Fugitive Offenders (Netherlands) Order
(Enacting provision omitted—E.R. 1 of 2017)
[20 June 1997] L.N. 346 of 1997
(Format changes—E.R. 1 of 2017)
(Omitted as spent—E.R. 1 of 2017)
In relation to the arrangements for the surrender of fugitive offenders the terms of which are recited in Schedules 1 and 2, it is directed that the procedures in the Ordinance apply as between Hong Kong and the Kingdom of the Netherlands subject to the limitations, restrictions, exceptions and qualifications contained in the terms of the arrangements.
Consequential Amendments
Extradition (Netherlands) Order 1899
The Extradition (Netherlands) Order 1899 (S.I. 1899/83 U.K.) is amended by adding at the end—
“Provided also that the said Acts shall cease to apply to Hong Kong.”.
The Government of the Kingdom of the Netherlands and the Government of Hong Kong, having been duly authorised to conclude this Agreement by the sovereign government which is responsible for its foreign affairs,
Desiring to make provision for the reciprocal surrender of fugitive offenders;
Recalling the rights conferred on every person involved in criminal proceedings in accordance with generally recognised standards;
Have agreed as follows:
The Parties agree to surrender to each other, subject to the provisions laid down in this Agreement, any person who is found in the jurisdiction of the requested Party and who is wanted by the requesting Party for prosecution or for the imposition or enforcement of a sentence in respect of an offence under Article 2 which falls under the jurisdiction of the latter Party. Such persons shall, for the purposes of this Agreement, be referred to as “fugitive offenders”.
Surrender of fugitive offenders shall be granted for an offence coming within any of the following descriptions of offences, including an attempt or participation therein or incitement thereto, insofar as the offence is, according to the laws of both Parties, punishable by imprisonment or other form of detention for more than one year, or by a more severe penalty:
murder; manslaughter
aiding, abetting, counselling or procuring suicide
maliciously wounding; assault occasioning grievous or actual bodily harm
rape
indecent assault
gross indecency with a child, a mental defective or an unconscious person
kidnapping; abduction; false imprisonment; dealing or trafficking in slaves or other persons; taking a hostage
criminal intimidation
offences against the law relating to narcotic drugs and psychotropic substances
obtaining property or pecuniary advantage by deception; theft; robbery; burglary; embezzlement; blackmail; extortion; unlawful handling or receiving of property; false accounting; any other offence in respect of property or fiscal matters involving fraud
offences against bankruptcy law
offences against the law relating to companies
any offence relating to counterfeiting; any offence against the law relating to forgery or uttering what is forged
an offence against the law relating to bribery
perjury and subornation of perjury
offences relating to the perversion or obstruction of the course of justice
criminal damage, including arson
an offence against the law relating to firearms
an offence against the law relating to explosives
an offence against the law relating to environmental pollution
mutiny or any mutinous act committed on board a vessel at sea
piracy, involving ships or aircraft, according to international law
unlawful seizure or exercise of control of an aircraft
genocide or direct and public incitement to commit genocide
facilitating or permitting the escape of a person from custody
smuggling
arranging, for financial gain, the illegal entry of persons into the jurisdiction of the requesting Party
offences for which fugitive offenders may be surrendered under international conventions binding on the Parties, and offences created as a result of decisions of international organisations which are binding on the Parties
conspiracy to commit, or acts preparatory to the commission of, any offence for which surrender may be granted under this Agreement
any other offences for which surrender may be granted in accordance with the laws of both Parties.
Where surrender of a fugitive offender is requested for the purpose of carrying out a sentence, a further requirement shall be that, in the case of a period of imprisonment or detention, at least six months remain to be served.
In determining whether an offence is an offence punishable under the laws of both Parties, it shall not matter whether, under the laws of the Parties, the constituent elements of the offence differ, it being understood that the totality of the acts or omissions as presented by the requesting Party shall be taken into account.
Where the surrender of a fugitive offender is requested for the purpose of carrying out a sentence the requested Party may refuse to surrender him if it appears that the conviction was obtained in his absence, unless he has the opportunity to have his case retried in his presence, in which case he shall be considered as an accused person under this Agreement.
The Government of the Kingdom of the Netherlands reserves the right to refuse the surrender of its nationals. The Government of Hong Kong reserves the right to refuse the surrender of nationals of the State whose Government is responsible for its foreign affairs.
If the offence for which surrender of a fugitive offender is requested under this Agreement is punishable according to the law of the requesting Party with the death penalty, and if in respect of such an offence the death penalty is not provided for by the law of the requested Party or is not normally carried out, surrender may be refused unless the requesting Party gives such assurances as the requested Party considers sufficient that this penalty will not be imposed or, if imposed, will not be carried out.
The requested Party may refuse to surrender a fugitive offender for an offence which is regarded by its law as having been committed within the jurisdiction of its courts.
A fugitive offender shall not be surrendered if he is or has become, for any reason provided for under the law of either Party, immune from prosecution or punishment for the offence for which his surrender has been requested.
A fugitive offender shall not be surrendered if the requested Party considers that the offence of which that person is accused or was convicted is an offence of a political character.
A fugitive offender shall not be surrendered if the requested Party has substantial grounds for believing:
that the request for his return (though purporting to be made on account of an offence for which surrender may be granted) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or
that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.
The surrender of a fugitive offender may also be refused if the requested Party considers that:
the offence is, having regard to all the circumstances, not sufficiently serious to warrant the surrender; or
there has been excessive delay, for reasons which cannot be imputed to the fugitive offender, in bringing charges against him, in bringing his case to trial or in making him serve his sentence or the remainder thereof; or
the surrender of the fugitive offender may place that Party in breach of its obligations under international treaties; or
in the circumstances of the case, the surrender of the fugitive offender would be incompatible with humanitarian considerations in view of age, health or other personal circumstances.
Requests for the surrender of a fugitive offender shall be made by and to the appropriate authorities of the Parties as may be notified between them from time to time.
The requests shall be accompanied by:
as accurate a description as possible of the fugitive offender, together with any other information which would help to establish his identity, nationality and, if known, his whereabouts;
a statement and particulars of the offence for which the surrender is requested;
the text of the legal provisions, if any, creating the offence, a statement of the punishment which can be imposed therefor and a specification of any time limit that is imposed on the institution of proceedings or on the enforcement of any sentence in respect of that offence.
If the request relates to an accused person, it shall also be accompanied by a copy of the warrant of arrest issued by a judge, magistrate or other competent authority of the requesting Party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed within the jurisdiction of the requested Party.
If the request relates to a person already convicted or sentenced, it shall also be accompanied by:
a copy of the certificate of the conviction or sentence; and
if the person was convicted but not sentenced, a statement to that effect by the appropriate court and a copy of the warrant of arrest; or
if the person was sentenced, a statement that the sentence is enforceable and indicating how much of the sentence has still to be served.
If the information communicated by the requesting Party is found to be insufficient to allow the requested Party to make a decision in pursuance of this Agreement, the latter Party may request the necessary supplementary information and may fix a time-limit for receipt thereof.
The requesting Party shall provide a translation of all documents relating to the request into a language acceptable to the requested Party. This provision shall not affect the admissibility of an untranslated document furnished by the requesting Party.
In urgent cases the person sought may, in accordance with the law of the requested Party, be provisionally arrested on the application of the competent authorities of the requesting Party.
The application shall contain a description of the person sought, an indication of intention to request his surrender, a statement of the existence and terms of a warrant of arrest or a judgment of conviction against the person, a statement of the maximum punishment that can be imposed or the punishment that has been imposed for the offence, and a statement of the acts or omissions (including time and place) alleged to constitute the offence.
The application for provisional arrest shall be in writing and may be forwarded through the same channels as a request for surrender or through the International Criminal Police Organisation (Interpol).
The provisional arrest of the person sought shall be terminated upon the expiration of sixty days from the date of his arrest if the request for his surrender supported by the documents referred to in paragraphs (2) to (4) of Article 8, has not been received. This provision shall not prevent his re-arrest or surrender if the request for his surrender is received subsequently.
If the surrender of a fugitive offender is requested concurrently by one of the Parties and a State or States with which the Kingdom of the Netherlands or Hong Kong, whichever is being requested, has arrangements for the surrender of fugitive offenders, the requested Party shall make its decision having regard to all the circumstances, including the relevant provisions of such arrangements, the place of commission of the offences, their relative seriousness, the respective dates of the requests, the nationality of the fugitive offender and the possibility of subsequent surrender to another State.
Documents accompanying a request for surrender shall be admitted in evidence if duly authenticated. A document is duly authenticated if it purports to be:
signed or certified by a judge, magistrate or an official of the requesting Party; and
sealed with the official seal of the competent authority of the requesting Party.
The requested Party shall review for legal sufficiency documentation in support of a request for the surrender of a fugitive offender prior to submission to its judicial authorities and shall deal with the request of the requesting Party before such authorities.
The requested Party shall bear the expenses of the arrest of the person whose surrender is requested, of the maintenance in custody of the person until he is handed over to a person nominated by the requesting Party and in relation to any legal proceedings before the judicial authorities of the requested Party arising out of the request for surrender.
The requesting Party shall bear the expenses incurred in conveying the person from the jurisdiction of the requested Party.
Requests which do not satisfy the conditions laid down in this Agreement shall be refused. In particular, a fugitive offender who is wanted for prosecution shall not be surrendered unless the evidence is found sufficient according to the law of the requested Party to justify his committal for trial if the offence of which he is accused had been committed in the jurisdiction of the requested Party.
The requested Party shall promptly communicate its decision on the request for surrender to the requesting Party. Reasons shall be given for any complete or partial refusal of the request.
If the fugitive offender is to be surrendered, he shall be taken by the authorities of the requested Party on a date agreed with the requesting Party to a mutually convenient place of departure within the jurisdiction of the requested Party. The requested Party shall inform the requesting Party of the length of time for which the fugitive offender was detained in connection with the request for his surrender.
If the fugitive offender is being proceeded against or under punishment in the jurisdiction of the requested Party for any other offence, his surrender shall be deferred until the conclusion of the proceedings and the execution of any punishment awarded to him.
Subject to the provisions of paragraph (5) of this Article, if the requesting Party does not take custody of the person on the date agreed by the two Parties, he shall be released on the expiry of thirty days thereafter or such lesser period as is provided by the law of the requested Party. The requested Party may subsequently refuse to surrender him for the same offence.
If circumstances beyond its control prevent a Party from surrendering or taking over the person as agreed, it shall notify the other Party. In that case, the two Parties shall agree a new date for the surrender, and the provisions of paragraph (4) of this Article shall apply.
When a request for surrender of a fugitive offender is granted the requested Party shall, at the request of the requesting Party and so far as its law allows, hand over to the requesting Party all articles, including sums of money, found within its jurisdiction:
which may serve as proof of the offences; or
which have been acquired by the fugitive offender as a result of the offence and are in his possession or discovered subsequently.
If the articles in question are liable to seizure or confiscation within the jurisdiction of the requested Party, it may, in connection with pending proceedings, retain them or hand them over on condition they are returned without charge. This provision shall not prejudice the rights of the requested Party or of any person other than the fugitive offender.
A fugitive offender who has been surrendered shall not be proceeded against, sentenced, detained or subjected to any other restriction of personal liberty by the requesting Party for any offence committed prior to his surrender other than:
the offence or offences in respect of which his surrender was granted;
an offence, however described, based on substantially the same facts in respect of which his surrender was granted, provided such offence is one for which he could be surrendered under this Agreement, and provided further such offence is punishable by a penalty no more severe than the penalty for the offence for which he was surrendered;
any other offence for which surrender may be granted under this Agreement in respect of which the requested Party may consent to his being dealt with;
unless he has first had an opportunity to exercise his right to leave the jurisdiction of the Party to which he has been surrendered and he has not done so within forty days or has voluntarily returned to that jurisdiction having left it.
A fugitive offender who has been surrendered shall not be re-surrendered to another jurisdiction for an offence committed prior to his surrender unless:
the requested Party consents to such re-surrender; or
he has first had an opportunity to exercise his right to leave the jurisdiction of the Party to which he has been surrendered and has not done so within forty days or has voluntarily returned to that jurisdiction having left it.
A Party whose consent is requested under paragraphs (1)(c) or (2)(a) of this Article may require the submission of any document or statement refered to in Article 8, and any statement made by the surrendered person on the matter.
With respect to the Kingdom of the Netherlands this Agreement shall apply to the part of the Kingdom in Europe only.
This Agreement shall enter into force thirty days after the date on which the Parties have notified each other in writing that their respective requirements for the entry into force of this Agreement have been complied with.
Each of the Parties may suspend or terminate the Agreement at any time by giving notice to the other through the same channels as a request for the surrender of a fugitive offender. Suspension shall take effect on receipt of the relevant notice. In the case of termination the Agreement shall cease to have effect six months after the receipt of notice to terminate.
In witness whereof the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
Done at Hong Kong this second day of November One thousand nine hundred and ninety two in the Chinese, Dutch and English languages, each text being equally authentic.
Note:# The Agreement between the Government of the Kingdom of the Netherlands and the Government of Hong Kong for the Surrender of Fugitive Offenders was done in the Chinese, English and Dutch languages, each text being equally authentic. The Dutch text of the Agreement is available for inspection at the Security Bureau of the Government of the HKSAR. (L.N. 38 of 2016)The Government of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong Special Administrative Region”) having been authorised by the Central People’s Government of the People’s Republic of China to conclude this Protocol with the Government of the Kingdom of the Netherlands,
and
the Government of the Kingdom of the Netherlands (hereinafter referred to as “the Parties”),
Recalling the Agreement between the Government of Hong Kong and the Government of the Kingdom of the Netherlands for the surrender of fugitive offenders, done at Hong Kong on 2 November 1992 (hereinafter referred to as “the Agreement”),
Recognizing that the People’s Republic of China resumed the exercise of sovereignty over Hong Kong with effect from 1 July 1997 and in accordance with its constitution has on that date established the Hong Kong Special Administrative Region of the People’s Republic of China,
Noting that the Government of the People’s Republic of China has confirmed the continued application of the Agreement to the Hong Kong Special Administrative Region and its recognition as an agreement entered into between the Government of the Hong Kong Special Administrative Region under the authorisation of the Government of the People’s Republic of China and the Government of the Kingdom of the Netherlands,
Desiring to amend the Agreement,
Have agreed as follows:
This Protocol amends the Agreement and the Agreement and this Protocol shall be read and interpreted together as one single instrument.
The text of Article 17 of the Agreement shall be replaced by the following:
“With respect to the Kingdom of the Netherlands this Agreement shall apply to the European part of the Netherlands and to the Caribbean part of the Netherlands (the islands of Bonaire, Sint Eustatius and Saba).”
(1) This Protocol shall enter into force thirty days after the date on which the Government of the Hong Kong Special Administrative Region has notified the Government of the Kingdom of the Netherlands in writing that the requirements for the entry into force of the Protocol have been complied with.
(2) This Protocol shall remain in force so long as the Agreement remains in force.
IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments have signed this Protocol.
DONE in duplicate at Hong Kong this Seventeenth day of February, Two Thousand and Fifteen in the Chinese, Dutch and English languages, each text being equally authentic.
Note:# The Protocol between the Government of the Hong Kong Special Administrative Region of the People’s Republic of China and the Government of the Kingdom of the Netherlands Amending the Agreement for the Surrender of Fugitive Offenders, Done at Hong Kong on 2 November 1992 was done in the Chinese, English and Dutch languages, each text being equally authentic. The Dutch text of the Protocol is available for inspection at the Security Bureau of the Government of the HKSAR.(Schedule 2 added L.N. 38 of 2016)