Amendments Nos. 1 and 2 are cognate, amendment No. 18 is consequential on amendment No. 1 and amendment No. 19 is consequential on amendment No. 2. Amendments Nos. 1, 2, 18 and 19 may be discussed together by agreement.
Extradition (European Union Conventions) Bill, 2001: Report and Final Stages.
I move amendment No. 1:
In page 4, line 4, to delete "1;" and substitute the following:
"1, the text of which–
(a) in the English language, is set out in Part A of Schedule 1 to this Act, and
(b) in the Irish language, is set out in Part B of that Schedule;”.
These amendments seek to append the text of the 1995 and 1996 conventions in both Gaeilge and English to the Bill. Both the 1995 and 1996 conventions are equally authentic in the Irish and English languages. Therefore, the text of the conventions are being scheduled in Béarla agus Gaeilge. This takes account of the fact that it is not sufficient to have the Irish version translated at a later date because an Irish law does not have the same status.
We are scheduling the Irish and English versions of the convention for convenience and ease of reference only. I emphasise the conventions do not become part of the law of the State by virtue of being added as Schedules. I also point out that the text of both conventions were attached to the explanatory memorandum. I propose to schedule both conventions to the Bill. Deputy Howlin's amendment wanted only the English version but I am sure he will agree to have Gaeilge agus Béarla attached.
As I said on Committee Stage, bheinn an-sásta an leagan Gaeilge a bheith ar fáil más mian, and that is what the Minister of State has decided, that both the Irish and English texts will be appended to the Bill. We have managed to do something substantial in the first amendment, namely to more than double the length of the Bill, which is no mean achievement.
There is an important point in this which I tried to make on Committee Stage, namely, for ease of reading the legislation, not only for practitioners but also for the public, we should make it as easy as possible to understand the law. In referring to conventions, it is not good enough to have them appended to the explanatory memorandum which, by definition and in practice, has a much shorter shelf life than the Bill will have when it becomes an Act and is on the Statute Book.
I am happy the suggestion I made on Committee Stage to have the English language version of the convention appended as a Schedule to the Bill has been accepted. I am also happy the Irish version will also be included in a second and different Schedule to the Bill. Obviously I am happy to support the amendment in my name.
I join with the sentiments expressed by Deputy Howlin. I realise the Department was reluctant to include the conventions in the Bill because it would make it cumbersome, but it is important because it becomes difficult later to lay one's hands on the conventions. I support the amendment and thank the Minister of State for tabling it.
Mar is eol do chách, bímid i gcónaí ag iarraidh obair le chéile i rudaí mar seo and I am sure the spirit of co-operation evident in amendment No. 1 will be seen throughout the Bill as well.
The Minister of State is as gracious in accepting Opposition amendments as she has been since we discussed the first amendment to the Bill.
I move amendment No. 2:
In page 4, line 8, to delete "1996f7>2;" and substitute the following:
"1996f7>2, the text of which–
(a) in the English language, is set out in Part A of Schedule 2 to this Act, and
(b) in the Irish language, is set out in Part B of that Schedule;”.
Amendments Nos. 3 and 4 are cognate and amendment No. 5 is related. Amendments Nos. 3, 4 and 5 may be discussed together by agreement.
I move amendment No. 3:
In page 6, line 14, after "order" to insert "remanding that person on bail or".
We debated this at length on Committee Stage. It is a very important issue. It gives an option to courts to remand on bail a person who consents to be extradited rather than requiring that he or she be incarcerated. That is the import of amendment No. 3. Amendment No. 4 is the same.
Amendment No. 5, which is related although not identical, inserts a new subsection (9) which states, "A person may not be remanded under this section or section 29 in custody for any period greater than 7 days". The first two amendments relate specifically to the issue of those individuals who consent to be extradited not necessarily being incarcerated and to have that option available to the courts. The third amendment ensures that, where there is incarceration, it does not last longer than seven days.
We had an interesting debate on these matters on Committee Stage and I was not convinced by the response of the Minister of State. She said the amendment sought to allow a court the option of remanding a person on bail or committing such a person to prison and that, if the amendment were agreed, there would be serious implications for other sections and subsections of the 1965 Act.
This is an important principle in law. I suspect it is something close to the beliefs of the Minister of State and certainly Members of the Opposition that the notion of incarceration should not be taken lightly and that no individual should be committed to prison unless there is a compelling reason to do so. The Minister argued on Committee Stage that one of the overriding reasons the Bill is drafted as it is and she could not accept the amendment I tabled was that allowing bail would entail the obvious risk, as she put it, of a person absconding, even though that person had agreed to be extradited in the first instance. I did not hear any compelling case for this.
We have always argued, and the Supreme Court has found, that there is a constitutional right to liberty. We are talking about people who are the subject of extradition warrants who prima facie courts have said have a case to answer but are not found guilty of anything. Being found prima facie to have a case to answer does not mean a decision of guilt. We strive in this jurisdiction to keep people from being incarcerated unless they are convicted of a serious matter. I acknowledge that extradition warrants will not be issued for trivial matters. However, when a person faced with an extradition warrant consents to the proposal to extradite him or her, a facility should be available to the courts to make a deter mination that the person can be granted bail. If my proposal is not acceptable to the Minister, she must answer a number of serious questions and convince the House about them. Why is there a compelling need to ensure incarceration in these instances? Why does the Minister believe there is a high probability, a very high risk, to use her words on Committee Stage, of such persons absconding? What evidence is there of that?
Why is the Minister not allowing the courts discretion to make a determination on the face of the evidence and the individual circumstances of the case involved? Does she not trust the judges to determine, in all circumstances, where there is a likelihood or a very high risk of absconding? Can the Minister think of no circumstances where bail would be appropriate? If she can envisage such circumstances, why should we not provide for that possibility in the legislation? That, in essence, is my argument in favour of amendments Nos. 3 and 4.
As regards amendment No. 5, if we are to hold people in custody we must have some finite period for which they can be lawfully detained. I am suggesting that seven days should be the greatest period allowable under section 6. If the Minister does not believe that seven days should be the extent of it, she should provide a compelling reason. I have re-read the Minister's comments on Committee Stage, but I can find no convincing argument why those reasonable improvements to the Bill cannot be acceded to.
I am afraid I will not be able to accept these amendments.
The Minister was doing so well.
Amendments Nos. 3 and 4 seek to amend section 6 by allowing the court the option, when making an order against a person pending his handing up, of remanding that person on bail or committing such a person to prison. Section 6 inserts a new section 29A into the 1965 Act as it relates to convention countries only, that is, EU member states.
I will return to this point in a moment but I wish to clarify a number of issues around it. A person who has been brought under extradition proceedings may be granted bail while the matter is still before the court. However, it has been the case since 1965 that once the court makes an order the person is remanded in custody pending an order for his surrender. It is normally the case that a remand is for seven days in custody at first hearing in the District Court, but section 29 of the 1965 Act provides that a period of 15 days is allowed before surrender, unless the person consents to go sooner. It is designed to allow the person to bring habeas corpus proceedings under Article 40 of the Constitution. Indeed, on making an order, the court informs the person of the provisions of the Constitution and if the person brings such proceedings the court, at its discretion, may grant bail while the application is being heard. These arrangements have worked well since 1965 and I see no reason to change them now.
As I stated on Committee Stage, the amendment would have implications beyond the current Bill because it would have the effect of introducing a two-tier system, one for the convention countries – the EU member states – inserted under section 29A and another for those cases to which the existing provisions of the 1965 Act still apply. I see no merit in having a two-tier system.
We could broaden the improvements to include non-convention countries if we were so minded.
There is nothing to indicate that that would be an improvement to the way the system works in the courts because it is not supported by experience under the existing law.
That is my contention.
Amendment No. 5 provides that a person cannot be remanded in custody for any period greater than seven days. This section deals with a situation where a person consented to be surrendered. Arrangements would be put in place for the surrender of the requested person and strict time limits apply. The 15-day period is set down before surrender. A person can bring an application for habeas corpus and may apply for bail under those proceedings. This provision continues to apply to cases covered by the new section 29A being inserted in the Bill.
As in the previous case, this amendment would not necessarily introduce the two-tier system between EU member states and all others. I am not convinced, therefore, that there is merit in doing this. There does not appear to be evidence of a need to change the existing procedures. What is being proposed is in line with existing practice. I accept the danger of absconding in granting bail in extradition cases, but the same test is applied in other cases. It is for the State to show the probability of a person absconding if bail were to be granted. There is case law on that matter in the People v Gilliat, 1985. The provisions of the Bail Act do not apply to extradition cases so bail cannot be refused simply because there is a likelihood of further offences being committed while on bail. The State would have to show the probability of a person absconding if bail were to be granted, but the safeguards are there so that a person would not be held for longer than 15 days. Should the person decide to opt for the existing proceedings bail can be provided, as well as under the habeas corpus proceedings.
I wonder why anybody bothers to argue in favour of an amendment on Report Stage if none of the arguments is addressed in the reply. The Minister read a prepared response to arguments I did not make. I would like her to address the four questions I posed concerning these matters. The whole idea of having a Legislature is to examine laws and see how to improve them as society's values change. While not all these matters are set in stone, personal liberty is generally treasured. There is a strong view, which may be more libertarian here than in other countries, that people should not be incarcerated unless there are compelling reasons for doing so. That is my view and it is shared strongly by the Irish people. Other jurisdictions, including other EU states, are much more likely to incarcerate even their own citizens than we are.
Thankfully, we have a relatively small prison population. I am taken aback, however, when the Minister for Justice, Equality and Law Reform boasts that he has added 2,000 prison places. I do not see it as a great triumph for our society that we can lock up more of our citizens, particularly when a large proportion of those in jail are there for non-payment of debt. We should look at who is being incarcerated and examine the reasons for their incarceration.
The former Fine Gael spokesperson on justice, Deputy Jim Higgins, produced a remarkable body of work on the issue of restorative justice. He produced a wonderful report for the Committee on Justice, Equality, Defence and Women's Rights, containing proposals for dealing with offenders in a more practical, humane and progressive way.
The Minister should justify the view that people should be locked up. She will not even allow a court the right to release people on bail if that court determines there is no fear or probability of absconding. She will not allow for that probability. The defence she has recited for us today is that an Act of the Oireachtas of 35 years standing has an impact on non-convention countries that cannot be dislodged after 35 years by a more progressive attitude taken here today. That sets parliamentary democracy on its head. If the view is that we have made a decision that had implications for countries in 1965 that cannot be dislodged by a revision of our views in 2001-02 then we can never reform legislation. I have a principled view, which I share with my party and which is probably shared by a majority of people, that we should not incarcerate people without good reason. I am of the view that we lock up too many people here, but that is an aside in relation to these matters.
What we are dealing with here is the issue of extradition and the processes that we, within the European Union in applying the EU conventions, allow for citizens of this State to be extradited to other EU countries. The first principle is that a prima facie case will have to be established in an Irish court. Heretofore it had to be established in the District Court. Under the new regime that will be put in place, following the enactment of this legislation, that initial decision will be made in the High Court. I suggest, once that determination is made, not that somebody is guilty of an offence because that is not what the High Court is asked to do in these procedures, but simply that there is a prima facie case to be answered and that extradition is warranted under the law and under the European conventions. If the courts determine that it is appropriate, the option should be available to that court to allow bail. That is a simple principle. I heard no counter argument to that from the Minister of State. The argument that it would create a divergence of treatment between non-EU and EU countries is irrelevant.
Therefore, let us make progress slowly, if we cannot do it comprehensively. That would be preferable to making no progress at all. That is not an argument. Has the Minister of State abandoned the absconding argument made on Committee Stage because it was not made today. If the Minister of State suggests there is a high rate of people absconding, I ask her to make the case. She quotes case law but it is within the ability of the High Court, under the provisions I suggest should be inserted in the Bill, to make a value judgment. If it was the view of the learned judge that there was a high risk of people absconding, he or she would not allow bail. Without wishing to take up too much time because we are in a truncated debate, the principle of liberty is extremely important.
I had hoped the Minister of State would address valid arguments from this side which have some merit and not come in with a prepared script. It does not harm the extradition process to allow for bail for a category of people who have volunteered to be extradited and who have been determined by the High Court to have a prima facie case to answer and extradition is in process. Why is it necessary to make it mandatory that such individuals be held in custody?
Deputy Howlin is correct. Recent research has shown that Irish people have moved away from the concept of putting people in prison. They want restorative justice. The concept of creating more prison spaces is not what the people want. The Bill, as drafted, ties the hand of the judge. Can the Minister of State envisage any case where bail may be appropriate? If the amendment were accepted it would not fundamentally change the Bill but would give a certain discretion to the judge.
There are there major issues here. The present system has worked well for a number of years. Yes, it would lead to discrepancies between the two types of countries involved—
—and the two types of conventions but there is no evidence of the need to change. More importantly, Deputy Howlin appears to hold the view that if people agree to be extradited they almost walk in off the side of the street and say they agree. Some of these people may be in custody or may have been arrested and when put to them that there are extradition proceedings they then agree to go. That does not necessarily mean they volunteer to head to these countries. The risk of absconding is high.
Would the judge not know that?
Should they decide to avail of the opportunity of the time lag of 15 days to go down the habeas corpus route, the bail proceedings would be available to them. Merely because they agree to a request for extradition does not mean they sit around waiting for it to happen and volunteer to go. The present system has worked well. The safeguard is available for them in that there are limited timescales under which the necessary documentation and orders have to be made. They have that protection. That somebody agrees to it is not an indication that the law should be changed. The same risks apply to the person who agrees and the person who does not agree.
This is my last interjection. The Minister of State has refused to address any of the issues. I asked a simple question, namely, can the Minister of State envisage no circumstance where the granting of bail would be appropriate? She has turned my argument on its head. In her last interjection she said there are categories of people who should not be allowed bail. I have no difficulty accepting that. The import of what I want is simply to allow a provision for bail where bail would be appropriate but the Bill precludes that option from being available to the High Court. That is my difficulty. If the Minister of State and her officials cannot envisage any circumstance in which bail might be appropriate then there might be some logic in her stance. If she concedes there may be an occasion when the option should be available to the court – not compulsorily available – she should accept the amendment.
I move amendment No. 5:
In page 7, between lines 32 and 33, to insert the following:
"(9) A person may not be remanded under this section or section 29 in custody for any period greater than 7 days.'.".
Amendment No. 6 is consequential on amendment No. 7. I suggest amendments Nos. 6 and 7 be discussed together by agreement.
I move amendment No. 6:
In page 7, line 42, to delete "20A.–" and substitute "20A.–(1)".
These amendments amend section 7 of the Bill by inserting new subsections (2) and (3) to section 20E of the 1965 Act and provide that the existing section 20A, as outlined in the Bill, will be referred to as subsection (1). The 1995 convention provides that a person who has consented to his or her surrender may also renounce his or her right to the specialty rule. That is the rule whereby a person expedited for one offence may not be tried for other offences committed before his or her extradition. The 1995 convention provides that consent or renunciation may not be revoked but allows parties to opt out of this requirement by making a declaration to that effect on ratification. It is proposed that Ireland will make such declaration and these amendments allow for renunciation of the waiver of the right to specialty.
Recommittal is necessary in respect of this amendment and amendment No. 7 on which this amendment is consequential as they do not arise out of Committee proceedings. I call the Minister of State to move that the Bill be recommitted in respect of amendments Nos. 6 and 7.
On the matter of the proposal to recommit—
Is the proposal agreed to?
No, I wish to comment on it. I will not obstruct the recommittal. In all areas dealing with justice matters I do not find it acceptable that substantial new issues are introduced on Report Stage. This is not the worst example by any stretch of the imagination. In some Bills dealing with asylum seekers and refugee issues enormous complicated changes of the law were introduced on Report Stage that were not debated on Second or Committee Stages. As a matter of principle, we should try not to do this because it is not open to the Opposition to deal with new issues that do not arise out of Committee Stage proceedings. This is not a great way of dealing with issues because we have a limited opportunity to scrutinise amendments.
These amendments were circulated late last night. I would prefer to have had a chance to consult legal advisers on matters such as these. When I consent to the recommittal of the amendments the Minister of State might give a detailed explanation of the reason these issues arise now, did not arise prior to Committee Stage and what exactly is meant by them. I have not had a chance to ask my legal advisers to examine them. I would prefer to have had that opportunity rather than have to deal with issues introduced the night before a debate, particularly on budget night. I wanted to make that general point.
Something similar to this happened on the Bill dealing with theft. This may be setting a precedent that the Government side might not like. If such a situation arises for whatever reason, perhaps the Government should consider circulating a memorandum on Report Stage, if there is to be such fundamental change.
Is the proposal to recommit amendments Nos. 6 and 7 agreed to?
I move amendment No. 6:
In page 7, line 50, to delete "20A.–" and substitute "20A.–(1)".
I thank the Deputies for their co-operation. To clarify the position, the 1995 convention provides that consent or renunciation may not be revoked, but parties can opt out of the requirement by making a declaration to that effect on ratification. It is proposed that Ireland will make such a declaration.
Amendment No. 7 allows for the renunciation of the waiver of the right to specialty. It inserts a new subsection (2), which provides that a person who has consented to the Minister giving his consent to the waiving of speciality may at any time thereafter—
What is meant by waiving the right to specialty?
The right to specialty is a rule whereby a person who is extradited for one offence may not be tried for other offences committed before his or her extradition. Amendment No. 7 provides that the person who has consented to the Minister giving his or her consent to waiving that right can withdraw that consent.
Subsection (3) provides that the Minister shall not give his consent before he makes an order under section 33, an order directing that a person be surrendered in respect of the offence concerned.
As Deputy Howlin said, these amendments are not major; they are a clarification of the new provisions and address the question of a person's right to revoke his or her consent to waiving the rule of specialty.
For the sake of clarity, I understand Ireland is a party to the convention and accepts its specification that an individual cannot be extradited for one offence and face a separate or different charge after extradition. Ireland is a party to the convention and we are not resigning from that position in any way. Is that right?
I will go over it again. As I understand it, the convention means that, after enactment of this legislation, an individual subject to extradition under the convention and the terms of the Bill cannot face a charge in another jurisdiction other than the one specifically for which he or she is being extradited. The person concerned cannot face a different or separate charge subsequent to extradition. Is that not still the case in that Ireland is not resigning from that position?
Yes, what the Deputy is talking about is the specialty rule.
We are not resigning from that position?
No. We are providing in this legislation for the right of a person to request that that rule be waived. He or she would, therefore, allow himself or herself to be tried for other offences.
Is that provided for in the convention?
The right to waive—
Is the right to waive provided for in the convention?
Yes. That is what we are specifying here. It is in line with the declaration we are about to make. If the wanted person was to decide that he or she would allow himself or herself to be tried for offences other than those set out in the order for extradition, he or she could waive the specialty rule.
Presumably this will all take place before extradition, given that we are talking about an order to be made by the Minister—
—and will not have any impact if the person has already been extradited and the order made. I am trying to envisage the circumstances in which somebody would cede this right. In what circumstances would somebody accept that he or she could be charged with something other than the particular charge considered by an Irish court to merit extradition in the first instance? I ask in order to follow the logic of the reason this section is now needed?
If a person waives his or her right under the specialty rule, at what stage or up to what point can that person withdraw his or her consent?
Both questions are the same. The answer is before the giving of consent by the Minister. It must also take place in the High Court.
Is the consent to which the Minister of State refers consent to extradite?
It is consent to waive, which must be take place in the High Court and be given before the Minister makes the order to extradite. It cannot happen after the person has—
Is it done in conjunction on the one occasion, the extradition order and the consent—
The extradition order will be made only after all this has been agreed. The Minister cannot make the order until consent has been given which must take place in the High Court. It is part of court proceedings.
I move amendment No. 7:
In page 7, line 50, to delete "section 20(1)(a)(i).'.” and substitute the following:
"section 20 (1)(a)(i).
(2) A person who has consented in accordance with subsection (1) to the Minister giving his consent under section 20(1)(a)(i) may at any time thereafter, but before the giving of such consent by the Minister, withdraw his consent, and if the person so withdraws his consent the Minister shall not give his consent under section 20(1)(a)(i).
(3) The Minister shall not give his consent under section 20(1)(a)(i) in accordance with this section on a day that is before the day on which he makes an order under section 33 in respect of the person concerned.'.”.
As amendment No. 17 is cognate to amendment No. 8, they may be discussed together.
I move amendment No. 8:
In page 9, line 42, after "committed" to insert "or alleged to have been committed".
These are purely technical amendments. Amendment No. 17 provides on page 20, line 39, section 26, after the word "committed" for the insertion of the words "alleged to have been committed" while amendment No. 8 provides for a similar provision on page 9, line 42, section 11.
As amendment No. 9 is consequential on amendment No. 12 and amendment No. 10 is an alternative, they may all be discussed together.
I move amendment No. 9:
In page 17 to delete lines 25 and 26.
Deputy Howlin proposes to substitute the existing paragraph (b) of section 20(1). Paragraph (b) provides for the replacement of references to the Circuit Court by the Supreme Court. Instead the Deputy proposes the deletion of section 29(5), that is, that no appeal shall lie against an order of the Supreme – Circuit – Court under this section. Section 47(5) contains a similar provision.
Section 29 of the 1965 Act provides that no appeal shall lie against a decision of the court committing the person to prison there to await the order of the Minister for his extradition. However, section 29(3) provides, inter alia, that the court shall inform the person of the provisions of section 4.2 of Article 40 of the Constitution, which relates to the making of a complaint to the High Court by or on behalf of any person alleging that the person is detained, therefore, habeas corpus proceedings, and that provides a major safeguard for the arrested person.
The issue of a right of appeal to the Supreme Court has been addressed by the Supreme Court. In Holohan and Donoghue, 1984, the Supreme Court held that the jurisdiction of the Supreme Court to hear appeals from the decisions of the High Court derives from Article 34.4 of the Constitution, and any exception or regulation by law of the Supreme Court's jurisdiction must be unambiguously stated.
The matter was considered again in Hanafin and the Minister for the Environment on 1 March 1996.
No family involvement?
Just a happy coincidence. The determination of this issue involved a consideration of the terms of Article 34.4.3º of the Constitution which provides that the Supreme Court shall, with such exceptions and subject to such regulations that may be prescribed by law, have appellate jurisdiction from all decisions of the High Court. The court found that the provisions of Article 34.4.3º of the Constitution clearly envisage and provide for exceptions to the general right of appeal from decisions of the High Court to the Supreme Court and, furthermore, provide for the regulation of such right by an Act of the Oireachtas. It is open to the Legislature, therefore, to exclude certain decisions of the High Court from the appellate jurisdiction of the Supreme Court. However, this can only be restricted by legislation clearly intended to have that effect.
A number of Acts of the Oireachtas accept and regulate the appellate jurisdiction of the Supreme Court. For example, section 132(6) of the Electoral Act, 1992, provides that any party to a petition may appeal on a question of law to the Supreme Court against a decision of the High Court on the petition and, subject to the foregoing, the decision of the High Court shall be final and not open to appeal. Section 57(8) of the Presidential Elections Act, 1993, is in similar vein.
Nevertheless, we must ensure that the avenues of appeal are not unduly restricted. I propose, therefore, that a right of appeal on a point of law from the High Court to the Supreme Court should be expressly provided for. I am satisfied that this, together with the habeas corpus provisions I referred to earlier, will provide all the safeguards necessary. This new avenue of appeal on points of law was not provided for previously. The proposal in the Bill, with my amendments, meet the requirement for clarity that the Supreme Court requires in the cases I have mentioned.
We are at a very important stage in the debate. I compliment the Minister of State for putting a gloss on what she is proposing, which is a considerable delimiting of the rights of appeal available to individuals in these circumstances over the status quo. The Minister quoted the case in which there was a requirement for specificity in relation to the rights of the Supreme Court to specifically examine appeals from the High Court, but she intends to delimit those rights to merely a point of law. It would be helpful if we examined the status quo to see what would prevail should the measures proposed by the Minister be enacted.
As of now, as I understand it, an application for an extradition warrant is made to the District Court. The District Court makes an order and carries out its own analysis of the merits of the case to determine whether an order is appropriate. Assuming the District Court decides that there is merit in the case and an order is made by the District Court, the individual affected has, as of now, three avenues to consider. Under the provisions of the Constitution he can, as the Minister of State rightly said, apply for habeas corpus, which only applies to an evaluation by the High Court of the legality of the detention. He can apply for judicial review, which is an overview by the High Court of the correctness of the mechanisms followed to date or he can, under section 50 of the existing Act, that is the parent Act of 1965, make an application to the High Court to have a determination made on the nature of the offence for which the person is to be extradited, for example, is it political, was there undue delay, or any other legal matter that is covered under section 50 of the 1965 Act.
What is included in that overview is a fairly intensive examination of the facts and, in some areas, a wider overview and examination of the facts than that which took place in the District Court. Following all that, there is an option to appeal to the Supreme Court on a point of law. In the current situation, points of fact could be determined even on this further appeal to the Supreme Court. That is an explanation, in my inadequate, non-legal way, of the safeguards that exist currently, and when one considers the attention extradition laws got in this House when the legislation was being debated, even in my time, which is not that long, but certainly in your time, Sir, there were major tensions in this House on the issue of extradition where Members thought the notion of an Irish citizen being extradited to another jurisdiction was among the most momentous for which this House could legislate. We have a reasonably broad structure to ensure that is not done lightly and that there are avenues of appeal and overview available to us, as I have outlined.
What will the new model be and what will the Minister's proposals and the amendments she has put forward amount to? The court of instigation will be the High Court rather than the District Court. The High Court, as the court of first instance, will make an order and, in the course of making that order, it will consider the section 50 issues, which I indicated would be considered in the High Court under the second tier of examination in the existing legislative framework. After the High Court has made its determination, as the court of first appeal, the habeas corpus route will still be available, but that is limited to an evaluation of the legality of the imprisonment or the detention. There is no judicial review because the High Court, traditionally, does not review itself. The only appeal, in accordance with the amendment the Minister is now proposing, is to the Supreme Court on a point of law, so it is a much neater system. It is a considerable delimiting of the rights of overview and appeal that exist currently. There is no gloss on that. That is a fact.
If the Minister of State believes this is the right course of action, she should explain that to us but she should not pretend, as I discerned in her initial contribution, that the new system has as many safeguards as the old one. That is the argument the Minister attempted to make on Committee Stage when she argued that the appeal process to the Supreme Court from the High Court was analogous to the appeal process from the District Court to the High Court under the existing legislation when patently that is not the case.
This is a very important part of the legislation. I have serious doubts that we are doing the right thing and I want to hear compelling arguments from the Minister that there are sufficient safeguards and that this rationalising of the options open to an individual, subject to an extradition order, are entirely merited.
Deputy Howlin's outline of the current position as regards the District Court and the High Court is correct. The reason the appeals were written in for the High Court was to provide the protection of the High Court to ensure lawful orders are made. Because the High Court is the court of first instance, persons have that protection. They will also continue to have the protection of habeas corpus, which has not been limited in any way.
It would be difficult to limit it given that it is written into the Constitution.
Habeas corpus is and will continue to be an avenue of appeal.
Only to determine the legitimacy of the detention.
This is a useful point at which to examine exactly what is involved in extradition cases. They are not criminal cases or investigations because consideration is given only to issues of procedure, fact and compliance with the law. Appeals on a point of law will address issues of procedure and fact. The court will not make a judgment on the merits of the case or the guilt of the person. It must satisfy itself that procedures have been complied with and the relevant documentation has been provided by another State. There is no question of undertaking a huge investigation into the facts of the case.
The Bill expressly provides for a right of appeal to the Supreme Court on a point of law. As a right which did not exist heretofore, it will be an added protection. It is most likely contrary to the judicial process to appeal to the Supreme Court on a point of fact. Whereas in the past, one moved from the District Court to the High Court to seek its protection, one now starts off with the protection of the High Court. Once the orders have been made, one can still use the habeas corpus provision and, in addition, one has the right to appeal to the Supreme Court on a point of law.
Unfortunately, I only have two minutes. The bottom line is that amendment No. 12 states: "(5) No appeal shall lie to the Supreme Court from an order of the High Court under this section, except on a point of law." The Minister of State talked about procedure under the 1965 Act. Will she give a reassurance that the Supreme Court will be able to examine a point of law in its broadest sense? Does "a point of law" mean that all the issues covered in section 50 of the 1965 Act, such as "inordinate delay" and the political nature of the offence, are open to examination by the Supreme Court in an appeal? These are not what I understand to be points of law. If this is the case, all the relevant issues will be determined in a single hearing.
The habeas corpus procedures, as I have acknowledged, are constitutional and pertain only to the legality of detention. No matter what gloss one puts on this, it substantially restricts the right of individuals to avail of existing appeal and overview procedures. The logic of the Minister of State's statement is that everything will now take place in a one-stop-shop in the High Court and that because the High Court will get it right in one go, a second look at the matter is not needed. The proposals severely restrict the right of appeal in our system of law, which ensures that all court decisions are subject to review by another court. I am not a lawyer, but I would like much stronger reassurance from the Minister of State.
Issues such as political offences, discrimination and delay, to which Deputy Howlin refers, can be dealt with in the High Court by section 50. Its protections remain.
Can they be reviewed on appeal?
The only matter that can be reviewed in the Supreme Court is a point of law—
That is the point I am making.
—which would be at the discretion of the court.
Then there is a huge limitation.
We are expressly allowing this appeal which has not existed heretofore.
On very narrow grounds.
In ordinary cases, the Supreme Court would not review or appeal on the basis of fact.
It can look at fact under existing law. The Minister of State's advisers will tell her that.
We must treat the amendment according to Report Stage rules.
We are discussing extradition and issues of procedure, fact and compliance with the law.
Section 50 issues under the 1965 Act will not be re-examined in the Supreme Court. On the one hand—
I remind the Deputy we are on Report Stage, not Committee Stage, and the Minister of State is replying as part of the debate on these amendments.
My point is that when one moves from the District Court to the High Court, there are a number of safeguards. Now that we plan to start ab initio at the High Court, which will be the court of first instance, the safeguards remain, including the protection of the High Court as it stands, section 50, habeas corpus and a deliberately inserted appeal to the Supreme Court on a point of law. We are not, therefore, diminishing people's rights.
Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cullen, Martin.Daly, Brendan.de Valera, Síle.Dennehy, John.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Gildea, Thomas.Hanafin, Mary.Harney, Mary.Haughey, Seán.Keaveney, Cecilia.
Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael P.Kitt, Tom.Lawlor, Liam.Lenihan, Conor.McGennis, Marian.McGuinness, John J.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moynihan, Donal.Moynihan, Michael.O'Dea, Willie.O'Hanlon, Rory.O'Keeffe, Ned.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wade, Eddie.Wallace, Dan.Wallace, Mary.Woods, Michael.
Barrett, Seán.Bell, Michael.Belton, Louis J.Boylan, Andrew.
Bradford, Paul.Broughan, Thomas P.Browne, John (Carlow-Kilkenny). Bruton, Richard.
Burke, Ulick.Carey, Donal.Clune, Deirdre.Cosgrave, Michael.Crawford, Seymour.Creed, Michael.Currie, Austin.D'Arcy, Michael.Deasy, Austin.Deenihan, Jimmy.Dukes, Alan.Farrelly, John.Flanagan, Charles.Gilmore, Éamon.Gregory, Tony.Hayes, Brian.Healy, Seamus.Higgins, Michael.Hogan, Philip.Howlin, Brendan.
McGahon, Brendan.McGinley, Dinny.McManus, Liz.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.O'Shea, Brian.O'Sullivan, Jan.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Ring, Michael.Ryan, Seán.Shortall, Róisín.Spring, Dick.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary.
I move amendment No. 11:
In page 18, to delete lines 4 to 11.
This amendment addresses the same issues as the previous one, namely, the appeals processes available to people who are subject to extradition. At present, as I explained earlier, the District Court makes an extradition order and the person concerned may then apply to the High Court or to the Minister for a release under section 50 of the Extradition Act, 1965. If he does so within 15 days of the order he cannot be bundled out of the country and must wait for the result. The same applies to the procedure of habeas corpus. The Minister, in this Bill, wishes to restrict that procedure to habeas corpus applications only. This is because she must allow for the mechanism of habeas corpus as it is provided for in the Constitution.
The reason, as I said on Committee Stage, we have an Extradition Act, 1965, is that in 1965 the Supreme Court criticised the swift bundling of people over the Border without a chance to challenge their removal legally. In Part 4, section 20, the Minister wants to restrict the current right of appeal under section 50, currently available as an appeal to the High Court, and to have the right of appeal only under habeas corpus, which is an overview in the High Court of the legality or the legitimacy of the detention. I do not want to trample over all the ground I covered in the previous set of amendments because the issues are related. It simply means that the new regime being introduced by the Minister will severely delimit the right of individuals to have a decision considered a second time.
Up to now the initial decision was made on the basis of the facts and the law by the District Court and the option of appeal was available either under section 50 to the High Court, where all the issues now to be considered in the first instance would be considered, or a judicial review, or habeas corpus. When all that was exhausted there was the possibility of an appeal, even on points of fact, to the Supreme Court. As has been pointed out, the Supreme Court has a particular obligation and right to consider constitutional matters. All that is to be truncated. Now there will be simply a High Court decision and an appeal to the Supreme Court on a point of law, a narrow point of law, as the Minister has finally accepted. As the Minister cannot smash down the option of a habeas corpus application, which is in the Constitution, it will be allowed for under this section where an application is made within 15 days of the order. I propose simply to delete that section.
Deputy Howlin is under the misapprehension that we are trying to remove the protection of section 50, but that is not the case. The full protection of section 50 is still there.
It will all be done in the first instance.
What is being removed is the cross-reference to it because the cases no longer start at the District Court. These matters are now dealt with, in the first instance, in the High Court. It is important to look at what section 50 does. It sets out the issues the High Court may consider in any case referred to it from the District Court, including whether the offence to which the warrant relates is a political offence for extradition purposes or an offence under military law, whether there are substantial grounds for believing that the warrant was issued for the purpose of persecuting a person on account of his race, religion, nationality or political opinion or whether, due to a lapse of time, it would be unjust to deliver the person up. The High Court will release the person if it considers that any of these apply.
With regard to alleged political offences and claims of likely persecution, because section 50 of the 1965 Act gives the High Court jurisdiction over such matters it appeared that they would not be investigated by the District Court. However, the reference in section 48 to section 50 was applicable only because cases began in the District Court and section 48 allowed an application to be made in the High Court to have these matters considered. No changes are being made to the existing provisions of section 50. Those protections are still there. The cross-reference initially referred to cases coming from the District Court to be reviewed by the High Court – because cases now start in the High Court, there is no further need for it. The High Court will now give consideration to all these matters in the first instance.
I have said all I can say.
Is the Deputy pressing the amendment?
I move amendment No. 12:
In page 18, between lines 11 and 12, to insert the following:
"(g) the substitution in section 29 of the following subsection for subsection (5):
‘(5) No appeal shall lie to the Supreme Court from an order of the High Court under this section, except on a point of law.',
(h) the substitution in section 47 of the following subsection for subsection (5):
‘(5) No appeal shall lie to the Supreme Court from an order of the High Court under this section, except on a point of law.'.".
I move amendment No. 13:
In page 18, to delete lines 21 to 31.
This amendment deals with section 21 of the Bill, the laying of orders before the Houses of the Oireachtas. I am at a slight disadvantage in that I am still working off my initiated text which has different references. It basically deals with procedures. Under the proposal in section 2 every order made by the Government under this Bill after the commencement of the Extradition (European Union Conventions) Act, 2001, shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the order is passed by either such House within the next 21 days on which that House sits after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. That is the section the Minister intends including.
There are two ways in which resolutions of this House have effect. One is to require the approval of the Houses of the Oireachtas by way of confirmatory motion, which is the status quo in this case and it is the more involved way for the House. The second mechanism is for an annulling order to be made and that is the procedure suggested here. I suggest that the former mechanism is a more democratic one for an issue of such importance.
Section 21 seeks to address a major difficulty with the operation of section 4 of the Extradition Act, 1965. This arises in connection with multilateral agreements which contain extradition provisions. It is a difficulty that was not foreseen when the current provision was inserted in 1987. What is now being proposed in section 21 of this Bill is to return to the pre-1987 position.
The issue has two aspects, the first relates to our accession to international agreements and the second and more difficult issue arises as new states accede to agreements and thereby impose obligations on Ireland vis-à-vis those new parties to the agreement. When Ireland ratifies a multilateral convention which contains obligations relating to extradition, it must ensure that it can comply with these obligations before the convention enters into force for Ireland. Under multilateral conventions, the period between ratification and bringing the extradition provisions into effect tends to be short, typically 30 days.
Under section 4 of the Extradition Act, to allow for extradition between Ireland and another state which is party to the agreement, it is necessary for an extradition order to be approved by both Houses of the Oireachtas. This must be done after the State becomes a party to the agreement, but before the agreement enters into force for Ireland. This can generally be managed through the normal scheduling of parliamentary business.
Subsequent orders, necessary to take into account the State's obligations to other states that become party to the agreement after its entry into force for this State, must be made between the date such a state becomes party to the agreement and the date the agreement enters into force for it. Those subsequent orders bring into force the extradition provisions of the agreement as they apply between Ireland and the new parties that have most recently acceded to the agreement. Failure to bring those provisions into force in Irish law on time means Ireland is not in a position to meet its obligations to the new parties to the agreement under the extradition provisions of the agreement. As I mentioned earlier, many agreements allow only 30 days between accession by a party to an agreement and the bringing into force of the extradition provisions.
It is in that context that the current requirement poses a problem. A new party may accede to an agreement on 1 August, for example, and the extradition aspects would be due to be operational by 1 September. Under current procedure and practice, Ireland cannot meet those deadlines. Even outside the recess periods, it may be difficult to find parliamentary time at short notice to pass motions within the timeframe required. What is more relevant is that the Houses may not be sitting. I have checked and understand that it would be outside the scope of parliamentary committees to deal with it. There are a number of different agreements that can arise. The important thing is to state that the timeframe by which we pass the motions and the number of motions is dictated by other parties – it is by the accession of other countries or parties to the agreements. The timeframe is outside our control and deadlines are placed on us by other people.
It is equally important to recognise that any agreement which would have been entered into would have been discussed here in the Oireachtas and the Oireachtas would have had the chance to examine the agreements because legislation would have to have been introduced to give effect to them. The agreements would have been discussed here and the making of the extradition orders would be subsequent to that and only within a timeframe when another country would enter into the convention. It would still be the case that a motion would appear on the Order Paper of the House and that could be annulled within the 21 days. I know Deputy Howlin thinks this is a negative rather than a positive motion but he should bear in mind that it is not something new to the House. We would have already discussed the legislation leading to the ratification of the conventions.
I accept some of the points made by the Minister but there is a straightforward principle involved here and that is the primacy of the Houses of the Oireachtas to ensure that orders made have the consent of the House. The main reason given by the Minister of State is administrative convenience. I know from my time working on the justice committee that it would be administratively convenient if this House did not exist as far as the Department of Justice, Equality and Law Reform is concerned. We could hand over our seals and they could just stamp away regardless of anything else. With respect, that is how the Department treats us with information on important issues which often arrives late. Even the Executive sometimes gets short shrift from the Department of Justice, Equality and Law Reform.
If the Houses of the Oireachtas are to carry out their duty properly, it can often be administratively cumbersome and inconvenient. We might have to look to our own sitting arrangements to deal with these matters. Perhaps our breaks are overly long and perhaps we need different plenary arrangements for sitting. By and large it is not a good idea, because it is inconvenient or discommoding sometimes to require parliamentary approval for orders that are important, that we should simply remove the requirement so that something goes on the schedule of the orders of the House and is probably never seen by the majority. In principle it is not a good thing and I want to press my amendment.
It would be unfair to say that it was for administrative convenience given that the Oireachtas will have already discussed and scrutinised all aspects of the agreement which will then give rise to extradition procedures. What is important is that having signed these agreements we would then be in a position to meet our obligations under them. Often the timeframe in meeting those obligations, through no fault of our own as it is set for us by outside parties, is very short. It is to ensure that we can meet our obligations where there are extradition proceedings arising out of conventions and agreements that we have already discussed in full in this House.
Amendments Nos. 14 to 16, inclusive, are related and will be taken together by agreement.
I move amendment No. 14:
In page 18, between lines 43 and 44, to insert the following:
"(2) If a person whose extradition is sought serves a notice to cross-examine the person whose affidavit or statement is furnished as provided for in subsection (1) herein, on any matter referred to in such affidavit or statement, such person shall give oral evidence on the matters contained in the affidavit or statement and be subject to cross-examination.".
This amendment deals with section 22(2) of the Bill which currently outlines that the High Court may, if it considers that the interests of justice so require, direct that oral evidence of the matters described in the affidavit or statement concerned be given. This was discussed in committee at length and the genesis of the point I am making for the inclusion of this amendment is that it gives the individual facing an extradition order an opportunity to cross-examine a witness or the evidence put forward in the affidavit. In the interest of natural justice the Minister should accept it. It is very straightforward. The amendment would add to the Bill. I cannot see how it would take from it or what difficulties it would cause. On Committee Stage the Minister promised to reflect on the matter for Report Stage. I know there was some difficulty but the Minister agreed to reflect and I hope that reflection will have a positive outcome.
We had some debate on this on Committee Stage on foot of amendments tabled by me and others. There is a straightforward principle involved – it has been highlighted to me by my involvement in the committees and sub-committees of the House – that is, the right of individuals to cross-examine deponents of affidavits or those who make statements. I have great concern with evidence by affidavit or certificate that cannot be subject to cross-examination. By definition, one cannot cross-examine a piece of paper. In normal proceedings an affidavit cannot be used for a hearing without leave of a court if a party gives notice of a desire to cross-examine the deponent. I understand there is a constitutional right to cross-examine an opponent, a right under the European Convention on Human Rights. This section makes any cross-examination utterly dependent on the court's view. Amendment No. 15 in my name would simply insert the normal and usual rule which is essential to protect this right.
I argued the case as best I could on Committee Stage and I thought the Minister of State was moving towards acceptance of my view. I am concerned that we might introduce a frailty to the Bill by running over or close to the boundary of permissibility under the Constitution or the convention. I hope I will not need to argue the case for much longer because the Minister of State will have reflected and accept the amendment. It grieves me a little that there is no amendment in the Minister's name on the matter.
At the time I agreed to reflect on this matter I indicated that I was willing to facilitate other amendments, which I did on amendment No. 1, but was unsure about these ones. During the week I reflected, took advice from the Attorney General and examined the Constitution and procedures, and regret I cannot accept these amendments.
The background to the inclusion of the current provision is that the Office of the Attorney General took the view that it would be appropriate to provide in legislation for the introduction of evidence in the relevant court by way of affidavit. There is no provision in legislation for affidavits of facts to be used and it only contemplates admissibility of the warrant, verifying affidavit and certificate. In some cases it has been found necessary to introduce evidence by way of affidavit, for example, to establish the necessary correspondence of offences. The Bill, therefore, provides for affidavit evidence in extradition proceedings unless the court sees good reason to the contrary. In effect, the Bill will ensure the existing practice regarding affidavits may be maintained.
The essential point is that the section does not require the giving of evidence by affidavit, but allows it. The provision in the Bill gives the High Court discretion, if it considers that the interests of justice so require, to allow for oral evidence of the matters described in the affidavit. This is not an unfettered discretion as the courts cannot act in an unreasonable or capricious manner. If a person whose surrender is being sought asks to be permitted to cross-examine a witness, since such a right appears to exist under Article 40.3 of the Constitution, the High Court has no option but to give a direction under subsection (2). The court has an inherent duty to ensure the person's constitutional rights are protected and the proposed subsection (7)(b)(ii) being inserted in the Bill acknowledges this.
I am of the view that the current wording of the Bill provides adequate safeguards for all parties to extradition proceedings and that the change supports the principle of improving the efficiency of the court process. I will not, therefore, support the amendments.
Deputy Howlin referred to the constitutional right to cross-examine. Article 38.1 gives the right to cross-examine in criminal cases, although extradition cases do not fall into that category. In other proceedings, such as extradition, Article 40.3 can be relied on to give a right to cross-examine because it protects a person's good name. It is accepted, therefore, that liberty would probably be a right protected by it. Such a right need not be provided for in the Bill because it is already provided for in the Constitution.
We are both saying that it should be left to the High Court. The Government states that this ought to be in the interests of justice and while Deputy Howlin is approaching the matter from another angle, he is also saying that there cannot be cross-examination where notice is served without leave of the High Court. We both say that the High Court must give leave and acknowledge that the interests of justice are considered by it. The Government states that the affidavit can be relied on while the Deputy says that it cannot. We are satisfied that constitutional provisions ensure the right is provided for, but we are not saying that the State shall rely on or require evidence by affidavit.
In a nutshell, the Minister of State is saying that the amendments we seek are already catered for under Article 40.3 of the Constitution, but does she agree that it would be helpful if this right was made explicit in the Bill? Someone not familiar with other aspects of law, perhaps acting on his or her own behalf, would be assisted if it was made explicit in the Bill. How would it take from the Bill to include it?
The Minister of State now accepts that cross-examination is a constitutional right on which she is not at odds with me. On Committee Stage she relied on rules of court to argue for the existence of such a right. I had hoped to receive a copy of those rules so as to understand them. I agree with Deputy Timmins that it is more cor rect, as the Minister of State accepts that the person affected by affidavit or certificate evidence should be able to cross-examine the deponent, to make this explicit in the Bill. It would be no great burden and I do not understand the reason this is not accepted.
We all accept that cross-examination is not permitted just for its own sake. It must be relevant to the issue before the court and in the interests of justice. The effect of this section will be to require oral evidence and cross-examination where required in the interests of justice. If we were to accept the amendment, we would oblige the High Court to hear oral evidence even where it was not satisfied that this was necessary in the interests of justice. This is not desirable or in keeping with the procedures governing courts. It would be wrong to give an automatic right to require the attendance of a deponent when it may not be clear if the interests of justice would be served.
On Committee Stage I referred to the rules of superior courts, of which Order 40, Rule 1, Statutory Instrument No. 15, 1986, states, "Upon any petition, motion or other application evidence may be given by affidavit but the court may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit." I rely on the fact the Articles 38.1 and 40.3 of the Constitution protect the right to cross-examination. To provide for it in the Bill would be to provide for it as of right, even where this may not be required in the interests of justice.
I move amendment No. 15:
In page 18, between lines 43 and 44, to insert the following:
"(2) An affidavit or statement sworn for the purposes of proceedings referred to in subsection (1) may not be relied upon by a party to those proceedings without leave of the High Court if another party to those proceedings has given notice of an intention to cross-examine the deponent and the first-mentioned party has failed to produce the deponent for cross-examination.".
I move amendment No. 17:
In page 20, line 39, after "committed" to insert "alleged to have been committed".
I move amendment No. 18:
In page 21, after line 10, to insert the following:
drawn up on the basis of Article K.3 of the Treaty on European Union, on simplified extradition procedure between the Member States of the European UnionTHE HIGH CONTRACTING PARTIES to this Convention, Member States of the European Union,
REFERRING to the Council Act of 9 March 1995,
DESIRING to improve judicial cooperation between the Member States in criminal matters, with regard both to proceedings and the execution of sentences,
RECOGNIZING the importance of extradition in judicial cooperation in order to achieve these objectives,
CONVINCED of the need to simplify extradition procedures to the extent that this is compatible with their fundamental legal principles, including the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms,
NOTING that, in a large number of extradition proceedings, the person claimed consents to his surrender,
NOTING that it is desirable to reduce to a minimum, in such cases, the time necessary for the extradition and any period of detention for extradition purposes,
CONSIDERING that, as a result, application of the European Convention on Extradition of 13 December 1957 should be made easier by simplifying and improving extradition procedures,
CONSIDERING that the provisions of the European Convention on Extradition remain applicable for all matters not covered by this Convention,
HAVE AGREED ON THE FOLLOWING PROVISIONS:
1. The aim of this Convention is to facilitate the application, between the Member States of the European Union, of the European Convention on Extradition, by supplementing its provisions.
2. Paragraph 1 shall not affect the application of more favourable provisions in the bilateral and multilateral agreements in force between Member States.
Obligation to surrender persons
Member States undertake to surrender to each other under simplified procedures as provided for by this Convention persons sought for the purpose of extradition, subject to consent of such persons and the agreement of the requested State given in accordance with this Convention.
Conditions for surrender
1. Pursuant to Article 2, any person who is the subject of a request for provisional arrest in accordance with Article 16 of the European Convention on Extradition shall be surrendered in accordance with Articles 4 to 11 and Article 12 (1) of the present Convention.
2. The surrender referred to in paragraph 1 shall not be subject to submission of a request for extradition or the documents required by Article 12 of the European Convention on Extradition.
Information to be provided
1. The following information from the requesting State shall be regarded as adequate for the information of the arrested person for the purpose of applying Articles 6 and 7 and for the competent authority referred to in Article 5 (2):
(a)the identity of the person sought;
(b)the authority requesting the arrest;
(c)the existence of an arrest warrant or other document having the same legal effect or of an enforceable judgment;
(d)the nature and legal description of the offence;
(e)a description of the circumstances in which the offence was committed, including the time, place and degree of involvement of the person sought;
(f)in so far as possible, the consequences of the offence.
2. Notwithstanding paragraph 1, further information may be requested if the information provided for in the said paragraph is insufficient to allow the competent authority of the requested State to give agreement to the surrender.
Consent and agreement
1. The consent of the arrested person shall be given in accordance with Articles 6 and 7.
2. The competent authority of the requested State shall give its agreement in accordance with its national procedures.
Information to be given to the person
Where a person wanted for the purpose of extradition is arrested on the territory of another Member State, the competent authority shall inform that person, in accordance with its national law, of the request relating to him and of the possibility of his consent to his surrender to the requesting State under the simplified procedure.
1. The consent of the arrested person and, if appropriate, his express renunciation of entitlement to the speciality rule, shall be given before a competent judicial authority of the requested State in accordance with the national law of that State.
2. Each Member State shall adopt the measures necessary to ensure that consent and, where appropriate, renunciation, as referred to in paragraph 1, are established in such a way as to show that the person concerned has expressed them voluntarily and in full awareness of the consequences. To that end, the arrested person shall have the right to legal counsel.
3. Consent and, where appropriate, renunciation, as referred to in paragraph 1, shall be recorded; the recording procedure shall be in accordance with the national law of the requested State.
4. Consent and, where appropriate, renunciation, as referred to in paragraph 1, may not be revoked. Upon deposit of their instruments of ratification, acceptance, approval or accession, Member States may indicate, in a declaration, that consent and, where appropriate, renunciation may be revoked, in accordance with the rules applicable under national law. In this case, the period between the notification of consent and that of its revocation shall not be taken into consideration in establishing the periods provided for in Article 16 (4) of the European Convention on Extradition.
Notification of consent
1. The requested State shall immediately notify the requesting State of the consent of the person. So that the requesting State may submit, where applicable, a request for extradition, the requested State shall notify it, no later than 10 days after provisional arrest, whether or not the person has given his consent.
2. Notification referred to in paragraph 1 shall be made directly between the competent authorities.
Renunciation of entitlement to the speciality rule
Each Member State may declare, upon deposit of its instrument of ratification, acceptance, approval or accession, or at any other time, that the rules laid down in Article 14 of the European Convention on Extradition do not apply where the person, in accordance with Article 7 of the present Convention:
(a)consents to extradition; or
(b)consents to extradition and expressly renounces his entitlement to the speciality rule.
Notification of the extradition decision
1. Notwithstanding the rules laid down in Article 18 (1) of the European Convention on Extradition, the extradition decision taken pursuant to the simplified procedure and the information concerning the simplified extradition procedure shall be notified directly between the competent authority of the requested State and the authority of the requesting State which has requested provisional arrest.
2. The decision referred to in paragraph 1 shall be notified at the latest within 20 days of the date on which the person consented.
Deadline for surrender
1. Surrender shall take place within 20 days of the date on which the extradition decision was notified under the conditions laid down in Article 10 (2).
2. After the deadline laid down in paragraph 1, if the person is being held, he shall be released on the territory of the requested State.
3. Should surrender of the person within the deadline laid down in paragraph 1 be prevented by circumstances beyond its control, the authority concerned referred to in Article 10 (1) shall so inform the other authority. The two authorities shall agree on a new surrender date. In that event, surrender will take place within 20 days of the new date thus agreed. If the person in question is still being held after expiry of this period, he shall be released.
4. Paragraphs 1, 2 and 3 of this Article shall not apply in cases where the requested State wishes to make use of Article 19 of the European Convention on Extradition.
Consent given after expiry of the deadline laid down in Article 8 or in other circumstances
1. Where an arrested person has given his consent after expiry of the deadline of 10 days laid down in Article 8, the requested State:
–shall implement the simplified procedure as provided for in this Convention if a request for extradition within the meaning of Article 12 of the European Convention on Extradition has not yet been received by it,
–may use this simplified procedure if a request for extradition within the meaning of Article 12 of the European Convention on Extradition has reached it in the meantime.
2. Where no request for provisional arrest has been made, and where consent has been given after receipt of a request for extradition, the requested State may avail itself of the simplified procedure as provided for in this Convention.
3. Upon deposit of its instrument of ratification, acceptance, approval or accession, each Member State shall state whether it intends to apply paragraph 1, second indent, and paragraph 2 and, if so, under what conditions.
Re-extradition to another Member State
Where the speciality rule has not been applied to the person extradited, in accordance with the declaration of the Member State provided for in Article 9 of this Convention, Article 15 of the European Convention on Extradition shall not apply to the re-extradition of this person to another Member State, unless the aforementioned declaration provides otherwise.
In the event of transit under the conditions laid down in Article 21 of the European Convention on Extradition, where extradition under the simplified procedure is concerned, the following provisions shall apply:
(a)in an emergency, an application containing the information required in Article 4 may be made to the State of transit by any method which leaves a written record. The State of transit may make its decision known using the same method;
(b)the information referred to in Article 4 must be sufficient to enable the competent authority of the State of transit to ascertain whether extradition is under the simplified extradition procedure and to take the constraint measures needed for execution of the transit vis-à-vis the extradited person.
Determining the competent authorities
Upon deposit of its instrument of ratification, acceptance, approval or accession, each Member State shall indicate in a statement which authorities are competent within the meaning of Articles 4 to 8, 10 and 14.
Entry into force
1. This Convention shall be subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the General Secretariat of the Council of the European Union. The Secretary-General of the Council shall notify all Member States of such deposit.
2. This Convention shall enter into force 90 days after the date of deposit of the instrument of ratification, acceptance or approval by the last Member State to carry out this formality.
3. Until this Convention enters into force, any Member State may, when depositing its instrument of ratification, acceptance or approval, or at any other date, declare that the Convention shall apply to it in its relations with Member States that have made the same declaration 90 days after the date of deposit of its declaration.
4. Any declaration made pursuant to Article 9 shall take effect 30 days after deposit thereof, but no earlier than the date of the entry into force of this Convention or of the application thereof of the Member State concerned.
5. This Convention shall apply only to requests submitted after the date on which it enters into force or is applied between the requested State and the requesting State.
1. This Convention shall be open to accession by any State that becomes a member of the European Union.
2. The text of this Convention in the language of the acceding State, drawn up by the General Secretariat of the Council of the European Union and approved by all the Member States, shall be equally authentic with the other authentic texts. The Secretary-General shall transmit a certified true copy of the text to each Member State.
3. The instruments of accession shall be deposited with the General Secretariat of the Council of the European Union.
4. This Convention shall enter into force with respect to any State that accedes to it 90 days after the deposit of its instrument of accession or the date of entry into force of the Convention if it has not already entered into force at the time of expiry of the said period of 90 days.
5. Where this Convention is not yet in force at the time of the deposit of their instrument of accession, Article 16 (3) shall apply to acceding Member States.
arna tharraingt suas ar bhonn Airteagal K.3 den Chonradh ar an Aontas Eorpach maidir le nós imeachta simplithe eiseachadta idir Bhallstáit an Aontais Eorpaigh
TÁ NA hARDPHÁIRTITHE CONARTHACHA sa Choinbhinsiún seo, Ballstáit an Aontais Eorpaigh,
AG TAGAIRT DÓIBH do Ghníomh ón gComhairle an 9 Márta 1995,
ÓS É A MIANGAS an comhar breithiúnach in ábhair choiriúla idir na Ballstáit a fheabhsú a mhéad a bhaineann le himeachtaí agus le forghníomhú pianbhreitheanna,
Á AITHINT DÓIBH a thábhachtaí atá an t-eiseachadadh i réimse an chomhair bhreithiúnaigh d'fhonn na cuspóirí sin a ghnóthú,
AR BHEITH DEIMHIN DÓIBH gur gá na nósanna imeachta eiseachadta a shimpliú, a mhéad atá sin ag luí lena mbunphrionsabail dlí, lena n-áirítear prionsabail an Choinbhinsiúin Eorpaigh chun Cearta an Duine agus Saoirsí Bunúsacha a Chosaint,
AG TABHAIRT DÁ nAIRE gurb amhlaidh, i mórchuid nósanna imeachta eiseachadta, go dtoilíonn an duine a mbaineann an iarraidh leis lena thabhairt suas,
AG TABHAIRT DÁ nAIRE gurb inmhianta an t-am is gá don eiseachadadh agus gach tréimhse choinneála chun críocha eiseachadta a laghdú a mhéad is féidir sna cásanna sin,
DE BHRÍ nach foláir dá thoradh sin cur i bhfeidhm Choinbhinsiún Eorpach an 13 Nollaig 1957 um Eiseachadadh a éascú trí na nósanna imeachta Eiseachadta a shimpliú agus a fheabhsú,
DE BHRÍ go leanann forálacha an Choinbhinsiúin Eorpaigh um Eiseachadadh de bheith infheidhme ar gach ábhar nach ndéileáiltear leis sa Choinbhinsiún seo,
TAR ÉIS COMHAONTÚ MAR A LEANAS:
1. Is é aidhm an Choinbhinsiúin seo cur i bhfeidhm an Choinbhinsiúin Eorpaigh um Eiseachadadh idir Bhallstáit an Aontais Eor paigh a éascú trína chuid forálacha a fhorlíonadh.
2. Ní dhéanfaidh mír 1 difear d'fhorálacha is fabhraí sna comhaontuithe déthaobhacha nó iltaobhacha atá i bhfeidhm idir Bhallstáit a chur i bhfeidhm.
Oibleagáid duine a thabhairt suas
Gabhann na Ballstáit orthu féin daoine a bhfuil lorg orthu chun críocha eiseachadta a thabhairt suas dá chéile faoi na nósanna imeachta simplithe dá bhforáiltear sa Choinbhinsiún seo, faoi réir thoiliú na ndaoine sin agus chomhaontú an Stáit iarrtha arna dtabhairt i gcomhréir leis an gCoinbhinsiún seo.
Coinníollacha don tabhairt suas
1. De bhun Airteagal 2, déanfar aon duine a bhfuil iarraidh ar ghabháil shealadach déanta ina leith i gcomhréir le hAirteagal 16 den Choinbhinsiún Eorpach um Eiseachadadh a thabhairt suas i gcomhréir le hAirteagail 4 go 11 agus 12(1) den Choinbhinsiún seo.
2. Ní bheidh an tabhairt suas dá dtagraítear i mír 1 faoi réir iarraidh ar eiseachadadh ná na cáipéisí is gá de bhun Airteagal 12 den Choinbhinsiún Eorpach um Eiseachadadh a thíolacadh.
Faisnéis atá le cur ar fáil
1. D'fhonn an duine atá gafa a chur ar an eolas chun Airteagail 6 agus 7 a chur i bhfeidhm agus an t-údarás inniúil dá dtagraítear in Airteagal 5(2) a chur ar an eolas, measfar gur leor an fhaisnéis seo a leanas ón Stát iarrthach:
(a)aithne an duine atáthar a lorg;
(b)an t-údarás atá ag iarraidh na gabhála;
(c)barántas gabhála nó cáipéis eile a bhfuil an éifeacht dhlíthiúil chéanna aici nó breithiúnas infhorghníomhaithe a bheith ar marthain;
(d)cineál agus tuairisc dhlíthiúil an chiona;
(e)tuairisc ar na himthosca ina ndearnadh an cion, lena n-áirítear an t-am, an áit agus a mhéad a bhí an duine atáthar a lorg páirteach ann;
(f)a mhéad is féidir, iarmhairtí an chiona.
2. D'ainneoin mhír 1, féadfar faisnéis bhreise a iarraidh más amhlaidh nach leor an fhaisnéis dá bhforáiltear sa mhír sin chun gur féidir le húdarás inniúil an Stáit iarrtha comhaontú don tabhairt suas.
Toiliú agus comhaontú
1. Tabharfar toiliú an duine ghafa i gcomhréir le hAirteagail 6 agus 7.
2. Tabharfaidh údarás inniúil an Stáit iarrtha a chomhaontú i gcomhréir lena nósanna imeachta náisiúnta.
Faisnéis atá le tabhairt don duine
Nuair a ghabhtar ar chríoch Bhallstáit eile duine atáthar a lorg chun críocha eiseachadta, cuirfidh an t-údarás inniúil an duine sin ar an eolas i gcomhréir lena dhlí náisiúnta faoin iarraidh a bhaineann leis agus faoin gcaoi atá aige toiliú go dtabharfar suas é don Stát iarrthach faoin nós imeachta simplithe.
An toiliú a shuíomh
1. Tabharfar toiliú an duine ghafa agus, más iomchuí, tréigean sainráite a theidil aige chun riail na speisialtachta os comhair údará is bhreithiúnaigh inniúil de chuid an Stáit iarrtha i gcomhréir le dlí náisiúnta an Stáit sin.
2. Glacfaidh gach Ballstát na bearta is gá chun a áirithiú go bhfuil an toiliú agus, más iomchuí, an tréigean dá dtagraítear i mír 1 suite ar dhóigh a léiríonn gur nocht an duine dá dheoin féin iad agus é lánfheasach ar a n-iarmhairtí. Chuige sin, beidh de cheart ag an duine gafa comhairle dlíodóra a fháil.
3. Taifeadfar an toiliú agus, más iomchuí, an tréigean dá dtagraítear i mír 1; beidh an nós imeachta taifeadta i gcomhréir le dlí náisiúnta an Stáit iarrtha.
4. Ní fhéadfar an toiliú agus, más iomchuí, an tréigean dá dtagraítear i mír 1 a chúlghairm. Féadfaidh na Ballstáit, agus a n-ionstraimí daingniúcháin, glactha, formheasta nó aontachais á dtaisceadh acu, a chur i bhfios i ndearbhú go bhféadfar an toiliú agus, más iomchuí, an tréigean a chúlghairm i gcomhréir leis na rialacha is infheidhme faoin dlí náisiúnta. Sa chás sin, ní chuirfear an tréimhse idir an toiliú a chur in iúl agus an chúlghairm a chur in iúl san áireamh d'fhonn na tréimhsí dá bhforáiltear in Airteagal 16(4) den Choinbhinsiún Eorpach um Eiseachadadh a shuíomh.
An toiliú a chur in iúl
1. Cuirfidh an Stát iarrtha toiliú an duine in iúl láithreach don Stát iarrthach. Chun go bhféadfaidh an Stát iarrthach iarraidh ar eiseachadadh a thíolacadh más iomchuí, cuirfidh an Stát iarrtha in iúl dó tráth nach déanaí ná deich lá tar éis na gabhála sealadaí ar thug nó nár thug an duine i dtrácht a thoiliú.
2. Is go díreach idir na húdaráis inniúla a dhéanfar an cur in iúl dá dtagraítear i mír 1.
An teideal chun riail na speisialtachta a thréigean
Féadfaidh gach Ballstát a dhearbhú, agus a ionstraim dhaingniúcháin, glactha, formheasta nó aontachais á taisceadh aige nó tráth ar bith eile, nach bhfuil na rialacha atá leagtha síos in Airteagal 14 den Choinbhinsiún Eorpach um Eiseachadadh infheidhme má thoilíonn an duine, i gcomhréir le hAirteagal 7 den Choinbhinsiún seo:
(a)leis an eiseachadadh, nó
(b)leis an eiseachadadh agus a theideal chun riail na speisialtachta a thréigean go sainráite.
An cinneadh eiseachadta a chur in iúl
1. D'ainneoin na rialacha atá leagtha síos in Airteagal 18(1) den Choinbhinsiún Eorpach um Eiseachadadh, is go díreach idir an t-údarás inniúil sa Stát iarrtha agus an t-údarás sa Stát iarrthach a rinne an iarraidh ar ghabháil shealadach a chuirfear in iúl an cinneadh maidir leis an eiseachadadh arna ghlacadh de bhun an nós imeachta simplithe agus an fhaisnéis maidir leis an nós imeachta simplithe eiseachadta.
2. Cuirfear an cinneadh dá dtagraítear i mír 1 in iúl faoi cheann fiche lá ar a dhéanaí amhail ón dáta ar thug an duine a thoiliú.
Tréimhse don tabhairt suas
1. Déanfar an duine a thabhairt suas faoi cheann fiche lá ón dáta a ndearnadh an cinneadh maidir le heiseachadadh a chur in iúl faoi na coinníollacha atá leagtha síos in Airteagal 10(2).
2. Ar an tréimhse dá bhforáiltear i mír 1 a dhul in éag, má bheidh an duine fós faoi choinne áil, scaoilfear saor é ar chríoch an Stáit iarrtha.
3. Má chuirfidh imthosca nach bhfuil neart ag an údarás inniúil dá dtagraítear in Airteagal 10(1) orthu bac ar thabhairt suas an duine sa tréimhse dá bhforáiltear i mír 1, cuirfidh an t-údarás sin an t-údarás eile ar an eolas faoi. Tiocfaidh an dá údarás ar comhaontú maidir le dáta nua don tabhairt suas. Sa chás sin, déanfar an tabhairt suas faoi cheann fiche lá ón dáta nua a comhaontaíodh amhlaidh. Má bheidh an duine i dtrácht á choinneáil fós tar éis don tréimhse sin a dhul in éag, scaoilfear saor é.
4. Ní bheidh míreanna 1, 2 agus 3 den Airteagal seo infheidhme i gcásanna ina dteastaíodh ón mBallstát iarrtha úsáid a bhaint as Airteagal 19 den Choinbhinsiún Eorpach um Eiseachadadh.
Toiliú arna thabhairt tar éis don tréimhse dá bhforáiltear in Airteagal 8 a dhul in éag nó in imthosca eile
1. Nuair a thabharfaidh duine a thoiliú tar éis don tréimhse deich lá dá bhforáiltear in Airteagal 8 a dhul in éag:
–cuirfidh an Stát iarrtha an nós imeachta simplithe dá bhforáiltear sa Choinbhinsiún seo chun feidhme mura mbeidh iarraidh ar eiseachadadh de réir bhrí Airteagal 12 den Choinbhinsiún Eorpach um Eiseachadadh faighte aige fós;
–féadfaidh an Stát iarrtha úsáid a bhaint as an nós imeachta simplithe sin má tá iarraidh ar eiseachadadh de réir bhrí Airteagal 12 den Choinbhinsiún Eorpach um Eiseachadadh faighte aige san idirlinn.
2. Mura mbeidh iarraidh ar ghabháil shealadach déanta agus go bhfuil toiliú tugtha tar éis iarraidh ar eiseachadadh a fháil, féadfaidh an Stát iarrtha leas a bhaint as an nós imeachta simplithe dá bhforáiltear sa Choinbhinsiún seo.
3. Agus a ionstraim dhaingniúcháin, glactha, formheasta nó aontachais á taisceadh aige, dearbhóidh gach Ballstát an bhfuil sé d'intinn aige an dara fleasc de mhír 1 agus mír 2 a chur i bhfeidhm agus cad iad na coinníollacha faoina ndéanfaidh sé sin.
Atheiseachadadh go Ballstát eile
Mura gcuirfear riail na speisialtachta i bhfeidhm ar an duine a eiseachadadh i gcomhréir leis an dearbhú ón mBallstát dá bhforáiltear in Airteagal 9 den Choinbhinsiún seo, ní bheidh Airteagal 15 den Choinbhinsiún Eorpach um Eiseachadadh infheidhme ar atheiseachadadh an duine sin go Ballstát eile mura bhforáiltear a mhalairt sa dearbhú thuasluaite.
I gcás idirthurais faoi na coinníollacha atá leagtha síos in Airteagal 21 den Choinbhinsiún Eorpach um Eiseachadadh, nuair is eiseachadadh de réir an nós imeachta simplithe atá i gceist, beidh na forálacha seo a leanas infheidhme:
(a)i gcás práinne, féadfar an t-iarratas, maille leis an bhfaisnéis is gá de bhun Airteagal 4, a sheoladh chuig an Stát idirthurais trí mhodh ar bith a fhág faidh taifead scríofa. Féadfaidh an Stát idirthurais a chinneadh a chur in iúl tríd an modh céanna;
(b)caithfidh gur leor an fhaisnéis dá dtagraítear in Airteagal 4 chun go mbeidh a fhios ag údarás inniúil an Stáit idirthurais gur eiseachadadh faoin nós imeachta simplithe é agus chun gur féidir leis na bearta srianta is gá a ghlacadh d'fhonn an t-idirthuras a fhorghníomhú maidir leis an duine a eiseachadadh.
Na húdaráis inniúla a chinneadh
Agus a ionstraim dhaingniúcháin, glactha, formheasta nó aontachais á taisceadh aige, cuirfidh gach Ballstát i bhfios, i ndearbhú, cé hiad na húdaráis inniúla de réir bhrí Airteagail 4 go 8, 10 agus 14.
Teacht i bhfeidhm
1. Beidh an Coinbhinsiún seo faoi réir a dhaingnithe, a ghlactha nó a fhormheasta. Déanfar na hionstraimí daingniúcháin, glactha nó formheasta a thaisceadh le hArdrúnaíocht Chomhairle an Aontais Eorpaigh. Cuirfidh Ardrúnaí na Comhairle an taisceadh sin in iúl do na Ballstáit uile.
2. Tiocfaidh an Coinbhinsiún seo i bhfeidhm nócha lá tar éis dháta na hionstraime daingniúcháin, glactha nó formheasta a thaisceadh ag an mBallstát is déanaí a dhéanfaidh an beart sin.
3. Go dtí go dtiocfaidh an Coinbhinsiún seo i bhfeidhm, féadfaidh gach Ballstát, tráth a ionstraime daingniúcháin, glactha nó formheasta a thaisceadh nó ar aon dáta eile, a dhearbhú go mbeidh an Coinbhinsiún seo infheidhme ina leith ina chaidreamh leis na Ballstáit a mbeidh an dearbhú céanna déanta acu nócha lá tar éis dáta a dhearbhaithe a thaisceadh.
4. Gabhfaidh éifeacht le gach dearbhú arna dhéanamh de bhun Airteagal 9 tríocha lá tar éis dháta a thaiscthe agus tráth nach luaithe ná dáta an Choinbhinsiúin seo a theacht i bhfeidhm nó a chur i bhfeidhm i leith an Bhallstáit i dtrácht.
5. Ní bheidh an Coinbhinsiún infheidhme ach ar iarrataí a dhéantar tar éis an dáta ar a dtiocfaidh sé i bhfeidhm nó ar a gcuirtear i bhfeidhm é idir an Stát iarrtha agus an Stát iarrthach.
1. Beidh an Coinbhinsiún seo ar oscailt d'aontachas aon Stáit a aontaigh chun bheith ina bhall den Aontas Eorpach.
2. Beidh comhúdarás ag téacs an Choinbhinsiúin i dteanga an Stáit aontaigh, arna tharraingt suas ag Ardrúnaíocht Chomhairle an Aontais Eorpaigh agus arna fhormheas ag na Ballstáit uile, leis na téacsanna barántúla eile. Seolfaidh an tArdrúnaí cóip dhílis dheimhnithe chuig gach Ballstát.
3. Déanfar na hionstraimí aontachais a thaisceadh le hArdrúnaíocht Chomhairle an Aontais Eorpaigh.
4. Tiocfaidh an Coinbhinsiún seo i bhfeidhm i leith aon Bhallstáit a aontaíonn dó nócha lá tar éis dó a ionstraim aontachais a thaisceadh nó ar dháta an Choinbhinsiúin a theacht i bhfeidhm, mura mbeidh sé tagtha i bhfeidhm cheana tráth na tréimhse nócha lá sin a dhul in éag.
5. I gcás nach mbeidh an Coinbhinsiún seo tagtha i bhfeidhm fós tráth a n-ionstraimí aontachais a thaisceadh, beidh forálacha Airteagal 16(3) infheidhme ar na Ballstáit aontacha.
I move amendment No. 19:
In page 21, after line 10, to insert the following:
drawn up on the basis of Article K3 of the Treaty on European Union, relating to extradition between the Member States of the European Union.THE HIGH CONTRACTING PARTIES to this Convention, Member States of the European Union,
REFERRING to the Act of the Council of the European Union of 27 September 1996,"
DESIRING to improve judicial cooperation between the Member States in criminal matters, with regard both to prosecution and to the execution of sentences,
RECOGNIZING the importance of extradition in judicial cooperation for the achievement of these objectives,
STRESSING that Member States have an interest in ensuring that extradition procedures operate efficiently and rapidly in so far as their systems of government are based on democratic principles and they comply with the obligations laid down by the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950,
EXPRESSING their confidence in the structure and operation of their judicial systems and in the ability of all Member States to ensure a fair trial,
BEARING IN MIND that by Act of 10 March 1995 the Council drew up the Convention on simplified extradition procedure between the Member States of the European Union,
TAKING ACCOUNT of the interest in concluding a Convention between the Member States of the European Union supplementing the European Convention on Extradition of 13 December 1957 and the other Conventions in force on the matter,
CONSIDERING that the provisions of those Conventions remain applicable for all matters not covered by this Convention,
HAVE AGREED AS FOLLOWS:
1. The purpose of this Convention is to supplement the provisions and facilitate the application between the Member States of the European Union:
–of the European Convention on Extradition of 13 December 1957, (hereinafter referred to as the ‘European Convention on Extradition'),
–the European Convention on the Suppression of Terrorism of 27 January 1977 (hereinafter referred to as the ‘European Convention on the Suppression of Terrorism'),
–the Convention of 19 June 1990 applying the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders in relations between the Member States which are party to that Convention, and
–the first chapter of the Treaty on Extradition and Mutual Assistance in Criminal Matters between the Kingdom of Belgium, the Grand-Duchy of Luxembourg and the Kingdom of the Netherlands of 27 June 1962, as amended by the Protocol of 11 May 1974 (hereinafter referred to as the ‘Benelux Treaty') in relations between the Member States of the Benelux Economic Union.
2. Paragraph 1 shall not affect the application of more favourable provisions in bilateral or multilateral agreements between Member States, nor, as provided for in Article 28 (3) of the European Convention on Extradition, shall it affect extradition arrangements agreed on the basis of uniform or reciprocal laws providing for the execution in the territory of a Member State of warrants of arrest issued in the territory of another Member State.
1. Extradition shall be granted in respect of offences which are punishable under the law of the requesting Member State by deprivation of liberty or a detention order for a maximum period of at least 12 months and under the law of the requested Member State by deprivation of liberty or a detention order for a maximum period of at least six months.
2. Extradition may not be refused on the grounds that the law of the requested Member State does not provide for the same type of detention order as the law of the requesting Member State.
3. Article 2 (2) of the European Convention on Extradition and Article 2 (2) of the Benelux Treaty shall also apply where certain offences are punishable by pecuniary penalties.
Conspiracy and association to commit offences
1. Where the offence for which extradition is requested is classified by the law of the requesting Member State as a conspiracy or an association to commit offences and is punishable by a maximum term of deprivation of liberty or a detention order of at least 12 months, extradition shall not be refused on the ground that the law of the requested Member State does not provide for the same facts to be an offence, provided the conspiracy or the association is to commit:
(a)one or more of the offences referred to in Articles 1 and 2 of the European Convention on the Suppression of Terrorism;
(b)any other offence punishable by deprivation of liberty or a detention order of a maximum of at least 12 months in the field of drug trafficking and other forms of organized crime or other acts of violence against the life, physical integrity or liberty of a person, or creating a collective danger for persons.
2. For the purpose of determining whether the conspiracy or the association is to commit one of the offences indicated under paragraph 1 (a) or (b) of this Article, the requested Member State shall take into consideration the information contained in the warrant of arrest or order having the same legal effect or in the conviction of the person whose extradition is requested as well as in the statement of the offences envisaged in Article 12 (2) (b) of the European Conven tion on Extradition or in Article 11 (2) (b) of the Benelux Treaty.
3. When giving the notification referred to in Article 18 (2), any Member State may declare that it reserves the right not to apply paragraph 1 or to apply it under certain specified conditions.
4. Any Member State which has entered a reservation under paragraph 3 shall make extraditable under the terms of Article 2 (1) the behaviour of any person which contributes to the commission by a group of persons acting with a common purpose of one or more offences in the field of terrorism as in Articles 1 and 2 of the European Convention on the Suppression of Terrorism, drug trafficking and other forms of organized crime or other acts of violence against the life, physical integrity or liberty of a person, or creating a collective danger for persons, punishable by deprivation of liberty or a detention order of a maximum of at least 12 months, even where that person does not take part in the actual execution of the offence or offences concerned; such contribution shall be intentional and made having knowledge either of the purpose and the general criminal activity of the group or of the intention of the group to commit the offence or offences concerned.
Order for deprivation of liberty in a place other than a penitentiary institution
1. Extradition for the purpose of prosecution shall not be refused on the ground that the request is supported, pursuant to Article 12 (2) (a) of the European Convention on Extradition or Article 11 (2) (a) of the Benelux Treaty, by an order of the judicial authorities of the requesting Member State to deprive the person of his liberty in a place other than a penitentiary institution.
1. For the purposes of applying this Convention, no offence may be regarded by the requested Member State as a political offence, as an offence connected with a political offence or an offence inspired by political motives.
2. Each Member State may, when giving the notification referred to in Article 18 (2), declare that it will apply paragraph 1 only in relation to:
(a)the offences referred to in Articles 1 and 2 of the European Convention on the Suppression of Terrorism;
(b)offences of conspiracy or association – which correspond to the description of behaviour referred to in Article 3 (4) – to commit one or more of the offences referred to in Articles 1 and 2 of the European Convention on the Suppression of Terrorism.
3. The provisions of Article 3 (2) of the European Convention on Extradition and of Article 5 of the European Convention on the Suppression of Terrorism remain unaffected.
4. Reservations made pursuant to Article 13 of the European Convention on the Suppression of Terrorism shall not apply to extradition between Member States.
1. With regard to taxes, duties, customs and exchange, extradition shall also be granted under the terms of this Convention, the European Convention on Extradition and the Benelux Treaty in respect of offences which correspond under the law of the requested Member State to a similar offence.
2. Extradition may not be refused on the ground that the law of the requested Member State does not impose the same type of taxes or duties or does not have the same type of provisions in connection with taxes, duties, customs and exchange as the law of the requesting Member State.
3. When giving the notification referred to in Article 18 (2), any Member State may declare that it will grant extradition in connection with a fiscal offence only for acts or omissions which may constitute an offence in connection with excise, value-added tax or customs.
Extradition of nationals
1. Extradition may not be refused on the ground that the person claimed is a national of the requested Member State within the meaning of Article 6 of the European Convention on Extradition.
2. When giving the notification referred to in Article 18 (2), any Member State may declare that it will not grant extradition of its nationals or will authorize it only under certain specified conditions.
3. Reservations referred to in paragraph 2 shall be valid for five years from the first day of application of this Convention by the Member State concerned. However, such reservations may be renewed for successive periods of the same duration.
Twelve months before the date of expiry of the reservation, the depositary shall give notice of that expiry to the Member State concerned.
No later than three months before the expiry of each five-year period, the Member State shall notify the depositary either that it is upholding its reservation, that it is amending it to ease the conditions for extradition or that it is withdrawing it.
In the absence of the notification referred to in the preceding subparagraph, the depositary shall inform the Member State concerned that its reservation isconsidered to have been extended automatically for a period of six months, before the expiry of which the Member State must give notification. On expiry of that period, failure to notify shall cause the reservation to lapse.
Lapse of time
1. Extradition may not be refused on the ground that the prosecution or punishment of the person would be statute-barred according to the law of the requested Member State.
2. The requested Member State shall have the option of not applying paragraph 1 where the request for extradition is based on offences for which that Member State has jurisdiction under its own criminal law.
Extradition shall not be granted in respect of an offence covered by amnesty in the requested Member State where that State was competent to prosecute the offence under its own criminal law.
Offences other than those upon which the request for extradition is based
1. A person who has been extradited may, in respect of offences committed before his surrender other than those upon which the request for extradition was based, without it being necessary to obtain the consent of the requested Member State:
(a)be prosecuted or tried where the offences are not punishable by deprivation of liberty;
(b)be prosecuted or tried in so far as the criminal proceedings do not give rise to the application of a measure restricting his personal liberty;
(c)be subjected to a penalty or a measure not involving the deprivation of liberty, including a financial penalty, or a measure in lieu thereof, even if it may restrict his personal liberty;
(d)be prosecuted, tried, detained with a view to the execution of a sentence or of a detention order or subjected to any other restriction of his personal liberty if after his surrender he has expressly waived the benefit of the rule of speciality with regard to specific offences preceding his surrender.
2. Waiver on the part of the person extradited as referred to in paragraph 1(d) shall be given before the competent judicial authorities of the requesting Member State and shall be recorded in accordance with that Member State's national law.
3. Each Member State shall adopt the measures necessary to ensure that the waiver referred to in paragraph 1 (cf) is established in such a way as to show that the person has given it voluntarily and in full awareness of the consequences. To that end, the person extradited shall have the right to legal counsel.
4. When the requested Member State has made a declaration pursuant to Article 6 (3), paragraph 1 (a), (b) and (c) of this Article shall not apply to fiscal offences except those referred to in Article 6 (3).
Presumption of consent of the requested Member State
Each Member State, when giving the notification referred to in Article 18 (2) or at any time, may declare that, in its relations with other Member States that have made the same declaration, consent for the purposes of Article 14 (1) (a) of the European Convention on Extradition and Article 13 (1) (a) of the Benelux Treaty is presumed to have been given, unless it indicates otherwise when granting extradition in a particular case.
Where in a particular case the Member State has indicated that its consent should not be deemed to have been given, Article 10 (1) still applies.
Re-extradition to another Member State
1. Article 15 of the European Convention on Extradition and Article 14 (1) of the Benelux Treaty shall not apply to requests for re-extradition from one Member State to another.
2. When giving the notification referred to in Article 18 (2), a Member State may declare that Article 15 of the European Convention on Extradition and Article 14 (1) of the Benelux Treaty shall continue to apply except where Article 13 of the Convention on simplified extradition procedure between the Member States of the European Union (1) provides otherwise or where the person concerned consents to be re-extradited to another Member State.
Central authority and transmission of documents by facsimile
1. Each Member State shall designate a central authority or, where its constitutional system so requires, central authorities responsible for transmitting and receiving extradition requests and the necessary supporting documents, as well as any other official correspondence relating to extradition requests, unless otherwise provided for in this Convention.
2. When giving the notification referred to in Article 18 (2) each Member State shall indicate the authority or authorities which it has designated pursuant to paragraph 1 of this Article. It shall inform the depositary of any change concerning the designation.
3. The extradition request and the documents referred to in paragraph 1 may be sent by facsimile transmission. Each central authority shall be equipped with a facsimile machine for transmitting and receiving such documents and shall ensure that it is kept in proper working order.
4. In order to ensure the authenticity and confidentiality of the transmission, a cryptographic device fitted to the facsimile machine possessed by the central authority shall be in operation when the equipment is being used to apply this Article.
Member States shall consult each other on the practical arrangements for applying this Article.
5. In order to guarantee the authenticity of extradition documents, the central authority of the requesting Member State shall state in its request that it certifies that the documents transmitted in support of that request correspond to the originals and shall describe the pagination. Where the requested Member State disputes that the documents correspond to the originals, its central authority shall be entitled to require the central authority of the requesting Member State to produce the original documents or a true copy thereof within a reasonable period through either diplomatic channels or any other mutually agreed channel.
When giving the notification referred to in Article 18 (2), or at any other time, any Member State may declare that, in its relations with other Member States which have made the same declaration, the judicial authorities or other competent authorities of those Member States may, where appropriate, make requests directly to its judicial authorities or other competent authorities responsible for criminal proceedings against the person whose extradition is requested for supplementary information in accordance with Article 13 of the European Convention on Extradition or Article 12 of the Benelux Treaty.
In making such a declaration, a Member State shall specify its judicial authorities or other competent authorities authorized to communicate and receive such supplementary information.
Any document or any copy of documents transmitted for the purposes of extradition shall be exempted from authentication or any other formality unless expressly required by the provisions of this, Convention, the European Convention on Extradition or the Benelux Treaty. In the latter case, copies of documents shall be considered to be authenticated when they have been certified true copies by the judicial authorities that issued the original or by the central authority referred to in Article 13.
In the case of transit, under the conditions laid down in Article 21 of the European Convention on Extradition and Article 21 of the Benelux Treaty, through the territory of one Member State to another Member State, the following provisions shall apply:
(a)any request for transit must contain sufficient information to enable the Member State of transit to assess the request and to take the constraint measures needed for execution of the transit vis-à-vis the extradited person.
To that end, the following information shall be sufficient:
–the identity of the person extradited,
–the existence of an arrest warrant or other document having the same legal effect or of an enforceable judgment,
–the nature and the legal description of the offence,
–a description of the circumstances in which the offence was committed, including the date and place;
(b)the request for transit and the information provided for in point (a) may be sent. to the Member State of transit by any means leaving a written record. The Member State of transit shall make its decision known by the same method;
(c)in the case of transport by air without a scheduled stopover, if an unscheduled landing occurs, the requesting Member State shall provide the transit Member State concerned with the information provided for in point (a);
(d)subject to the provisions of this Convention, in particular Articles 3, 5 and 7, the provisions of Article 21(1), (2), (5) and (6) of the European Convention on Extradition and Article 21 (1) of the Benelux Treaty shall continue to apply.
No reservations may be entered in respect of this Convention other than those for which it makes express provision.
Entry into force
1. This Convention shall be subject to adoption by the Member States in accordance with their respective constitutional requirements.
2. Member States shall notify the Secretary-General of the Council of the European Union of the completion of the constitutional procedures for the adoption of this Convention.
3. This Convention shall enter into force 90 days after the notification referred to in paragraph 2 by the State, Member of the European Union at the time of adoption by the Council of the Act drawing up this Convention, which is last to complete that formality.
4. Until this Convention enters into force, any Member State may, when giving the notification referred to in paragraph 2, or at any other time, declare that as far as it is concerned this Convention shall apply to its relations with Member States that have made the same declaration. Such declarations shall take effect 90 days after the date of deposit thereof.
5. This Convention shall apply only to requests submitted after the date on which it enters into force or is applied as between the requested Member State and the requesting Member State.
Accession of new Member States
1. This Convention shall be open to accession by any State that becomes a member of the European Union.
2. The text of this Convention in the language of the acceding State, drawn up by the Council of the European Union, shall be authentic.
3. The instruments of accession shall be deposited with the depositary.
4. This Convention shall enter into force with respect to any State that accedes to it 90 days after the deposit of its instrument of accession or on the date of entry into force of this Convention if it has not already entered into force at the time of expiry of the said period 90 days.
5. Where this Convention is not yet in force at the time of the deposit of their instrument of accession, Article 18 (4) shall apply to acceding Member States.
1. The Secretary-General of the Council of the European Union shall act as depositary of this Convention.
2. The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions, declarations and reservations, and also any other notification concerning this Convention.
In witness whereof, the undersigned Plenipotentiaries have hereunto set their hands.
Done in a single original, in the Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic, such original remaining deposited in the archives of the General Secretariat of the Council of the European Union. The Secretary-General shall transmit a certified copy to each of the Member States.
Joint Declaration on the right of asylum
The Member States declare that this Convention is without prejudice either to the right of asylum to the extent to which it is recognized by their respective constitutions or to the application by the Member States of the provisions of the Convention relating to the Status of Refugees of 28 July 1951, as supplemented by the Convention relating to the Status of Stateless Persons of 28 September 1954 and by the Protocol relating to the Status of Refugees of 31 January 1967.
Declaration by Denmark, Finland and Sweden concerning Article 7 of this Convention
Denmark, Finland and Sweden confirm that – as indicated during their negotiations on accession to the Schengen agreements – they will not invoke, in relation to other Member States which ensure equal treatment, their declarations under Article 6 (1) of the European Convention on Extradition as a ground for refusal of extradition of residents from non-Nordic States.
Declaration on the concept of ‘nationals'
The Council takes note of the Member States' undertaking to apply the Council of Europe Convention of 21 March 1983 on the Transfer of Sentenced Persons in respect of the nationals of each Member State within the meaning of Article 3 (4) of the said Convention.
The Member States' undertaking mentioned in the first paragraph is without prejudice to the application of Article 7 (2) of this Convention.
Declaration by Greece re Article 5
Greece interprets Article 5 from the standpoint of paragraph 3 thereof. This interpretation ensures compliance with the conditions of the Greek constitution, which:
–expressly prohibits extradition of a foreigner pursued for activities in defence of freedom,
–distinguishes between political and so-called mixed offences, for which the rules are not the same as for political offences.
Declaration by Portugal on extradition requested for an offence punishable by a life sentence or detention order
Having entered a reservation in respect of the European Convention on Extradition of 1957 to the effect that it will not grant extradition of persons wanted for an offence punishable by a life sentence or detention order, Portugal states that where extradition is sought for an offence punishable by a life sentence or detention order, it will grant extradition, in compliance with the relevant provisions of the Constitution of the Portuguese Republic, as interpreted by its Constitutional Court, only if it regards as sufficient the assurances given by the requesting Member State that it will encourage, in accordance with its law and practice regarding the carrying out of sentences, the application of any measures of clemency to which the person whose extradition is requested might be entitled.
Portugal reaffirms the validity of undertakings entered into in existing international agreements to which it is party, in particular in Article 5 of the Convention on Portuguese accession to the Convention Applying the Schengen Agreement.
Council declaration on the follow up to the Convention
The Council declares:
(a)that it considers that there should be a periodic review, on the basis of information supplied by the Member States, of:
–the implementation of this Convention,
–the functioning of this Convention after its entry into force,
–the possibility for Member States to amend the reservations entered in the framework of this Convention with a view to easing the conditions for extradition or withdrawing its reservations,
–the general functioning of extradition procedures between the Member States;
(b)that it will consider, one year after entry into force of this Convention, whether jurisdiction should be given to the Court of Justice of the European Communities.
arna dhréachtú ar bhonn Airteagal K.3 den Chonradh ar an Aontas Eorpach, a bhaineann leis an eiseachadadh idir Bhallstáit an Aontais Eorpaigh
TÁ NA hARDPHÁIRTITHE CONARTHACHA sa Choinbhinsiún seo, Ballstáit an Aontais Eorpaigh,
AG TAGAIRT DÓIBH do Ghníomh ón gComhairle an Aontais Eorpaigh an seachtú lá is fiche de Mheán Fómhair, míle naoi gcéad nócha a sé,
ÓS É A MIANGAS an comhar breithiúnach in ábhair choiriúla idir na Ballstáit a fheabhsú a mhéad a bhaineann le hionchúiseamh agus le forghníomhú pianbhreitheanna,
Á AITHINT DÓIBH a thábhachtaí atá an t-eiseachadadh i réimse an chomhair bhreithiúnaigh d'fhonn na cuspóirí sin a ghnóthú,
AG CUR I bhFIOS GO LÁIDIR gurb é leas na mBallstát a áirithiú go n-oibreoidh na nósanna imeachta eiseachadta go héifeachtúil sciobtha a mhéad atá a gcórais rialtais bunaithe ar phrionsabail an daonlathais agus a chomhallann na Ballstáit na hoibleagáidí atá leagtha síos sa Choinbhinsiún chun Cearta an Duine agus Saoirsí Bunúsacha a Chosaint a síníodh sa Róimh ar an 4 Samhain 1950;
AG CUR FRIOTAIL ar a n-iontaoibh as struchtúr agus oibriú a gcóras breithiúnach agus ábaltacht na mBallstát uile triail chóir a áirithiú;
AG MEABHRÚ DÓIBH gur dhréacht an Chomhairle an Coinbhinsiún maidir le nós imeachta simplithe eiseachadta idir Bhallstáit an Aontais Eorpaigh le Gníomh an 10 Márta 1995;
Á CHUR SAN ÁIREAMH gurb é a leas Coinbhinsiún a thabhairt i gcrích idir Bhallstáit an Aontais Eorpaigh a fhorlíonfaidh Coinbhinsiún Eorpach an 13 Nollaig 1957 um Eiseachadadh agus na Coinbhinsiúin eile ar an ábhar sin atá i bhfeidhm;
DE BHRÍ go leanfaidh forálacha na gCoinbhinsiún sin de bheith infheidhme maidir le gach ábhar nach bhfuil folaithe sa Choinbhinsiún seo,
TAR ÉIS COMHAONTÚ MAR A LEANAS:
1. Is é is aidhm don Choinbhinsiún seo na forálacha seo a leanas a fhorlíonadh agus a gcur i bhfeidhm idir Bhallstáit an Aontais Eorpaigh a éascú:
–forálacha Choinbhinsiún Eorpach an 13 Nollaig 1957 um Eiseachadadh, dá ngairtear an Coinbhinsiún Eorpach um ‘Eiseachadadh' anseo feasta,
–forálacha Choinbhinsiún Eorpach an 27 Eanáir 1977 chun Sceimhliú a Dhíchur, dá ‘ngairtear an Coinbhinsiún Eorpach chun Sceimhliú a Dhíchur' anseo feasta,
–forálacha Choinbhinsiún an 19 Meitheamh 1990 chun Comhaontú Schengen an 14 Meitheamh 1985 maidir le seiceálacha ag na comhtheorainneacha a dhíothú de réir a chéile a chur i bhfeidhm sa chaidreamh idir na Ballstáit is páirtithe sa Choinbhinsiún sin, agus
–forálacha Chaibidil I de Chonradh an 27 Meitheamh 1962 maidir le hEiseachadadh agus Cúnamh Frithpháirteach in Ábhair Choiriúla idir Ríocht na Beilge, Ard-Diúcacht Lucsamburg agus Ríocht na hÍsiltíre, mar atá arna leasú le Prótacal an Bealtaine 1974, dá ngairtear ‘Conradh Benelux' anseo feasta, sa chaidreamh idir na Ballstáit is comhaltaí d'Aontas Eacnamaíoch Benelux.
2. Ní dhéanfaidh mír 1 difear do chur i bhfeidhm forálacha is fabhraí de chomhaontuithe déthaobhacha nó iltaobhacha idir Bhallstáit ná, mar a fhoráiltear in Airteagal 28(3) den Choinbhinsiún Eorpach um Eiseachadadh, do shocruithe um eiseachadadh arna mbunú ar dhlíthe comhionanna nó cómhalartacha maidir le barántais ghabhála arna n-eisiúint ar chríoch Bhallstáit a fhorghníomhú ar chríoch Bhallstáit eile.
1. Deonófar eiseachadadh i leith cionta is inphionóis faoi dhlí an Bhallstáit iarrthaigh le cailleadh saoirse nó ordú coinneála go ceann uastréimhse dhá mhí dhéag ar a laghad agus faoi dhlí an Bhallstáit iarrtha le cailleadh saoirse nó ordú coinneála go ceann uastréimhse sé mhí ar a laghad.
2. Ní fhéadfar eiseachadadh a dhiúltú ar an bhforas nach bhforáiltear i ndlí an Bhallstáit iarrtha d'ordú coinneála den saghas céanna dá bhforáiltear i ndlí an Bhallstáit iarrthaigh.
3. Beidh Airteagal 2(2) den Choinbhinsiún Eorpach um Eiseachadadh agus Airteagal 2(2) de Chonradh Benelux infheidhme freisin nuair a bheidh cionta áirithe inphionóis le pionóis airgid.
Comhcheilg agus comhlachas chun cionta a dhéanamh
1. Nuair a rangaífear an cion a n-iarrtar eiseachadadh ina leith i ndlí an Bhallstáit iarrthaigh mar chomhcheilg nó comhlachas chun cionta a dhéanamh agus gurb inphionóis an cion sin le cailleadh saoirse nó ordú coinneála go ceann uastréimhse dhá mhí dhéag ar a laghad, ní fhéadfar an t-eiseachadadh a dhiúltú ar an bhforas nach bhforáiltear i ndlí an Bhallstáit iarrtha gur cion iad na fíorais chéanna, ar chuntar gur comhcheilg nó comhlachas é:
(a)chun cion nó cionta a dhéanamh dá dtagraítear in Airteagail 1 agus 2 den Choinbhinsiún Eorpach chun Sceimhliú a Dhíchur,
(b)chun aon chion eile a dhéanamh is inphionóis le cailleadh saoirse nó ordú coinneála go ceann uastréimhse dhá mhí dhéag ar a laghad i dtaca le gáinneáil drugaí agus saghsanna eile coirpeachta eagraithe nó gníomhartha eile foréigin in aghaidh beatha, iomláine coirp nó saoirse duine, nó is údar le contúirt chomhchoiteann do dhaoine.
2. D'fhonn a chinneadh gur comhcheilg nó comhlachas é chun ceann de na cionta dá dtagraítear i bpointe (a) nó (b) de mhír 1 den Airteagal seo a dhéanamh, cuirfidh an Ballstát iarrtha san áireamh an fhaisnéis atá sa bharántas gabhála nó in ordú a bhfuil an éifeacht dhlíthiúil chéanna aige nó i gciontú an duine a n-iarrtar a eiseachadadh agus sa ráiteas faoi na cionta dá bhforáiltear in Airteagal 12(2), pointe (b), den Choinbhinsiún Eorpach um Eiseachadadh nó in Airteagal 11(2), pointe (b), de Chonradh Benelux.
3. Féadfaidh gach Ballstát, agus an fógra dá dtagraítear in Airteagal 18(2) á thabhairt aige, a dhearbhú go bhforchoimeádann sé an ceart gan mír 1 a chur i bhfeidhm nó í a chur i bhfeidhm faoi choinníollacha sonraithe áirithe.
4. Aon Bhallstát a bhfuil forchoimeádas déanta aige faoi mhír 3, déanfaidh sé socrú gur cion ineiseachadta é, de réir bhrí Airteagal 2(1), iompar aon duine a rannchuidíonn le grúpa daoine ag gníomhú dóibh le comhchuspóir do dhéanamh ciona nó cionta i réimse na sceimhlitheoireachta dá dtagraítear in Airteagail 1 agus 2 den Choinbhinsiún Eorpach chun Sceimhliú a Dhíchur, i dtaca le gáinneáil drugaí agus saghsanna eile coirpeachta eagraithe nó gníomhartha eile foréigin in aghaidh beatha, iomláine coirp nó saoirse duine, nó is údar le contúirt chomhchoiteann do dhaoine, is inphionóis le cailleadh saoirse nó ordú coinneála go ceann uastréimhse dhá mhí dhéag ar a laghad, fiú nuair nach nglacann an duine sin páirt i ndéanamh iarbhír an chiona nó na gcionta i dtrácht; beidh an rannchuidiú déanta go hintinneach agus le heolas ar chuspóir agus gníomhaíocht choiriúil ghinearálta an ghrúpa nó ar intinn an ghrúpa chun an cion nó na cionta i dtrácht a dhéanamh.
Ordú maidir le cailleadh saoirse in ionad seachas príosún
1.Ní dhiúltófar eiseachadadh chun críocha ionchúisimh ar an bhforas go bhfuil mar thaca leis an iarraidh, de bhun Airteagal 12(2), pointe (a), den Choinbhinsiún Eorpach um Eiseachadadh nó Airteagal 11(2), pointe (a), de Chonradh Benelux, ordú ó údaráis bhreithiúnacha an Bhallstáit iarrthaigh chun a shaoirse a bhaint den duine trína choinneáil in ionad seachas príosún.
1. Chun an Coinbhinsiún seo a chur i bhfeidhm, ní bhreathnóidh an Ballstát iarrtha ar aon chion mar chion polaitiúil, mar chion a bhfuil baint aige le cion polaitiúil nó mar chion a bhfuil tucaidí polaitiúla leis.
2. Féadfaidh gach Ballstát, agus an fógra dá dtagraítear in Airteagal 18(2) á thabhairt aige, a dhearbhú nach gcuirfidh sé mír 1 i bhfeidhm ach i leith na gcionta seo a leanas:
(a)cionta dá dtagraítear in Airteagail 1 agus 2 den Choinbhinsiún Eorpach chun Sceimhliú a Dhíchur, agus
(b)cionta comhcheilge nó comhlachais – a fhreagraíonn don tuairisc ar iompar dá dtagraítear in Airteagal 3(4) – chun ceann amháin nó níos mó de na cionta dá dtagraítear in Airteagail 1 agus 2 den Choinbhinsiún Eorpach chun Sceimhliú a Dhíchur a dhéanamh.
3. Ní dhéantar difear d'fhorálacha Airteagal 3(2) den Choinbhinsiún Eorpach um Eiseachadadh ná Airteagal 5 den Choinbhinsiún Eorpach chun Sceimhliú a Dhíchur.
4. Ní bheidh na forchoimeádais arna ndéanamh faoi Airteagal 13 den Choinbhinsiún Eorpach chun Sceimhliú a Dhíchur infheidhme ar an eiseachadadh idir Bhallstáit.
1. Maidir le cánacha, dleachtanna, custam agus malairt, deonófar eiseachadadh freisin de réir fhorálacha an Choinbhinsiúin seo, an Choinbhinsiúin Eorpaigh um Eiseachadadh agus Chonradh Benelux, i leith cionta a fhreagraíonn faoi dhlí an Bhallstáit iarrtha do chion den chineál céanna.
2. Ní fhéadfar eiseachadadh a dhiúltú ar an bhforas nach bhforchuireann dlí an Bhallstáit iarrtha an cineál céanna cánacha nó dleachtanna nó nach bhfuil forálacha den chineál céanna ann maidir le cánacha, dleachtanna, custam agus malairt atá i ndlí an Bhallstáit iarrthaigh.
3. Féadfaidh gach Ballstát, agus an fógra dá dtagraítear in Airteagal 18(2) á thabhairt aige, a dhearbhú nach ndeonóidh sé eiseachadadh i ndáil le cion fioscach ach i leith gníomhartha nó neamhghníomhartha a fhéadfaidh a bheith ina gcion i ndáil le mál, cáin bhreisluacha nó custam.
Náisiúnaigh a eiseachadadh
1. Ní fhéadfar eiseachadadh a dhiúltú ar an bhforas gur náisiúnach de chuid an Bhallstáit iarrtha de réir bhrí Airteagal 6 den Choinbhinsiún Eorpach um Eiseachadadh an duine a éilítear.
2. Féadfaidh gach Ballstát, agus an fógra dá dtagraítear in Airteagal 18(2) á thabhairt aige, a dhearbhú nach ndeonóidh sé eiseachadadh a náisiúnach nó nach n-údaróidh sé é ach faoi choinníollacha sonraithe áirithe.
3. Beidh na forchoimeádais dá dtagraítear i mír 2 bailí go ceann cúig bliana amhail ón gcéad lá a bheidh an Coinbhinsiún seo á chur i bhfeidhm ag an mBallstát i dtrácht. Féadfar, áfach, na forchoimeádais sin a athnuachan go ceann tréimhsí leanúnacha den fhad céanna.
Dhá mhí dhéag roimh dháta dul in éag an fhorchoimeádais, cuirfidh an taiscí fógra maidir leis an dul in éag sin chuig an mBallstát i dtrácht.
Tráth nach déanaí ná trí mhí roimh dhul in éag do gach tréimhse cúig bliana, cuirfidh an Ballstát in iúl don taiscí go bhfuil a fhorchoimeádas á choimeád ar bun aige, go bhfuil sé á leasú chun na coinníollacha eiseachadta a éascú nó go bhfuil sé á tharraingt siar.
Mura dtabharfar an fógra dá dtagraítear san fhomhír sin roimhe seo, cuirfidh an taiscí in iúl don Bhallstát i dtrácht go meastar a fhorchoimeádas a bheith fadaithe go huathoibríoch go ceann tréimhse sé mhí agus caithfidh an Ballstát fógra a thabhairt roimh dheireadh na tréimhse sin. Mura mbeidh fógra tugtha ar dhul in éag don tréimhse sin, rachaidh an forchoimeádas i léig.
1. Ní fhéadfar eiseachadadh a dhiúltú ar an bhforas go mbeadh ionchúiseamh nó pionósú an duine faoi urchosc reachta de réir dhlí an Bhallstáit iarrtha.
2. Beidh de rogha ag an mBallstát iarrtha gan mír 1 a chur i bhfeidhm nuair atá an iarraidh ar eiseachadadh bunaithe ar chionta a bhfuil dlínse ag an mBallstát sin ina leith faoina dhlí coiriúil féin.
Ní dheonófar eiseachadadh i leith ciona atá folaithe ag ollmhaithiúnas sa Bhallstát iarrtha má bhí an Ballstát sin inniúil chun an cion a ionchúiseamh faoina dhlí coiriúil féin.
Cionta seachas na cionta a bhfuil an iarraidh ar eiseachadadh bunaithe orthu
1. I leith cionta a rinneadh sular tugadh suas duine a eiseachadadh seachas na cionta a bhfuil an iarraidh ar eiseachadadh bunaithe orthu, féadfar an duine sin, gan é a bheith riachtanach toiliú a fháil ón mBallstát iarrtha:
(a)a ionchúiseamh nó a thriail nuair nach bhfuil na cionta inphionóis le cailleadh saoirse;
(b)a ionchúiseamh nó a thriail a mhéad nach leanfaidh de na himeachtaí coiriúla beart a chur i bhfeidhm a shrianfadh a shaoirse phearsanta
(c)a chur faoi phionós nó beart nach bhfuil cailleadh saoirse i gceist ann, lena n-áirítear pionós airgid, nó beart ina ionad sin, fiú más dóigh dó a shaoirse phearsanta a shrianadh, nó
(d)a ionchúiseamh, a thriail, a choinneáil d'fhonn pianbhreith nó ordú coinneála a chur isteach nó a chur faoi aon srianadh eile ar a shaoirse phearsanta má dhéanann sé, tar éis a thabhairt suas, a theideal chun riail na speisialtachta a tharscaoileadh go sainráite i leith cionta sonracha a rinneadh sular tugadh suas é.
2. Tabharfar an tarscaoileadh ón duine eiseachadta dá dtagraítear i mír 1, pointe (d), os comhair údaráis bhreithiúnacha inniúla an Bhallstáit iarrthaigh agus taifeadfar é i gcomhréir le dlí náisiúnta an Bhallstáit sin.
3. Glacfaidh gach Ballstát na bearta is gá chun a áirithiú go bhfuil an tarscaoileadh d á dtagraítear i mír 1, pointe (d), suite ar dhóigh a léiríonn gur thug an duine i dtrácht dá dheoin féin é agus é lánfheasach ar na hiarmhairtí. Chuige sin, beidh de cheart ag an duine eiseachadta comhairle dlíodóra a fháil.
4. Nuair atá dearbhú déanta ag an mBallstát iarrtha de bhun Airteagal 6(3), ní bheidh pointí (a), ( b) agus (c) de mhír 1 den Airteagal seo infheidhme ar chionta fioscacha seachas na cinn dá dtagraítear in Airteagal 6(3).
Toiliú an Bhallstáit iarrtha a thoimhdiú
Tráth an fhógra dá dtagraítear in Airteagal 18(2) a thabhairt nó tráth ar bith eile, féadfaidh gach Ballstát a dhearbhú go dtoimhdeofar, ina chaidreamh leis na Ballstáit eile a bhfuil an dearbhú céanna déanta acu, go bhfuil an toiliú chun críocha Airteagal 14(1), pointe (a), den Choinbhinsiún Eorpach um Eiseachadadh agus Airteagal 13(1), pointe (a), de Chonradh Benelux tugtha mura sonróidh sé a mhalairt agus eiseachadadh á dheonú aige i gcás áirithe.
Nuair a shonraíonn an Ballstát i gcás áirithe nach cóir a mheas go bhfuil a thoiliú tugtha, leanfaidh Airteagal 10(1) den Choinbhinsiún seo de bheith infheidhme.
Atheiseachadadh chuig Ballstát eile
1. Ní bheidh Airteagal 15 den Choinbhinsiún Eorpach um Eiseachadadh ná Airteagal 14(1) de Chonradh Benelux infheidhme ar iarrataí ar atheiseachadadh ó Bhallstát go Ballstát eile.
2. Féadfaidh Ballstát, agus an fógra dá dtagraítear in Airteagal 18(2) á thabhairt aige, a dhearbhú go leanfaidh Airteagal 15 den Choinbhinsiún Eorpach um Eiseachadadh agus Airteagal 14(1) de Chonradh Benelux de bheith infheidhme mura bhforáiltear a mhalairt in Airteagal 13 den Choinbhinsiún maidir le nós imeachta simplithe eiseachadta idir Bhallstáit an Aontais Eorpaigh (1) nó nuair a thoilíonn an duine i dtrácht lena atheiseachadadh chuig Ballstát eile.
Údarás lárnach agus cáipéisí tacaíochta a tharchur le facs
1. Ainmneoidh gach Ballstát údarás lárnach nó, más riachtanach sin faoina chóras bunreachtúil, údaráis lárnacha a bheidh freagrach as iarrataí ar eiseachadadh agus na cáipéisí tacaíochta is gá maille le haon chomhfhreagras oifigiúil a bhaineann leis na hiarrataí ar eiseachadadh a tharchur agus a ghlacadh, mura bhforáiltear a mhalairt sa Choinbhinsiún seo.
2. Sonróidh gach Ballstát, agus an fógra dá dtagraítear in Airteagal 18(2) á thabhairt aige, an t-údarás nó na húdaráis atá ainmnithe aige de bhun mhír 1 den Airteagal seo. Cuirfidh sé aon athrú a bhainfidh leis an ainmniú sin in iúl don taiscí.
3. Féadfar facs a úsáid chun an iarraidh ar eiseachadadh agus na cáipéisí dá dtagraítear i mír 1 a tharchur. Beidh meaisín facs chun cáipéisí den sórt sin a tharchur agus a ghlacadh ag gach údarás lárnach agus féachfaidh sé chuige go mbeidh sé ag obair go rianúil.
4. D'fhonn barántúlacht agus rúndacht an tarchuir a áirithiú, déanfar feiste chripteagrafach a bheidh curtha ar mheaisín facs an údaráis lárnaigh a oibriú nuair a bheidh an trealamh sin á úsáid chun an tAirteagal seo a chur i bhfeidhm.
Rachaidh na Ballstáit i gcomhairle le chéile maidir leis na socruithe praiticiúla chun an tAirteagal seo a chur i bhfeidhm.
5. D'fhonn barántúlacht na gcáipéisí eiseachadta a áirithiú, déanfaidh údarás lárnach an Bhallstáit iarrthaigh a dhearbhú ina iarraidh go ndeimhníonn sé go bhfreagraíonn na cáipéisí atá tarchurtha mar thacaíocht leis an iarraidh sin do na cáipéisí bunaidh agus tabharfaidh sé tuairisc ar uimhriú na leathanach. Má dhíospóidfidh an Ballstát iarrtha go bhfreagróidh na cáipéisí do na bunleaganacha, beidh a údarás lárnach i dteideal a iarraidh ar údarás lárnach an Bhallstáit iarrthaigh na cáipéisí bunaidh nó cóip dhílis díobh a thabhairt ar aird laistigh de thréimhse réasúnach trí bhealaí na taidhleoireachta nó ar bhealach comhaontaithe ar bith eile.
Tráth an fhógra dá dtagraítear in Airteagal 18(2) a thabhairt nó tráth ar bith eile, féadfaidh gach Ballstát a dhearbhú gurb amhlaidh, ina chaidreamh leis na Ballstáit eile a bhfuil an dearbhú céanna déanta acu, go bhféadfaidh údaráis bhreithiúnacha nó údaráis inniúla eile na mBallstát sin, más iomchuí, eolas breise i gcomhréir le hAirtea gal 13 den Choinbhinsiún Eorpach um Eiseachadadh nó Airteagal 12 de Chonradh Benelux a iarraidh go díreach ar a údaráis bhreithiúnacha nó údaráis inniúla eile atá freagrach as imeachtaí coiriúla i gcoinne an duine a n-iarrtar a eiseachadadh.
Sonróidh an Ballstát, agus an dearbhú sin á dhéanamh aige, na húdaráis bhreithiúnacha nó na húdaráis inniúla eile dá chuid atá údaraithe chun an t-eolas breise sin a tharchur agus a ghlacadh.
Beidh gach cáipéis agus gach cóip de cháipéis arna tharchur chun críocha eiseachadta díolmhaithe ón bhfíordheimhniú nó ó aon fhoirmiúlacht eile mura bhforáiltear a mhalairt go sainráite i bhforálacha an Choinbhinsiúin seo, an Choinbhinsiúin Eorpaigh um Eiseachadadh nó Chonradh Benelux. Sa chás deireanach sin, measfar na cóipeanna de cháipéisí a bheith fíordheimhnithe nuair a dheimhníonn na húdaráis bhreithiúnacha a d'eisigh an bunleagan nó an t-údarás lárnach dá dtagraítear in Airteagal 13 gur cóipeanna dílse iad.
I gcás idirthurais, faoi na coinníollacha atá leagtha síos in Airteagal 21 den Choinbhinsiún Eorpach um Eiseachadadh agus Airteagal 21 de Chonradh Benelux, trí chríoch Bhallstáit chuig Ballstát eile, beidh na forálacha seo a leanas infheidhme:
(a)Caithfidh gur leor an fhaisnéis san iarraidh ar idirthuras chun gur féidir leis an mBallstát idirthurais an iarraidh a mheas agus na bearta srianta is gá a ghlacadh d'fhonn an t-idirthuras a fhorghníomhú maidir leis an duine atá á eiseachadadh.
Is leor an fhaisnéis seo a leanas chun na críche sin:
–céannacht an duine atá á eiseachadadh;
–barántas gabhála nó cáipéis eile a bhfuil an éifeacht dhlíthiúil chéanna aici nó breithiúnas infhorghníomhaithe a bheith ar marthain; cineál agus tuairisc dhlíthiúil an chiona;
–tuairisc ar na himthosca ina ndearnadh an cion, lena n-áirítear an dáta agus an áit.
(b)Féadfar an iarraidh ar idirthuras agus an fhaisnéis dá bhforáiltear i bpointe (a) a sheoladh chuig an mBallstát idirthurais trí mhodh ar bith a fhágann taifead scríofa. Cuirfidh an Ballstát idirthurais a chinneadh in iúl tríd an modh céanna.
(c)I gcás aeriompair gan stad sceidealta, má tharlaíonn tuirlingt neamhsceidealta, soláthróidh an Ballstát iarrthach an fhaisnéis dá bhforáiltear i bpointe (a) don Bhallstát idirthurais i dtrácht.
(d)Faoi réir fhorálacha an Choinbhinsiúin seo, go háirithe Airteagail 3, 5, agus 7, leanfaidh forálacha Airteagal 21(1), (2), (5) agus (6) den Choinbhinsiún Eorpach um Eiseachadadh agus Airteagal 21 de Chonradh Benelux de bheith infheidhme.
Ní fhéadfar aon forchoimeádas a dhéanamh i leith an Choinbhinsiúin seo seachas na cinn dá bhforáiltear go sainráite ann.
Teacht i bhfeidhm
1. Beidh an Coinbhinsiún seo faoi réir a ghlactha ag na Ballstáit i gcomhréir lena rialacha bunreachtúla faoi seach.
2. Cuirfidh na Ballstáit in iúl d'Ardrúnaí Chomhairle an Aontais Eorpaigh go bhfuil na nósanna imeachta is gá faoina rialacha bunreachtúla faoi seach chun an Coinbhinsiún seo a ghlacadh comhlíonta acu.
3. Tiocfaidh an Coinbhinsiún seo i bhfeidhm nócha lá tar éis don fhógra dá dtagraítear i mír 2 a bheith tugtha ag an Stát is Ballstát den Aontas Eorpach an tráth a ghlacfaidh an Chomhairle an Gníomh ag dréachtú an Choinbhinsiúin seo is déanaí a dhéanfaidh an beart sin.
4. Go dtí go dtiocfaidh an Coinbhinsiún seo i bhfeidhm, féadfaidh aon Bhallstát, tráth an fhógra dá dtagraítear i mír 2 a thabhairt nó tráth ar bith eile, a dhearbhú go mbeidh an Coinbhinsiún seo infheidhme a mhéad a bhaineann leis ina chaidreamh leis na Ballstáit a mbeidh an dearbhú céanna déanta acu. Beidh éifeacht leis na dearbhuithe sin nócha lá tar éis dáta a dtaiscthe.
5. Ní bheidh an Coinbhinsiún seo infheidhme ach ar iarrataí a dhéanfar tar éis an dáta ar a dtiocfaidh sé i bhfeidhm nó ar a gcuirfear i bhfeidhm é idir an Ballstát iarrtha agus an Ballstát iarrthach.
Aontachas Ballstát nua
1. Beidh an Coinbhinsiún seo ar oscailt d'aontachas aon Stáit a thiocfaidh chun bheith ina Bhallstát den Aontas Eorpach.
2. Is téacs údarásach téacs an Choinbhinsiúin seo i dteanga an Stáit aontaigh, arna dhréachtú ag Comhairle an Aontais Eorpaigh.
3. Déanfar na hionstraimí aontachais a thaisceadh leis an taiscí.
4. Tiocfaidh an Coinbhinsiún seo i bhfeidhm i leith aon Stáit a aontaíonn dó nócha lá tar éis dó a ionstraim aontachais a thaisceadh nó ar dháta an Choinbhinsiúin a theacht i bhfeidhm, mura mbeidh sé tagtha i bhfeidhm cheana tráth na tréimhse thuasluaite nócha lá a dhul in éag.
5. I gcás nach mbeidh an Coinbhinsiún seo tagtha i bhfeidhm fós tráth a n-ionstraimí aontachais a thaisceadh, beidh forálacha Airteagal 18(4) infheidhme ar na Ballstáit aontacha.
1. Is é Ardrúnaí Chomhairle an Aontais Eorpaigh taiscí an Choinbhinsiúin seo.
2. Foilseoidh an taiscí in Iris Oifigiúil na gComhphobal Eorpach faisnéis maidir leis an gCoinbhinsiún a ghlacadh agus aontachais leis, na dearbhuithe, na forchoimeádais agus gach fógra eile a bhaineann leis.
Dearbhú comhpháirteach maidir leis an gceart chun tearmainn
Dearbhaíonn na Ballstáit go bhfuil an Coinbhinsiún seo gan dochar don cheart chun tearmainn a mhéad atá sé aitheanta ag a mBunreachtanna faoi seach nó do na Ballstáit sin forálacha Choinbhinsiún an 28 Iúil 1951 maidir le Stádas Dídeanaithe, mar atá arna fhorlíonadh le Coinbhinsiún an 28 Meán Fómhair 1954 maidir le Stádas Daoine gan Stát agus le Prótacal an 31 Eanáir 1967 maidir le Stádas Dídeanaithe, a chur i bhfeidhm.
Dearbhú ón Danmhairg, ón bhFionlainn agus ón tSualainn maidir le hAirteagal 7 den Choinbhinsiún seo
Deimhníonn an Danmhairg, an Fhionlainn agus an tSualainn – mar a dúirt siad le linn na caibidlíochta i gcomhair a n-aontachais le Comhaontuithe Schengen – nach ndéanfaidh siad a ndearbhuithe faoi Airteagal 6(1) den Choinbhinsiún Eorpach um Eiseachadadh a agairt mar fhoras, i leith na mBallstát eile a áirithíonn cóir chomhionann, chun eiseachadadh cónaitheoirí ó Stáit nach Stáit Nordacha iad a dhiúltú.
Dearbhú maidir leis an gcoincheap ‘Náisiúnaigh'
Tugann an Chomhairle dá haire gealltanas na mBallstát Coinbhinsiún Chomhairle na hEorpa an 21 Márta 1983 maidir le hAistriú Daoine faoi Phianbhreith a chur chun feidhme i leith náisiúnaigh gach Ballstáit de réir bhrí Airteagal 3(4) den Choinbhinsiún sin.
Tá an gealltanas ó na Ballstáit atá luaite sa chéad mhír gan dochar do chur i bhfeidhm Airteagal 7(2) den Choinbhinsiún seo.
Dearbhú ón nGréig maidir le hAirteagal 5
Léiríonn an Ghréig Airteagal 5 faoi threoir mhír 3 den Airteagal sin. Áirithíonn an léiriú sin go gcomhlíonfar coinníollacha Bhunreacht na Gréige:
–a thoirmisceann go sainráite eachtrannach a eiseachadadh atá á lorg toisc a ghníomhaíochtaí ar mhaithe leis an tsaoirse, agus
–a dhéanann idirdhealú idir cionta polaitiúla agus cionta dá ngairtear cionta measctha nach bhfuil na rialacha céanna infheidhme orthu agus atá ar chionta polaitiúla.
Dearbhú ón bPortaingéil maidir le heiseachadadh arna iarraidh i dtaca le cion is inphionóis le pianbhreith saoil nó ordú coinneála saoil
Tar éis di forchoimeádas maidir le Coinbhinsiún Eorpach um Eiseachadadh 1957 a dhéanamh á rá nach ndeonóidh sí eiseachadadh daoine a iarrfar i dtaca le cion is inphionóis le pianbhreith saoil nó ordú coinneála saoil, dearbhaíonn an Phortaingéil, nuair a iarrtar eiseachadadh i dtaca le cion is inphionóis le pianbhreith saoil nó ordú coinneála saoil, nach ndeonóidh sí an t-eiseachadadh, i gcomhlíonadh fhorálacha ábhartha Bhunreacht Phoblacht na Portaingéile mar atá arna léiriú ag Cúirt Bhunreachta, ach amháin más leor dar léi na forchinntithe arna dtabhairt ag an mBallstát iarrthach go ndéanfaidh sé bearta trócaire a chur ar aghaidh, i gcomhréir lena dhlí agus lena chleachtas um pionóis a fhorghníomhú, a d'fhéadfadh an duine a n-iarrtar a eiseachadadh a bheith i dteideal a fháil.
Athdhearbhaíonn an Phortaingéil bailíocht na ngealltanas arna ndéanamh i gcomhaontuithe idirnáisiúnta láithreacha ar páirtí iontu í agus go háirithe in Airteagal 5 de Choinbhinsiún Aontachais na Portaingéile leis an gCoinbhinsiún chun Comhaontú Schengen a chur i bhfeidhm.
Dearbhú ón gComhairle maidir le feidhmiú an Choinbhinsiúin
Dearbhaíonn an Chomhairle:
(a)go measann sí nach foláir:
–cur chun feidhme an Choinbhinsiúin seo,
–oibriú an Choinbhinsiúin seo nuair a bheidh sé tagtha i bhfeidhm,
–an chaoi atá ag na Ballstáit na forchoimeádais arna ndéanamh faoi chuimsiú an Choinbhinsiúin seo a leasú chun na coinníollacha don eiseachadadh a éascú nó na forchoimeádais sin a tharraingt siar,
–oibriú ginearálta na nósanna imeachta eiseachadta idir na Ballstáit a athbhreithniú go tráthrialta ar bhonn faisnéise arna soláthar ag na Ballstáit;
(b)go mbreithneoidh sí, faoi cheann bliana tar éis don Choinbhinsiún seo a theacht i bhfeidhm, an cóir dlínse a thabhairt do Chúirt Bhreithiúnais na gComhphobal Eorpach.