may be, the proceeds are, believed to be in Jersey, the Secretary of State shall append to the order a direction that it be registered for enforcement in Jersey.
(2) The court shall register the order on the application of the person entitled to enforce it; but -
(a) where it is shown that an order has been partly complied with at the date of application for its registration, the court shall register the order only so far as it has not been complied with at that date, and
(b) where, after the date of registration of an order, it is shown that the order had been partly or wholly complied with at that date, the court shall vary or cancel the registration of the order accordingly with effect from that date.
(3) For the purposes of enforcement of an order registered under this article -
(a) the order shall have the same force and effect,
(b) the court shall have in relation to its enforcement the same powers, and
(c) proceedings for or with respect to its enforcement may be taken,
as if the court had originally made the order.
(4) Where the International Tribunal concerned makes an order (a "suspending order") that enforcement of a registered order be suspended, the suspending order shall, on its production to the court, be registered immediately; and -
(a) the suspending order shall have effect as if it had been an order made by the court which stayed the execution of the original registered order for the same period and on the same conditions as are stated in the suspending order, and
(b) while the suspending order remains in force, no steps shall be taken to enforce the original registered order.
(5) The reasonable costs and expenses of and incidental to the registration of an order under this article (including any variation or cancellation of the registration) shall be recoverable as if they were sums recoverable under the order.
(6) In this article and article 19 "the court" means the Royal Court.
Proceedings to determine the ownership of property
19
.
Where the Secretary of State receives a request from either of the International Tribunals to determine the ownership of property or the proceeds of property, and the property is, or, as the case may be, the proceeds are, believed to be in Jersey, he may make an application to the court for a decision as to the ownership of the property or proceeds.
Immunities and privileges
20
.
- (1) The International Tribunals, the judges, the Prosecutor and his staff and the Registrar and his staff shall enjoy the like immunities and privileges (subject to any consequential modifications and adaptations) as are enjoyed by them in the United Kingdom as set out in the United Nations and International Court of Justice (Immunities and Privileges) Order 1974[8] ("the 1974 Order") as follows -
(a) the International Tribunals shall enjoy the immunities and privileges set out in articles 5 to 13 of the 1974 Order as they apply to the United Nations;
(b) the judges, the Prosecutor and the Registrar shall enjoy the immunities and privileges set out in article 15(1) and (2) of the 1974 Order as they apply to high officers of the United Nations;
(c) staff of the Prosecutor and of the Registrar shall enjoy the immunities and privileges set out in article 16 of the 1974 Order as they apply to officers of the United Nations.
(2) Except in so far as in any particular case any immunity is waived by the International Tribunal concerned, counsel, advocates, solicitors and witnesses shall enjoy immunity from suit and legal process in respect of words spoken or written and documents or other evidence submitted by them before or to either of the International Tribunals.
PART IV
SUPPLEMENTARY PROVISIONS
Warrants of arrest
21
.
- (1) For the purposes of any enactment or rule of law relating to warrants of arrest but subject to any other provisions of this Order -
(a) a warrant endorsed in accordance with article 4,
(b) a provisional warrant issued under article 5, and
(c) a warrant issued under article 8,
in Jersey shall be treated as if it were a warrant for the arrest of a person charged with an offence committed in Jersey.
(2) A warrant mentioned in paragraph (1) may be executed in Jersey and may be so executed by any police officer.
(3) A person arrested under a warrant mentioned in paragraph (1) shall be deemed to continue in legal custody until, in accordance with this Order, he is brought before the Magistrate's Court; and article 23 shall accordingly apply in relation to that person as it applies in relation to a person in respect of whom a delivery order or transfer warrant is in force.
Proceedings before the Magistrate's Court under article 6, 8 or 9
22
.
For the purposes of proceedings under article 6, 8 or 9, the Magistrate's Court shall have the like powers, including power to adjourn the case and meanwhile to remand the person arrested either in custody or on bail, as if the proceedings were in respect of an offence alleged to have been committed by that person.
Legal custody
23
.
- (1) A person in respect of whom a delivery order or transfer warrant is in force shall be deemed to be in legal custody at any time when, being in Jersey or on board -
(a) any vessel registered or required to be registered under any enactment for the time being in force in Jersey,
(b) any British-controlled aircraft or hovercraft (within the meaning of section 92 of the Civil Aviation Act 1982[9] or, as the case may be, that section as applied to hovercraft by virtue of provision made under the Hovercraft Act 1968[10], or
(c) any ship, aircraft or hovercraft belonging to, or exclusively employed in the service of, Her Majesty in right of the Government of the United Kingdom or the States of Jersey,
he is being taken under the order or warrant to or from any place or is being kept in custody under the order or warrant or, pending the execution of the order or warrant, on remand.
(2) A person authorised by or for the purposes of a delivery order or transfer warrant to take another person to or from any place or to keep that person in custody shall have all the powers, authority, protection and privileges of a police officer.
(3) If a prisoner or any person who is in custody by virtue of this Order escapes or is unlawfully at large, he may be arrested without warrant by a police officer and taken to any place where or to which, by virtue of this Order, he is required to be or to be taken.
Custodial sentences under Jersey law
24
.
- (1) Where in pursuance of this Order a person who is a prisoner is delivered up into the custody of -
(a) either of the International Tribunals, or
(b) a state where he is to undergo imprisonment under a sentence of either of the International Tribunals,
the prisoner shall continue to be liable to complete any term of imprisonment or detention to which he has been sentenced by a national court; but there shall be counted towards the completion of that term any time during which he is in the custody of that International Tribunal or another state.
(2) Where in pursuance of this Order a court orders the discharge of a person who is a prisoner, the discharge is without prejudice to the liability of the prisoner to complete any term of imprisonment or detention to which he has been sentenced by a national court; and accordingly a prisoner to whom such an order relates and whose sentence has not expired shall be transferred in custody to the place where he is liable to be detained under the sentence to which he is subject.
(3) Where in pursuance of this Order a delivery order is made or transfer warrant is issued in respect of a person who is a prisoner, the order or warrant may include provision authorising the return of the prisoner into the custody of the Secretary of State -
(a) in accordance with arrangements made by the Secretary of State with the Registrar, or
(b) in the case of a prisoner taken to a place where he is to undergo imprisonment under a sentence of either of the International Tribunals, in accordance with arrangements made by the Secretary of State with the state where that place is situated,
and for his transfer in custody to the place where he is liable to be detained under the sentence to which he is subject.
Evidence
25
.
- (1) For the purposes of this Order and any connected proceedings, an International Tribunal document may be taken to be such a document and to have been duly issued or made (and it shall accordingly be received in evidence without further proof) if -
(a) it purports to have been issued or made in accordance with the Statute or the Rules or, in the case of a request to the Secretary of State, for the purposes of this Order, or
(b) it is verified by a certificate purporting to be signed by the President of the International Tribunal concerned, the Registrar or the Prosecutor certifying that the document is an International Tribunal document or, as the case may be, a true copy of such a document.
(2) In this article "International Tribunal document" means -
(a) a warrant, order, summons or other process of either of the International Tribunals,
(b) a copy of such warrant, order, summons or other process, or
(c) a request to the Secretary of State by either of the International Tribunals,
and the reference to the President of the International Tribunal, the Registrar or the Prosecutor includes a reference to any person lawfully exercising the functions of the President, the Registrar or the Prosecutor, as the case may be.
(3) Judicial notice shall be taken of the Statute, the Rules and the seal of each of the International Tribunals.
N. H. Nicholls
Clerk of the Privy Council
SCHEDULE
Article 16(4)
LOCAL EVIDENCE FOR INTERNATIONAL TRIBUNAL USE: PROCEEDINGS BEFORE THE ROYAL COURT
Securing attendance of witnesses
1. The Royal Court shall have the like powers for securing the attendance of witnesses for the purpose of the proceedings as it has for the purpose of other criminal proceedings before the Royal Court.
Power to administer oaths
2. The Royal Court may in the proceedings take evidence on oath.
Privilege of witnesses
3. - (1) A person shall not be compelled to give in the proceedings any evidence which he could not be compelled to give -
(a) in criminal proceedings before the Royal Court; or
(b) subject to sub-paragraph (2), in proceedings before the International Tribunal concerned.
(2) Sub-paragraph (1)(b) shall not apply unless the claim of the person questioned to be exempt from giving the evidence is conceded by the International Tribunal concerned.
(3) Without prejudice to sub-paragraph (1), a person shall not be compelled under this Schedule to give any evidence if his doing so would be prejudicial to the security of Jersey; and a certificate signed by or on behalf of the Attorney General to the effect that it would be so prejudicial for that person to do so shall be conclusive evidence of that fact.
(4) Without prejudice to sub-paragraph (1), a person shall not be compelled under this Schedule to give any evidence in his capacity as an officer or servant of the Crown.
(5) In this paragraph, references to giving evidence include references to answering any question and to producing any document or other article.
Bankers' Books
4. For the avoidance of doubt, it is hereby declared that the Bankers' Books Evidence (Jersey) Law, 1986 applies to the proceedings as it applies to other proceedings before the Royal Court.
Costs
5. No order for costs shall be made in the proceedings.
EXPLANATORY NOTE
(This note is not part of the Order)
This Order makes provision as respects Jersey to implement resolutions of the Security Council of the United Nations relating to the former Yugoslavia and Rwanda.
The Order has effect for the purpose of enabling Jersey to co-operate with -
(a) the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 established by Resolution 827 (1993) of the Security Council of the United Nations; and
(b) the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring states, between 1st January 1994 and 31st December 1994, established by Resolution 995 (1994) of the Security Council of the United Nations,
("International Tribunals") in the investigation and prosecution of persons accused of committing International Tribunal crimes and the punishment of persons convicted of such crimes.
Notes:
[6]
1989 c.33.
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[7]
1965 c.45.
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[8]
S.I. 1974/1261, amended by S.I. 1975/1209.
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[9]
1982 c.16, as extended, and modified in its extension, to Jersey by S.I. 1990/2145.
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[10]
1968 c.59.
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ISBN
0 11 063909 X
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