2. Czech extradition treaty

2.1The proposed treaty action is Australia’s ratification of the Treaty on Extradition between Australia and the Czech Republic (Extradition Treaty or the Treaty).[1]

2.2The National Interest Analysis (NIA) notes that ‘the Treaty is a demonstration of the importance of Australia's law enforcement cooperation relationship with the Czech Republic, and a practical strengthening of those ties’.[2] The NIA notes that a key reason for the proposed treaty action include efforts to combat the manufacture and transhipment of synthetic drugs and serious cybercrime.[3]

Background

Extradition

2.3The legislation which governs Australia’s extradition regime is the Extradition Act1988 (Extradition Act).[4] The requirements set out in the Extradition Act that must be met before Australia can make or accept an extradition request are supplemented by multilateral and bilateral treaties.[5]

2.4Australia currently has extradition treaties with 39 other countries and multilateral agreements such as the United Nations Convention against Corruption.[6]

The Czech Republic

2.5Australia and the Czech Republic established diplomatic ties in 1993 and according to DFAT are ‘like-minded countries’ that ‘cooperate on a range of international issues bilaterally, with the European Union and in multilateral fora.’[7] Australia is also engaged in economic diplomacy with the Czech Republic with two-way goods and services trade between the two countries valued at $1.595 billion in 2021.[8]

Obligations

2.6The preamble to the Treaty notes that the overarching ambition is that Australia and the Czech Republic act ‘[d]esiring to deepen and facilitate their legal relations and wishing to contribute to the suppression of crime’.[9]

2.7The proposed Extradition Treaty obliges Australia and the Czech Republic to consider the extradition of ‘any persons against whom the competent authorities of the Requesting State [hereafter “requesting country”] are prosecuting for an extraditable offence or who are wanted by the said authorities for the imposition or carrying out of a sentence for an extraditable offence.’[10]

2.8According to Article 2 of the proposed treaty, an extraditable offence is:

• an offence that is punishable under the laws of both countries[11]
• the punishment must be for a maximum period of at least one year or a severe penalty and[12]
• where the person is wanted for the enforcement of a sentence of imprisonment, the extradition will be granted only if six months of the penalty remains.[13]
  9. Article 3 provides for mandatory exceptions to extradition. These include:
• if the offence is regarded by the requested country as a political offence
• if there are grounds for believing that the request has been made to prosecute or punish a person for their race, language, ethnic origin, gender, religion, nationality, political opinion, or other status
• if the offence is regarded by the requested country as an offence under military law but not ordinary criminal law
• if the person has been acquitted, pardoned, granted an amnesty or had the penalty imposed remitted
• if the offence carries the death penalty unless the death penalty will not be imposed or, if imposed, will not be carried out; and
• if the person would be subjected to torture or other cruel, inhuman or degrading treatment or punishment.[14]
  10. Article 4 of the Extradition Treaty proposes that nationality can’t be used as a basis for evading justice.[15] If an extradition is refused on the basis of nationality, the requested country shall at the request of the requesting country, commence proceedings against the person if it is appropriate to do so.[16]
  11. Article 5 sets out discretionary exceptions to extradition. These include:
• if the offence was committed in the territory of the requested country
• if a prosecution against the person whose extradition is requested is pending in the requested country and
• if the requested country considers that in the circumstances of the case the extradition of the person would be unjust or oppressive, taking into consideration the person’s health, age, or other personal circumstances.[17]
  12. Where Australia is the requested country, section 22(3)(f) of the Extradition Act provides that a person can only be surrendered if the Attorney-General at his or her discretion, considers that the person should be surrendered for the extradition offence.[18]
  13. The NIA explains that the mandatory and discretionary grounds of refusal for an extradition request ‘align with Australia’s domestic legal framework and Australia’s international legal obligations, including international human rights obligations.’[19]

Extradition process

2.14Article 6 of the Extradition Treaty provides for communications and language.[20] The NIA states that Australia will continue to follow its standard practice of submitting requests through the diplomatic channel.[21]

2.15Article 7 and 8 outlines the documentation needed to make an extradition request and allows for the requested country to ask for additional information.[22]

2.16In urgent cases a requesting country may apply for the provisional arrest of a person whose extradition will be requested at a later stage.[23] The NIA explains that a provisional arrest warrant may be needed when, for example, there is a risk that the individual may abscond or flee before an extradition request can be transmitted.[24]

2.17If a request for extradition has been received from two countries, Article 10 outlines the circumstances to be considered by the requested country. These include the seriousness of the offences, the nationality of the person and the possibility of a subsequent extradition to another country.[25]

2.18Article 16 of the Treaty outlines the rule of speciality.[26] This provides that the individual who is extradited cannot be detained, tried or subjected to any other restriction in the requesting country for any offence committed before he or she was surrendered other than the offence for which extradition was granted, or any other extraditable offence on the same facts punishable by the same or lesser penalty than the original offence for which extradition was granted or any other extraditable offence to which the requested country consents.[27] The NIA explains that the speciality rule ‘is intended to strengthen the integrity of the extradition process between States and the broader integrity of the Requesting State’s criminal justice system.’[28]

2.19Article 17 addresses extradition to a third country.[29] The NIA says that this provision is intended to ensure that countries do not extradite individuals ‘with the ulterior motive of further extraditing them on to a third country’.[30]

2.20The NIA notes that the Treaty is silent as to amendment of the Treaty.[31] The Government then notes that when there is not an express amendment provision in a treaty as to amendment, Article 39 of the Vienna Convention on the Law of Treaties applies, allowing amendment by agreement between Australia and the Czech Republic.[32] The NIA further notes that amendment to the Treaty would be a treaty action and therefore would be subject to Australia’s domestic treaty requirements.[33]

2.21The Treaty contains further provisions relating to notifications, surrender and transit, however no issues were raised in evidence relating to these provisions.

Costs

2.22Article 19 provides for expenses.[34] The NIA outlines that as the Czech Republic is already an extradition country, there are no anticipated cost implications associated with the Treaty.[35] The Government further states that the Office of Best Practice Regulation has been consulted and confirmed that a Regulation Impact Statement is not required.[36]

2.23The NIA notes that the State and Territory Governments have been consulted with respect to this Treaty through the Commonwealth-State/Territory Standing Committee on Treaties (SCOT).[37] Further, information on the negotiation of the Treaty was provided to State and Territory representatives through the biannual SCOT meetings.[38] The NIA outlines that no requests for further information or comments on the Treaty have been received.[39]

Key issues

Czech Republic

2.24The AGD, in response to questions on the process for extradition in the Czech Republic, noted that it was ‘broadly similar to Australia’s domestic regime’.[40] The AGD explained that a key difference between the process in the two countries ‘is that the Czech Republic can consider extradition requests based on formal undertakings of reciprocity, whereas Australia requires a country to be declared an “extradition country” (or otherwise meet the definition of “extradition country” in section 5 of the Extradition Act 1988).’[41]

Low number of extraditions and cost

2.25The low number of extraditions more generally was raised by the Committee at the public hearing as being a potential concern. This point was addressed by the AGD, explaining that ‘[a] lot goes into making extradition requests to other countries; it is an extremely resource-intensive process. It required certainty about where a person is, and it requires a big investment of legal and operational effort.’[42] In terms of the specific costs of establishing an extradition proceeding, the AGD explained that the cost varies for every matter.[43]

2.26In terms of specific numbers, the AGD has said that the number of extradition requests made by and to Australia varied from year to year over the ten-year period from 2012-13 to 2021-22.[44] They said that the number of requests made to Australia has been ‘reasonably stable since 2018-19’ while there is ‘no clear trend demonstrated’ in the number of requests received.[45] In this ten year period, the AGD said that Australia surrendered the most people to the United States (US), United Kingdom (UK) and Ireland.[46] The countries that surrendered the most people to Australia in this period were the UK, US, and Thailand.[47]

Death penalty provisions

2.27There was discussion about the death penalty and how this is incorporated into the Treaty at the public hearing. The AGD confirmed that the Czech Republic has abolished the death penalty, therefore there is no death penalty issue in this situation.[48] The AGD provided further evidence to the Committee that the Czech Republic is a party to the International Covenant on Civil and Political Rights (ICCPR) and the Second Optional Protocol to the ICCPR Aiming at the Abolition of the Death Penalty.[49]

2.28In response to the inclusion of the standard wording relating to the death penalty in the Treaty, the AGD provided evidence that article 3(e) of the Extradition Treaty contains a mandatory ground of refusal relating to the death penalty.[50]

2.29The NIA explains that the Treaty’s refusal ground relating to the death penalty reflects the domestic legal requirements in Australia as outlined in the Extradition Act.[51] This provides that the Attorney-General can only surrender a person to another country for an offence punishable by death if the requesting country provides an undertaking that the person will not be tried for the office or if they will be tried, that that the death penalty will not be imposed or if imposed not carried out.[52] The NIA explains that this issue is highly unlikely to arise in situations of extradition between Australia and the Czech Republic as there is no death penalty in either country.[53]

Committee comment

2.30The Committee notes that ratification of the Extradition Treaty would be a further development of Australia’s work in addressing international crime, and that the Treaty will affirm and improve Australia’s relationship with the Czech Republic, particularly through cooperation on crime.

2.31Australia and the Czech Republic established diplomatic ties in 1993 and cooperate on a range of international issues bilaterally and multilaterally. This Treaty will further develop this existing cooperation. The Committee notes that the Treaty will provide clarity and certainty in relation to extradition between the two countries, which will contribute to holding those who have committed crimes accountable.

2.32As noted earlier, Australia currently has extradition treaties with 39 other countries and multilateral agreements such as the United Nations Convention against Corruption. This Extradition Treaty will add to these existing agreements.

2.33The Committee heard from stakeholders as part of the Inquiry and notes support for ratification from government. At the public hearing, the Committee explored key issues relating to the Extradition Treaty, including the grounds for extradition refusal, the low number and cost of extraditions and death penalty provisions. The Committee considered that these issues have been addressed adequately by the Inquiry.

2.34The Committee has formed the view that it is in Australia’s national interest to proceed with ratification of the Extradition Treaty.

2.35The Committee supports the Treaty on Extradition between Australia and the Czech Republic and recommends that binding treaty action be taken.

Footnotes

[1]Treaty on Extradition between Australia and the Czech Republic (Canberra, 17 February 2022) [2023] ATNIF 5, hereafter Extradition Treaty or the Treaty.

[2]National Interest Analysis [2023] ATNIA 5 with attachment on consultation, Treaty on Extradition between

Australia and the Czech Republic (Canberra, 17 February 2022) [2023] ATNIF 5, hereafter ‘NIA’, page 3.

[3]NIA, page 3.

[4]Attorney-General’s Department (AGD), ‘Extradition’, www.ag.gov.au/international-relations/international-crime-cooperation-arrangements/extradition, viewed 5 April 2023, hereafter AGD, ‘Extradition’.

[5]AGD, ‘Extradition’.

[6]NIA, page 3.

[7]DFAT, ‘Czech Republic Country Brief’, www.dfat.gov.au/geo/czech-republic/czech-republic-country-brief#:~:text=Australia%20and%20the%20Czech%20Republic,Union%20and%20in%20multilateral%20fora., viewed 6 April 2023, hereafter DFAT, ‘Czech Republic Country Brief’.

[8]DFAT, ‘Czech Republic Country Brief’.

[9]Extradition Treaty, preamble.

[10]Extradition Treaty, article 1; Note that the Requesting State [requesting country] is the state that makes the request for extradition and the Requested State [requested country] is the state that receives the request for extradition.

[11]Extradition Treaty, article 2(1).

[12]Extradition Treaty, article 2(1). This reflects section 5 of the Extradition Act 1988 (Cth) (Extradition Act) and the definition of ‘extradition offence’ for both countries other than Australia (a) and also for Australia (b) being ‘for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months’.

[13]Extradition Treaty, article 2(2).

[14]Extradition Treaty, article 3.

[15]NIA, page 6.

[16]NIA, page 6.

[17]Extradition Treaty, article 5.

[18]NIA, page 6; Extradition Act, paragraph 22(3)(f).

[19]NIA, page 5.

[20]Extradition Treaty, article 6.

[21]NIA, page 7.

[22]Extradition Treaty, articles 7 & 8.

[23]Extradition Treaty, article 9.

[24]NIA, page 8.

[25]Extradition Treaty, article 10(2).

[26]Extradition Treaty, article 16.

[27]Extradition Treaty, article 16(1).

[28]NIA, page 7.

[29]Extradition Treaty, article 17.

[30]NIA, page 7.

[31]NIA, page 10.

[32]NIA, page 10.

[33]NIA, page 10.

[34]Extradition Treaty, article 19.

[35]NIA, page 9.

[36]NIA, page 10.

[37]NIA, page 11.

[38]NIA, page 11.

[39]NIA, page 11.

[40]AGD, Question on Notice, www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/ExtraditionCzech/Submissions, viewed 18 May 2023, hereafter AGD, Question on Notice.

[41]AGD, Question on Notice.

[42]Ms Tara Inverarity, Committee Hansard, Canberra, 8 May 2023, page 6.

[43]Ms Tara Inverarity, Committee Hansard, Canberra, 8 May 2023, page 6.

[44]AGD, Question on Notice.

[45]AGD, Question on Notice.

[46]AGD, Question on Notice.

[47]AGD, Question on Notice.

[48]Ms Tara Inverarity, Committee Hansard, Canberra, 8 May 2023, page 3.

[49]AGD, Question on Notice.

[50]AGD, Question on Notice.

[51]NIA, page 6; Extradition Act, paragraph 22(3)(c).

[52]NIA, page 6; Extradition Act, paragraph 22(3)(c).

[53]NIA, page 6.