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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
01 August 2007
EXTRADITION TREATY & MUTUAL LEGAL ASSISTANCE TREATY WITH THE ARGENTINE REPUBLIC: DEPARTMENT BRIEFING
Chairperson: Ms F Chohan (ANC)
Documents handed out:
Treaty between RSA and the Argentine Republic on Mutual Legal Assistance in Criminal Matters
Extradition treaty between the RSA and the Argentine Republic
Audio recording of meeting
The Department of Justice briefed the Committee on two treaties with the Argentine Republic dealing with Mutual Legal Assistance in Criminal Matters and Extradition. The Department described the clauses of each Bill and indicated that both treaties were based closely on treaties already adopted by South Africa with other countries, and that the Extradition Treaty was also based on the UN Model Treaty. The Department noted that South Africa's extradition treaties with the USA and Australia had recently been challenged by individuals opposing their extradition, and that the decisions on both matters were awaited in the High Court. There had been an indication already that no matter the outcome, the matters were likely also to be referred to the Constitutional Court. Although the individuals were claiming that the extradition treaties should have been passed as domestic laws, the Department was of the view that the provisions of the Constitution and the Extradition Act did not require this. It was agreed that copies of the arguments would be forwarded, in confidence, to the Committee but that in the meantime the Committee should proceed along the lines of past treaty adoption.
The Committee raised questions on the circumstances in which extradition would take place, and clarified that it was necessary that the circumstances would constitute an offence in the requesting and requested State. There was some concern that acts "of a political nature" were not defined clearly, although this was a difficult issue.
The Committee postponed its decision to ratify the treaties until a later date.
Consideration of treaties with the Argentine Republic: briefing by Department of Justice
Mr Herman van Heerden, Senior Legal Administrative Officer, Department of Justice noted that South Africa's extradition treaties with the USA and Australia had been challenged in the High Court on the basis that they had not been properly enacted into domestic law. Currently the Department was awaiting the High Court's decision on two extradition cases. The argument had been advanced that a treaty could only be valid if enacted by an Act of Parliament. The Department's view was based on Section 231 of the Constitution, that these were self-executing agreements that did not require enactments. Both parties had indicated that no matter the outcome in the High Court it would be referred to the Constitutional Court. There had been a further argument that the procedures in the National Assembly and National Council of Provinces were not properly followed, but separate legal counsel for Parliament had argued this matter.
The Department was confident that the procedure it had followed was correct. However, the concept of the administrative nature of self-executing agreements or provisions in the agreement had been taken over from the American system, and there were no decided cases. The real question was around the executive provisions on the nature of the contract between two governments. The Department felt that the provisions of the Extradition Act could give effect to the terms of the treaty, so that it was not necessary for anything further. The text of this Act referred to "self-executing" and "uitvoerbaar" and all agreements were similar.
The Chairperson noted that the treaties were ratified by Parliament because these treaties were applicable at international level. Domestic law would operate only within the country. No trade agreements were domesticated, although they did bind the citizens. The binding force on citizens was not the deciding point. Extradition treaties had always been adopted by resolution of both houses. She asked if the Extradition Act would also provide for other arrangements.
Mr van Heerden said that this was possible. Because a treaty was not necessarily a requirement for extradition, as it was able to be authorised by the Executive under urgent circumstances, a parliamentary procedure was not strictly speaking necessary.
The Chairperson suggested that pending the outcome of the cases, the Committee should proceed as it had done in the past, and if possible the documents in the cases should be provided to the Committee on a confidential basis.
Mr S Swart (ACDP) suggested that the Committee should consider whether the attacks on the parliamentary procedure had merit and whether the Committee should not alter its procedure.
The Chairperson agreed. She said that there were some differences in the way different matters were handled. Under the Rome Statute, it was clear that the provisions had a direct effect on the arrest of the citizens, and therefore the provisions had been incorporated into domestic law. However, a trade agreement would not be made into a domestic law. Some international law would be made into domestic law, so the two processes were meant to give parliament a quasi-oversight role over the international relations terrain, which essentially fell within the national executive authority. The types of treaties now under consideration did not have the full force and effect of domestic law, although it was of course valid at the international level.
Imam G Solomons (ANC) noted that two countries were now challenging the procedures, and he asked whether there were other challenges from other countries.
Mr van Heerden clarified that the countries of USA and Australia were not challenging the treaties, but applicants who did not wish to be extradited from these two countries, had raised the challenges.
He agreed that the Notices of Motion and the Minister of Justice's and Office of the President's Heads of Argument would be provided to the Committee.
Adv C Johnson (ANC) asked whether there were not certain principles set out in the Mohamed judgment that were applicable here, although there had been a distinction in that matter in that the release of the accused involved the possibility of the death penalty.
Mr van Heerden noted that to the best of his recollection, this was not an extradition matter alone.
Mr van Heerden noted that the procedures followed for these treaties were the same as past procedures. The treaties, having been negotiated, were referred to the State Law Advisors, to check for consistency with national laws, then to the Department of Foreign Affairs legal advisors to check for consistency with other international instruments, then were sent to the Office of the President, for scrutiny by those legal advisors. A Presidential Minute was issued on 26 February and the wording was that the treaties should be entered into, to be signed by the Minister of Foreign Affairs on behalf of the Government.
He reiterated that the two treaties were substantially similar as those before the Committee in 2004, relating to the Extradition and Mutual Legal Assistance with India. They were based on the UN model treaties.
Mutual Legal Assistance treaty
Mr van Heerden clarified that this Treaty was intended to provide the widest possible measure of mutual legal assistance in criminal matters. The International Cooperation in Criminal Matters Act in any event permitted assistance to be given by South Africa. The assistance could be in respect of investigations, or prosecution or proceedings in the requesting State. It would relate to both statutory and common law offences in South Africa. It would include taxation, customs duties, retirement schemes and foreign exchange. The principle of dual criminality was not included. Therefore if South Africa received a request for assistance in respect of a matter that was an offence only in Argentina, it would not be necessary for the matter to be criminalised also in South Africa, as would be the case if extradition were sought. These principles were set out in Articles 1 to 5 of the Treaty.
Article 6 was self explanatory, and set out what was included under "assistance".
Article 2 related to execution of requests, and Article 3 to the contents of request. Both were self-explanatory.
Under Article 4 requests could be postponed or refused in certain circumstances, which included any that would interfere with ongoing investigation or prosecution in the sovereign State, or where sovereignty, security or public interest were affected. There was a possibility to set conditions for assistance to be provided.
Article 5 dealt with location and identification by competent authorities of the requested State.
Article 6 related to service of documents.
Article 7, relating to provision of information, documents, records and objects was also self-explanatory, and stated that usually certified copies would suffice. They were accompanied by a form of authentication that would make them admissible.
Article 8 dealt with search and seizure.
Article 9 dealt with taking of evidence and obtaining statements. If a person was requested to testify and produce documents, the requested State was compelled to appear, if this was in accordance with domestic law. Recording of the proceedings was permitted, and video and technological evidence was allowed.
Article 10 provided that a person in prison in the requested state could be temporarily transferred to the requesting State, although that person must be returned on conclusion of the request.
Article 11 dealt with provision of evidence or assistance in investigations. However, a person could not be compelled to appear in the requesting State.
Article 12 dealt with safe conduct, and provided that a person transferred to the requesting State could not be compelled to answer to any other matters.
Article 13 noted that the requested state should endeavour to ascertain whether any proceeds of crime were within its jurisdiction. Where found, the requested State should take steps, if permitted to do so by its domestic law, to seize and destroy such proceeds, or allow them to accrue to the requesting State.
Article 14 dealt with restitution to the victims of crime, if permitted by domestic law.
The central laws were listed in Article 15. Article 16 dealt with confidentiality. Article 17 noted that no information or evidence could be used other than for what was stated in the request. Article 18 noted that documents would not require official authentication. Article 19 dealt with language.
Article 20 stated that the requested state was to meet the costs of executing the request for assistance, except for circumstances listed.
Article 21 stated that assistance under this Treaty did not prevent other parties from granting assistance through any other law.
Article 22 dealt with consultation.
Article 23 set out the entry into force, amendment and termination. The treaty was to enter into force on the day after the date of exchange of instruments of ratification. Provision was made for amendment and termination.
Ms Johnson asked if the Minister of Justice was the central authority, and if the discretion would lie with her to refuse assistance.
Mr van Heerden confirmed this was correct.
In reply to Mr Swart asking for the effective date, Mr van Heerden noted that it would come into effect on the day after the date on which ratification instruments were exchanged by the two States.
The Chairperson asked why the clause had been included in respect of mutual criminality. She asked if this was intended to circumvent the Extradition Act. Mutual Legal Assistance was part of investigations into crime. Many of the clauses included a provision that the procedures could be followed if they complied with the domestic law. She was worried about offences that would apply only in respect of one country.
Dr T Delport (DA) said that he had a similar concern. He confirmed that in order to extradite, the offence committed must be regarded as an offence in both countries.
Mr van Heerden replied that the idea with mutual legal assistance was to provide the widest possible assistance. For instance, if a tax was imposed in the Argentine Republic, but a similar tax did not apply in South Africa, this fact would not exclude assistance.
The Chairperson said that this treaty would often involve a request to see the assets that a person had in one country, for the purposes of ascertaining whether an offence had been committed.
Mr Swart pointed out that the safeguard was that search and seizure was carried out in respect of the host country. This procedure was often used in tax issues.
Mr van Heerden understood the concerns. However, this treaty was mostly intended to cater for investigation. If there was something more serious, then the Extradition Treaty would apply. The intention was that this treaty would be used as a first recourse in investigations.
Extradition Treaty with the Argentine Republic
Mr van Heerden noted that this was based on the UN Model Treaty. All previous treaties, such as that with India previously considered by this Committee, were based upon the same model, and were substantially similar.
Article 1 set out the obligation to extradite persons wanted for prosecution or for enforcement of a sentence for an extraditable offence (one that constituted an offence for both parties).
Article 2 set out what would be an extraditable offence. In summary, this would be something that was an offence in both countries, punishable by imprisonment for a period of more than one year, or where at least six months of a sentence must still be served. It was clarified that the category or terminology differences would not be relevant. Where extradition for tax offences was sought, it could not be refused if the laws of the requested State did not impose the same kind of tax. Sub-clause (6) dealt with South Africa's limited extra-territorial jurisdiction. The further sub-clauses dealt with the time when the offence was committed, and with multiple offences.
Article 3 set out the circumstances where extradition must be refused. These included political offences, except in listed circumstances where conduct was not regarded as a political offence. It also included the situation where there were grounds for believing that the person being extradited would be prosecuted or punished on humanitarian grounds, where he could be tortured, where the offence was time-barred, or where there was a military offence.
Article 4 specifically noted that South Africa would not extradite if the death penalty was likely to be carried out. The Argentine Republic did not currently have the death penalty but the clause was included as a safeguard measure.
Article 5 set out that extradition could not be refused on the grounds of nationality.
Article 6 set out the discretionary refusal of extradition where the offence was already subject to the jurisdiction of the requested State, where there had been a prior acquittal or conviction or serving of a sentence in the requested state, or on humanitarian grounds.
Article 7 set out the channels through which the extradition requests could be made, and listed the documents in support of the request. A separate sub-clause dealt with the documentation to support a request for extradition of a person who had been found guilty of an offence.
Article 8 set out the provisions on admissibility of documents.
Article 9 set out the translation requirements.
Article 10 provided that if the requested State did not believe the documentation provided was sufficient, it could request additional information.
Article 11 set out a procedure for simplified extradition if the person consented to extradition, by communicating consent to the competent authority of the requested State.
Article 12 set out the terms for provisional arrest. This was provided for in the Criminal Procedure Act, and in urgent cases the requesting State could apply through the International Criminal Police Organisation (Interpol). The documents in support of the provisional request were set out. Provisional arrest must be terminated if the requested state had not received the final request within 60 days, in terms of the agreement; however the domestic law in South Africa would of course require earlier release of the person being detained.
Article 13 dealt with concurrent requests from more than one State and the factors to be considered were set out.
Article 14 dealt with decision and surrender of the person. Reasons must be provided for complete or partial refusal of a request and copies of judicial decisions were to be provided. If the person was not removed from the requested State within 30 days he or she would have to be released and further requests for that offence could be refused.
Article 15 dealt with temporary or deferred surrender, where a person was already being prosecuted or serving a sentence in the requested State. Postponement of extradition proceedings acted to suspend the course of prescription in respect of the offence giving rise for the request for extradition.
Article 16 dealt with seizure and surrender of property according to the laws permitted by the requested State. The items were to be surrendered even if extradition could not be carried out once granted. Deferral was also possible if that property and evidence was required in the requested State.
Article 17 set out the Rule of Specialty. The person extradited could not be tried punished or detained in the requesting State other than for the offence contained in the request. There were some exceptions set out in sub-clause (3).
Article 18 dealt with transit of the person, which must be transmitted through diplomatic channels. This could include provision for the person surrendered to be held in custody during transit. Further sub-clauses dealt with authorisation and time frames.
Article 19 set out the responsibility for expenses. The requested State must bear the costs of proceedings, but the requesting State must bear responsibility for costs of translation and conveyance of the person being extradited.
Article 20 set out the representation. Article 21 set out the provisions for consultation between the countries. Article 22 set out that the treaty would enter into force the day after the date of confirmation of ratification by both States.
Adv Johnson noted that there was no statement as to what would constitute a "political offence" and she wondered if this was not to be strengthened. She further asked who would decide whether an offence fell in the "political" category.
Mr van Heerden noted that if it was a political offence in either country, there could be no extradition. He agreed that it was difficult to define what was meant by a political offence, and that the exceptions were easier to define than the rules.
Mr Delport asked if one would start with the premise that all offences were political offences.
the Chairperson clarified that this must be read in the context of the words preceding the setting out of the sub-articles.
The Chairperson noted that the Rome Statute dealt with genocide. Many countries had ratified it, but South Africa had ratified it both in the normal way, and then also included the crimes set out therein as crimes in the domestic law. Political offences was a vague category. Genocide would be murder, and therefore excluded. The Rome Statute included crimes against humanity and crimes of aggression.
Ms Johnson noted that when working of n the legislation around mercenaries, the Committee had decided to regard certain acts as political, unless they were of a liberation nature.
The Chairperson noted that the Rome Statue would operate on its own and surrenders of individuals were made to the court of justice at the Hague. The requests would be directed through the United Nations.
Mr van Heerden noted that this Extradition Act did not make provision for extradition to tribunals, but a new Act would include this.
The Chairperson thought that this had already been amended by a Judicial Matters Amendment Act, and she asked that Mr van Heerden check with Mr Lawrence Basset as to the current position.
Imam Solomons asked for, and received confirmation that the full reference to the Ministry of Foreign Affairs of the Argentine Republic was correct.
The Chairperson asked the Parliamentary Liaison Officer of the Department to produce a pro forma resolution, and the Committee would vote on it at a later stage.
The Chairperson announced that the Committee would next consider the Department of Justice's responses to the submissions heard at the Criminal Law (Sentencing) Amendment Bill public hearings. There would be a joint briefing on the Constitution Thirteenth Amendment Bill to this Committee and the Select Committee on Wednesday 8 August.
The meeting was adjourned.