provisional arrest requests

Author: Nyman Gibson Miralis

Subject: Extradition and Interpol Red Notices

Keywords: provisional arrest request, treaty, Attorney-General’s Department, Extradition Act

 

The International Crime Cooperation Division of the Australian Government Attorney-General’s Department provides information on provisional arrest requests in relation to extradition, and details the relationship with Interpol Red Notices. We examine the advice provided.

 

Provisional arrest requests and extradition

A provisional arrest request is an urgent request to arrest a person for the purposes of extradition, often issued when it is believed that the fugitive may flee the country and an extradition request is still pending.

 

What are the requirements for Australia to make a provisional arrest request to a foreign country?

Each extradition treaty has different requirements for a provisional arrest request to be made, specifying the documentation required and the method of submission. The Attorney-General’s Department prepares a request for a provisional arrest and sends it to the foreign country in accordance with these specifications. Generally, the required documentation includes:

  • a list of the offences for which the person’s arrest is sought
  • a statement of the acts or omissions that constitute the offences(s)
  • a copy of the legal provision(s) setting out the offence(s) and the penalty for the offence(s)
  • a copy of the warrant issued in Australia for the person’s arrest
  • a statement that if the person is provisionally arrested, Australia will seek the person’s extradition within the period required by that country’s law
  • a physical description of the person, including his/her nationality, his/her photograph and his/her fingerprints, if available, and
  • a statement of why the request is urgent.

 

To which countries can Australia make a provisional arrest request?

Australia can make a provisional arrest request to any country, regardless of whether there is a treaty in place. Treaty partners are obligated to consider the request, while non-treaty partners will follow local laws to determine whether to arrest the person as per Australia’s provisional arrest request.

 

From which countries can Australia accept a provisional arrest request?

Australia can only accept a provisional arrest request from a foreign country which is defined as an ‘extradition country’ under the Extradition Act.  After receiving the provisional arrest request, the Attorney General’s Department decides whether to apply for an extradition arrest warrant.

 

How does the Australian Government proceed after receiving a provisional arrest request?

After receiving the provisional arrest request, the Attorney General’s Department decides whether to apply for an extradition arrest warrant.

Before issuing a warrant for the arrest of a person, a magistrate must be satisfied that:

  • an arrest warrant for the person exists in the foreign country or the person has been convicted of an offence against the law of the foreign country
  • the offence to which the warrant or conviction relates is an ‘extradition offence’ (meaning an offence that carries a penalty of at least 12 months imprisonment; however, some regulations specify a minimum penalty of at least two years imprisonment), and
  • the person is believed to be outside the foreign country making the provisional arrest request.

If the extradition arrest warrant is issued by the magistrate, Australian police execute the warrant.

 

What happens after the person is arrested?

Following the arrest:

  • the person is brought before a magistrate and remanded in custody or released on bail if there are ‘special circumstances’ that justify the grant of bail.
  • the foreign country which made the provisional arrest request has a limited time to make a formal extradition request to Australia (usually 45 or 60 days from the day on which the person was arrested)
  • if an extradition request is not received within that time, the person can apply to a magistrate to be released from custody

 

What is the relationship between provisional arrest requests and Interpol Red Notices?

An Interpol Red Notice is issued in order to seek the location and arrest of a person wanted by a legal jurisdiction or an international tribunal with a view to his/her extradition.

For the purposes of extradition, Australia does not arrest a person on the basis of receiving an Interpol Red Notice.  Generally, Australian law enforcement officers can only arrest a person for an offence against Australian law. Their arrest powers do not enable them to act on an Interpol Red Notice.  The Extradition Act sets out procedures for obtaining an extradition arrest warrant from an Australian magistrate to arrest a person at the request of a foreign country with which Australia has an extradition relationship.

Australia will only arrest a person for the purpose of extradition where another country makes a ‘provisional arrest request’ or where Australia has decided to accept a formal extradition request and has arranged for a magistrate to issue an arrest warrant. Similar procedures are followed in other countries, including the United Kingdom.

 

Nyman Gibson Miralis have expertise in INTERPOL-related criminal investigations, including having Red Notices successfully removed.  If you require assistance, contact one of our expert criminal defence lawyers