Extradition Act
2008 Revised Edition
CAP. 7.24
EXTRADITION ACT
Extradition Act CAP. 7.24 Arrangement of Sections
2008 Revised Edition
Page 3
EXTRADITION ACT
Arrangement of Sections
Section
PART 1 - PRELIMINARY 7
1 Short title................................................................................................................ 7
2 Commencement ..................................................................................................... 7
3 Purpose................................................................................................................... 7
4 Interpretation.......................................................................................................... 7
5 Extradition offence .............................................................................................. 10
6 Extradition objection............................................................................................ 10
PART 2 - EXTRADITION FROM TUVALU—GENERAL PROVISIONS 11
DIVISION 1—GENERAL 11
7 Application of Part 2............................................................................................ 11
8 Issue of provisional arrest warrant ....................................................................... 11
9 Arrest and remand on provisional arrest warrant................................................. 12
10 Release from remand ........................................................................................... 13
11 Authority to proceed ............................................................................................ 13
12 Arrest and remand on authority to proceed.......................................................... 14
13 Consent to surrender ............................................................................................ 14
14 Extradition proceedings ....................................................................................... 15
15 Conduct of extradition proceedings ..................................................................... 16
16 Determination whether person may be surrendered ............................................ 16
17 Supporting documents ......................................................................................... 17
18 Review of magistrate’s decision by High Court .................................................. 18
19 Surrender determination by Prime Minister......................................................... 19
20 Surrender warrant ................................................................................................ 20
21 Temporary surrender warrant .............................................................................. 21
22 Execution of surrender warrant............................................................................ 22
Arrangement of Sections CAP. 7.24 Extradition Act
2008 Revised Edition Page 4
PART 3 - EXTRADITION FROM TUVALU TO COMMONWEALTH
COUNTRIES 23
23 Procedure applying to extradition to Commonwealth countries ..........................23
24 Evidentiary requirements for Commonwealth countries......................................23
25 The record of the case ..........................................................................................23
26 Commonwealth countries for purpose of Constitution of Tuvalu........................24
PART 4 - EXTRADITION FROM TUVALU TO PACIFIC ISLAND
COUNTRIES—BACKING OF WARRANTS PROCEDURE 24
27 Procedure applying to extradition to Pacific Island countries..............................24
28 Provisional arrest warrant.....................................................................................24
29 Arrest and remand on provisional arrest warrant .................................................25
30 Endorsement of warrant .......................................................................................25
31 Arrest and remand on endorsed warrant...............................................................25
32 Release from remand............................................................................................26
33 Extradition proceedings........................................................................................27
34 Conduct of extradition proceedings .....................................................................27
35 Consent to surrender.............................................................................................27
36 Determination whether person should be surrendered .........................................28
37 Review of magistrate’s decision...........................................................................29
38 Surrender warrant .................................................................................................29
39 Temporary surrender warrant...............................................................................30
40 Execution of surrender warrant ............................................................................31
PART 5 - EXTRADITION FROM TUVALU TO TREATY COUNTRIES 32
41 Procedure applying to extradition to treaty countries...........................................32
42 Part 2 applies subject to treaty..............................................................................32
PART 6 - EXTRADITION FROM TUVALU TO COMITY COUNTRIES 32
43 Procedure applying to extradition to comity countries.........................................32
44 When comity country an extradition country.......................................................33
45 Limitation on extradition proceedings .................................................................33
46 Other modifications of Part 2 ...............................................................................33
PART 7 - GENERAL PROVISIONS RELATING TO SEARCH,
SEIZURE AND TRANSIT 33
47 Search and seizure on arrest without a warrant ....................................................33
48 Search and seizure warrants .................................................................................34
49 Return etc of seized property ...............................................................................36
50 Arrest of persons escaping from custody .............................................................36
51 Arrest of person released on bail..........................................................................36
52 Transit ..................................................................................................................36
PART 8 - EXTRADITION TO TUVALU 37
53 Surrendered persons to be brought into Tuvalu ...................................................37
Extradition Act CAP. 7.24 Arrangement of Sections
2008 Revised Edition
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54 Treatment of person surrendered to Tuvalu......................................................... 37
55 Persons temporarily surrendered to Tuvalu ......................................................... 38
56 Evidence for purposes of surrender of persons to Tuvalu.................................... 38
PART 9 - MISCELLANEOUS 39
57 Taking of evidence at request of another country................................................ 39
58 Prosecution, instead of extradition, of citizens of Tuvalu.................................... 39
59 Provision of evidence for prosecution by other countries.................................... 40
60 Surrender for purposes of trial only ..................................................................... 40
61 Regulations .......................................................................................................... 41
62 Transitional .......................................................................................................... 41
63 Exclusion of other laws........................................................................................ 41
SCHEDULE 1 43
COMMONWEALTH COUNTRIES 43
SCHEDULE 2 45
PACIFIC ISLAND COUNTRIES 45
SCHEDULE 3 46
TREATY COUNTRIES 46
SCHEDULE 4 47
PROVISIONAL ARREST WARRANT - GENERAL 47
PROVISIONAL ARREST WARRANT – EXTRADITION TO PACIFIC
ISLAND COUNTRY 48
SURRENDER WARRANT - GENERAL 49
TEMPORARY SURRENDER WARRANT - GENERAL 50
SURRENDER WARRANT – EXTRADITION TO PACIFIC ISLAND
COUNTRY 51
TEMPORARY SURRENDER WARRANT – EXTRADITION TO PACIFIC
ISLAND COUNTRY 52
Arrangement of Sections CAP. 7.24 Extradition Act
2008 Revised Edition Page 6
Supporting Documents
ENDNOTES 53
Extradition Act CAP. 7.24 Section 1
2008 Revised Edition
Page 7
EXTRADITION ACT
AN ACT RELATING TO THE EXTRADITION OF PERSONS TO AND
FROM TUVALU1
Commencement [7th May 2004]2
PART 1 - PRELIMINARY
1 Short title
This Act may be cited as the Extradition Act.
2 Commencement
This Act shall come into operation on a date to be fixed by the Minister.3
3 Purpose
The purposes of this Act are:
(a) to codify the law relating to the extradition of persons from Tuvalu; and
(b) to facilitate the making of requests for extradition by Tuvalu to other
countries; and
(c) to enable Tuvalu to carry out its obligations under extradition treaties.
4 Interpretation
(1) In this Act, unless the context otherwise requires:
“citizen of Tuvalu” has the meaning given by the Citizenship Act;
Section 4 CAP. 7.24 Extradition Act
2008 Revised Edition Page 8
“comity country” means a country other than a Commonwealth country, a
Pacific Island country or a treaty country;
“Commonwealth country” means a country that is specified in Schedule 1;
“country” includes:
(a) a colony, territory or protectorate of a country; and
(b) a territory for the international relations of which a country is
responsible; and
(c) a ship or aircraft owned by, or registered in, a country;
“endorsed warrant” means a warrant that has been issued in a Pacific Island
country and endorsed under section 30;
“extradition country” means:
(a) a Commonwealth country; or
(b) a Pacific Island country; or
(c) a comity country that is declared by the regulations to be an extradition
country; or
(d) a comity country certified by the Prime Minister to be an extradition
country for the purpose of a particular extradition request.
“extradition offence” has the meaning given by section 5;
“extradition request” means a request in writing by a country for the
surrender of a person to the country;
“extradition treaty”, in relation to a country, means a treaty:
(a) to which the country and Tuvalu are parties (whether or not any other
country is also a party); and
(b) that relates wholly or partly to the surrender of persons accused or
convicted of offences;
“foreign escort officer” means a representative of the country to whom a
person is to be surrendered who is authorised by that country to escort the
person from Tuvalu to that country;
“ICPO-Interpol” means the International Criminal Police Organisation;
“law of a country” includes a law in force in any part of the country;
“magistrate” means a person appointed as a magistrate under the Magistrates
Courts Act;
“original warrant” means a warrant issued in a Pacific Island country for the
arrest of a person;
“police officer” means a member of the Tuvalu Police Force;
“political offence”, in relation to a country, means an offence against the law
of the country that is of a political character (whether because of the
Extradition Act CAP. 7.24 Section 4
2008 Revised Edition
Page 9
circumstances in which it is committed or otherwise and whether or not there
are competing political parties in the country), but does not include:
(a) an offence:
(i) that is constituted by conduct of a kind referred to in a
multilateral treaty to which Tuvalu is a party; and
(ii) for which parties have an obligation to extradite or prosecute; or
(b) the offence of genocide; or
(c) an offence of:
(i) murder, kidnapping or other attack on the person or liberty; or
(ii) threatening or attempting to commit, or participating as an
accomplice in, murder, kidnapping or other attack on the person
or liberty,
of the head of State, head of Government or Minister of the
Government of the country or a member of his or her immediate
family; or
(d) any other offence that Tuvalu and the other country have agreed will
not be treated as a political offence for the purposes of extradition;
“prison” includes a gaol, police cell or other place where a person is ordered
under this Act to be detained;
“provisional arrest warrant” means:
(a) where the expression is used in Part 2—a warrant, in accordance with
Form 1 in Schedule 4, issued under section 8; or
(b) where the expression is used in Part 4—a warrant, in accordance with
Form 2 in Schedule 4, issued under section 2;.
“requesting country” means a country that is seeking the surrender of a
person from Tuvalu;
“Pacific Island country” means a country:
(a) that is a member of the Pacific Forum; and
(b) that is specified in Schedule 2;
“specialty undertaking” means an undertaking by a requesting country about
the treatment of a person whose surrender is sought by the requesting country;
“surrender offence” means an offence for which surrender is sought;
“surrender warrant” means:
(a) where the expression is used in Part 2 — a warrant, in accordance with
Form 3 in Schedule 4, issued under section 13 or 19; or
(b) where the expression is used in Part 4—a warrant, in accordance with
Form 4 in Schedule 4, issued under section 35 or 36;
“temporary surrender warrant” means:
Section 5 CAP. 7.24 Extradition Act
2008 Revised Edition Page 10
(a) where the expression is used in Part 2—a warrant, in accordance with
Form 5 in Schedule 4, issued under section 21; or
(b) where the expression is used in Part 4—a warrant, in accordance with
Form 6 in Schedule 4, issued under section 39;
“treaty” includes a convention, protocol, or agreement between 2 or more
countries.
“treaty country” means a country:
(a) with which Tuvalu has an extradition treaty; and
(b) that is specified in Schedule 3;
“writing” includes facsimile, electronic mail and any other means of
communication that can be reproduced in printed form.
(2) A Note is for information only and does not form part of this Act.
5 Extradition offence
(1) An offence is an extradition offence if:
(a) it is an offence against a law of the requesting country for which the
maximum penalty is death or imprisonment, or other deprivation of
liberty, for a period of 1 year or more; and
(b) the conduct that constitutes the offence, if committed in Tuvalu, would
constitute an offence (however described) in Tuvalu for which the
maximum penalty is death or imprisonment, or other deprivation of
liberty, for a period of 1 year or more.
(2) In determining whether conduct constitutes an offence, regard may be had to
only some of the acts and omissions that make up the conduct.
(3) In determining the maximum penalty for an offence for which no statutory
penalty is imposed, regard shall be had to the level of penalty that can be
imposed by any court in the requesting country for the offence.
(4) An offence may be an extradition offence although:
(a) it is an offence against a law of the requesting country relating to
taxation, customs duties or other revenue matters or relating to foreign
exchange control; and
(b) Tuvalu does not impose a duty, tax, impost or control of that kind.
6 Extradition objection
There is an extradition objection to a request for the surrender of a person if:
(a) the extradition offence is regarded as a political offence; or
(b) there are substantial grounds for believing that surrender of the person
is sought for the purpose of prosecuting or punishing the person
Extradition Act CAP. 7.24 Section 7
2008 Revised Edition
Page 11
because of his or her race, religion, nationality, political opinions, sex
or status, or for a political offence in the requesting country; or
(c) on surrender, the person may be prejudiced at his or her trial, or
punished, detained or restricted in his or her personal liberty, because of
his or her race, religion, nationality, political opinions, sex or status; or
(d) the offence is an offence under the military law, but not also under the
ordinary criminal law, of Tuvalu; or
(e) final judgement has been given against the person in Tuvalu, or in a
third country, for the offence; or
(f) under the law of the requesting country or Tuvalu, the person has
become immune from prosecution or punishment because of lapse of
time, amnesty or any other reason; or
(g) the person has already been acquitted or pardoned in the requesting
country or Tuvalu, or punished under the law of that country or Tuvalu,
for the offence or another offence constituted by the same conduct as
the extradition offence; or
(h) the judgment has been given in the person’s absence and there is no
provision in the law of the requesting country entitling the person to
appear before a court and raise any defence the person may have.
PART 2 - EXTRADITION FROM TUVALU—GENERAL
PROVISIONS
DIVISION 1—GENERAL
7 Application of Part 2
(1) This Part sets out the procedure that is to apply to requests for the extradition
from Tuvalu to other countries of persons accused or convicted of extradition
offences in other countries.
(2) This Part applies to extradition from Tuvalu to another country as follows:
(a) to a Commonwealth country—in accordance with Part 3; and
(b) to a treaty country—in accordance with Part 5; and
(c) to any other country other than a Pacific Island country—in accordance
with Part 6.
(3) The procedure for extradition to a Pacific Island country is in Part 4.
8 Issue of provisional arrest warrant
(1) If:
Section 9 CAP. 7.24 Extradition Act
2008 Revised Edition Page 12
(a) a country, either directly or through ICPO-Interpol, notifies Tuvalu
that:
(i) a person wanted for surrender is, or is believed to be, in or on his
or her way to Tuvalu; and
(ii) the requesting country intends to make a formal request for the
extradition of the person; and
(b) an application is made to a magistrate for a provisional arrest warrant;
then the magistrate shall issue the provisional arrest warrant for the person if:
(c) the application is supported by the required documents; and
(d) the magistrate is satisfied that the offence is an extradition offence; and
(e) the magistrate is satisfied that the request is made by an extradition
country.
(2) The required documents are:
(a) a copy of the warrant for the arrest of the person issued in the
requesting country; and
(b) a description of the person sought; and
(c) a description of the acts and omissions that constitute the offence; and
(d) the text of the law creating the offence or, if the offence is not created
by statute, a statement of the offence; and
(e) the text of the law of the requesting country that prescribes the penalty
or, if the penalty is not prescribed by statute, a statement of the penalty
that can be imposed.
9 Arrest and remand on provisional arrest warrant
(1) A person arrested under a provisional arrest warrant shall be brought before a
magistrate as soon as practicable.
(2) The magistrate shall:
(a) remand the person in custody; or
(b) if the magistrate is satisfied that the person is unlikely to abscond—
remand the person on bail;
until the Prime Minister issues an authority to proceed.
(3) A magistrate who remands a person on bail:
(a) has the same powers in relation to recognisances and reporting
conditions as he or she has under the criminal laws of Tuvalu; and
(b) may order that the person’s passport and other travel documents be
surrendered to the magistrate until the extradition proceedings in
relation to the person are concluded.
Extradition Act CAP. 7.24 Section 10
2008 Revised Edition
Page 13
(4) A person shall not be remanded in custody or on bail for a period longer than
42 days.
(5) As soon as possible after remanding the person, the magistrate shall:
(a) tell the Prime Minister:
(i) that the magistrate has remanded the person; and
(ii) the name of the requesting country; and
(iii) the offence for which surrender will be sought; and
(b) give a copy of the authority to proceed, the extradition request and the
documents on which the issue of the provisional arrest warrant is based
to the Prime Minister and the person.
(6) If the Prime Minister considers that the request for extradition of the person
for the offence will not be granted, either because of an extradition objection
or because of a matter mentioned in section16, he or she shall order:
(a) the person to be released; or
(b) the discharge of the recognisance on which bail was granted.
10 Release from remand
(1) If:
(a) a person continues to be on remand (in custody or on bail) either:
(i) 42 days after the day on which the person was arrested; or
(ii) if the extradition treaty between Tuvalu and the requesting
country provides for another period – for that period after the day
on which the person was arrested; and
(b) the Prime Minister has not issued an authority to proceed,
the person shall be brought before a magistrate.
(2) The magistrate may remand the person, in custody or on bail, for a further
period of not more than 42 days if the magistrate is satisfied that an authority
to proceed will be issued within that period.
(3) If the magistrate is not so satisfied, the magistrate shall order:
(a) the release of the person from custody; or
(b) the discharge of the recognisances on which bail was granted.
11 Authority to proceed
(1) If an extradition request is received, the Prime Minister shall:
(a) consider the request; and
(b) issue an authority to proceed if he or she is satisfied that:
Section 12 CAP. 7.24 Extradition Act
2008 Revised Edition Page 14
(i) the offence for which extradition is sought is an extradition
offence; and
(ii) the requesting country is an extradition country; and
(iii) there is nothing in section 19 or any other law that would
preclude surrender of the person; and
(c) give the authority to proceed to a magistrate; and
(d) give a copy of the authority to proceed and the extradition request to the
person.
(2) If an authority to proceed is received by a magistrate in relation to a person
who has not been arrested under a provisional arrest warrant, the magistrate
shall issue a warrant for the person’s arrest.
12 Arrest and remand on authority to proceed
(1) A person who is arrested under a warrant issued under section 11 shall be
brought before a magistrate as soon as practicable.
(2) The magistrate shall:
(a) remand the person in custody; or
(b) if the magistrate is satisfied that the person is unlikely to abscond—
remand the person on bail;
for the period that is necessary for proceedings under section 13 (dealing with
consent to surrender) or 14 (dealing with extradition proceedings), or both, to
be conducted.
(3) A magistrate who remands a person on bail:
(a) has the same powers in relation to recognisances and reporting
conditions as he or she has under the criminal laws of Tuvalu; and
(b) may order that the person’s passport and other travel documents be
surrendered to the magistrate until the extradition proceedings in
relation to the person are concluded.
(4) If a magistrate remands the person in custody after the person has made an
application for bail, the person is not entitled to apply to any other magistrate
for release on bail during that remand, unless the first magistrate is no longer
available.
13 Consent to surrender
(1) At any time the person may tell a magistrate that the person consents to being
surrendered to the requesting country for the extradition offence for which
that country seeks his or her surrender.
(2) If:
(a) a person consents to being surrendered for the extradition offence; and
Extradition Act CAP. 7.24 Section 14
2008 Revised Edition
Page 15
(b) the requesting country has asked that the person also be surrendered for
another offence that is not an extradition offence,
the magistrate shall ask the person whether the person also consents to being
surrendered for that other offence.
(3) If:
(a) the person informs the magistrate that he or she consents to being
surrendered; and
(b) the magistrate is satisfied that the consent was given voluntarily;
the magistrate shall tell the person that the effect of consenting will be that:
(c) the person will be committed to prison without any extradition
proceedings to determine whether the person should be surrendered for
an extradition offence; and
(d) after the Prime Minister issues a surrender warrant, the person will be
surrendered to the requesting country.
(4) If the person again consents to being surrendered, the magistrate shall:
(a) by warrant, order that the person be committed to prison; and
(b) tell the Prime Minister in writing that the person has been committed to
prison and the offence for which the person has consented to be
surrendered.
(5) The Prime Minister may then issue a surrender warrant for the person.
14 Extradition proceedings
If:
(a) the Prime Minister has issued an authority to proceed for an extradition
offence in relation to a person; and
(b) the person has not consented to surrender for the offence; and
(c) an application is made to a magistrate by or on behalf of the person or
the requesting country for extradition proceedings to be conducted in
relation to the person; and
(d) the magistrate considers that the person and the requesting country have
had reasonable time since the person received a copy of the extradition
request to prepare for the proceedings,
the magistrate shall conduct proceedings to determine whether the person should be
surrendered for the extradition offence for which surrender of the person is sought.
Section 15 CAP. 7.24 Extradition Act
2008 Revised Edition Page 16
15 Conduct of extradition proceedings
(1) Extradition proceedings shall be conducted in the same manner as criminal
proceedings. In particular, the rules that apply in criminal proceedings to the
following matters apply to extradition proceedings:
(a) summoning witnesses;
(b) remanding defendants;
(c) ordering the production of documents;
(d) administration of oaths and affirmations;
(e) payment of witness expenses;
(f) contempt of court, privilege and other matters relating to the
administration of courts;
(g) the imposition and level of fines for offences.
(2) In the proceedings, the person is not entitled to bring, and the magistrate is not
entitled to receive, evidence to contradict an allegation that the person has
engaged in conduct that constitutes the offence for which extradition is
sought.
16 Determination whether person may be surrendered
(1) The magistrate shall not order that a person be held in custody for surrender to
the requesting country unless the magistrate is satisfied:
(a) that the requesting country is an extradition country; and
(b) that the surrender offence is an extradition offence; and
(c) as to the identity of the person; and
(d) that the supporting documents have been produced to the magistrate;
and
(e) that the supporting documents satisfy the requirements of section 17;
and
(f) that surrender should not be refused because the person sought has
established an extradition objection.
(2) If the magistrate determines that the person be held in custody for surrender,
the magistrate shall:
(a) issue a warrant, ordering that the person be committed to prison to
await the Prime Minister’s decision on surrender; and
(b) tell the person that he or she may, within 15 days after the day on which
the order is made, seek a review of the order under subsection 18 (1);
and
(c) record in writing his or her decision and the extradition offence for
which the person should be surrendered; and
(d) give a copy of the record to the person and the Prime Minister.
Extradition Act CAP. 7.24 Section 17
2008 Revised Edition
Page 17
(3) If:
(a) the magistrate determines that the person be held in custody for
surrender for an extradition offence; and
(b) the requesting country has asked that the person also be surrendered for
another offence that is not an extradition offence:
the magistrate shall ask the person whether the person also consents to being
surrendered for that other offence.
(4) If the magistrate determines that the person should not be surrendered to the
requesting country, the magistrate shall:
(a) order that the person be released; and
(b) tell the Prime Minister in writing of the order and of the magistrate's
reasons for determining that the person should not be surrendered.
17 Supporting documents
(1) In paragraph 16(1)(d), “supporting documents”, in relation to an extradition
offence, means:
(a) as accurate a description as possible of the person sought, together with
any other information that may help to establish the identity and
nationality of the person; and
(b) the text of the law creating the offence or, if the offence is not created
by statute, a statement of the offence; and
(c) the text of the law of the requesting country that prescribes the penalty
or, if the penalty is not prescribed by statute, a statement of the penalty
that can be imposed; and
(d) a statement of the acts and omissions that constitute the offence, and
details of the time and place the offence was committed; and
(e) if the person is accused of the offence — a duly authenticated warrant
issued by the requesting country for the arrest of the person for the
offence, or a duly authenticated copy of the warrant; and
(f) if the person has been convicted of the offence — duly authenticated
documents that provide evidence of:
(i) the conviction; and
(ii) the sentence imposed or intended to be imposed; and
(iii) whether the sentence imposed has been carried out; and
(iv) whether the sentence is immediately enforceable.
(2) If:
(a) a document relevant to the proceedings contains a deficiency; and
(b) the magistrate considers the deficiency to be minor,
Section 18 CAP. 7.24 Extradition Act
2008 Revised Edition Page 18
the magistrate shall adjourn the proceedings for a reasonable period to allow
the deficiency to be remedied.
(3) Any document that is duly authenticated is admissible in the proceedings.
(4) A document that is sought by or on behalf of the requesting country to be
admitted in the proceedings is duly authenticated if:
(a) it purports to be signed or certified by a judge, magistrate or officer in
or of the requesting country; and
(b) it purports to be authenticated by the oath or affirmation of a witness or
to be sealed with an official or public seal:
(i) in any case—of the requesting country or of a Minister,
Department of State or Department or officer of the Government
of that country; or
(ii) if the extradition country is a colony, territory or protectorate—of
the person administering the Government of that country or of
any person administering a Department of the Government of
that country.
(5) Nothing in this section prevents the proof of any matter or the admission of
any document in the proceedings in accordance with any other law of Tuvalu.
18 Review of magistrate’s decision by High Court
(1) If a magistrate orders that a person be held until a surrender determination is
made or refused, the person may apply to the High Court for a review of the
order.
(2) If a magistrate orders that a person be released, or that the person be
surrendered for some offences only, the requesting country may apply to the
High Court for a review of the order.
(3) The application shall be made within 15 days after the day the magistrate
makes the order.
(4) The High Court shall have regard only to the material that was before the
magistrate.
(5) The High Court may, by order, confirm or quash the order of the magistrate
and order that the person be held for surrender or released.
(6) If the High Court orders that the person be held until a surrender
determination is made or refused, the Court shall include in its judgment a
statement specifying the offence and shall:
(a) if the person is not in custody—by warrant commit the person to prison
until the Prime Minister has made a decision under section 19; or
(b) if the person is in custody—order that the person remain in custody
until the Prime Minister has made a decision under section 19.
Extradition Act CAP. 7.24 Section 19
2008 Revised Edition
Page 19
(7) If the High Court orders that the person be released, the person shall be
released accordingly.
19 Surrender determination by Prime Minister
(1) If:
(a) a magistrate has reported to the Prime Minister that a person should be
held for surrender; and
(b) the period during which an appeal may be lodged has ended and no
appeal was lodged or, on appeal, the High Court ordered that the person
be held for surrender,
the Prime Minister shall make a final decision whether the person should be
surrendered.
(2) The Prime Minister may refuse to order that the person be surrendered if:
(a) the requesting country has not given a specialty undertaking and:
(i) the requesting country is not a country with which Tuvalu has a
bilateral treaty containing a specialty undertaking; or
(ii) the law of the requesting country does not contain a provision
prohibiting prosecution for an offence other than the one for
which the person is surrendered; or
(b) the person is a citizen of Tuvalu; or
(c) the offence for which surrender has been ordered is punishable by death
in the requesting country but not in Tuvalu and the requesting country
has not given a sufficient undertaking that the penalty either will not be
imposed or, if imposed, will not be carried out; or
(d) a prosecution for the offence for which surrender has been ordered is
pending against the person in Tuvalu; or
(e) the offence for which surrender has been ordered was committed
outside the territory of the requesting country and the law of Tuvalu
does not provide for jurisdiction over an offence of that kind committed
in similar circumstances outside Tuvaluan territory; or
(f) the offence for which surrender has been ordered is regarded by Tuvalu
as having been committed wholly or partly within Tuvalu; or
(g) the person has been sentenced, or would be liable to be tried or
sentenced, in the requesting country by an extraordinary or ad hoc court
or tribunal; or
(h) the person has been subjected in the requesting country to torture or
cruel, inhuman or degrading treatment or punishment; or
(i) having regard to:
(i) Tuvalu’s national interest, including its interests in effective
international co-operation to combat crime; and
Section 20 CAP. 7.24 Extradition Act
2008 Revised Edition Page 20
(ii) the severity of the offence;
the Prime Minister is of the view that the person should not be
surrendered.
(3) For the purposes of paragraph (2)(a), the requesting country is taken to have
given a specialty undertaking if it undertakes that the person will not, without
having the opportunity of leaving the requesting country:
(a) be detained or tried for an offence committed before surrender, other
than:
(i) the surrender offence; or
(ii) an offence of which the person could be convicted on proof of
the facts constituting the surrender offence, for which the penalty
is no greater than the penalty for the surrender offence; or
(b) be detained in the requesting country for surrender to a third country for
an offence committed before surrender to the requesting country,
unless the Prime Minister consents to the trial or the surrender to the third
country.
(4) Tuvalu shall not refuse to surrender a person because the person may be
subjected to torture or cruel, inhuman or degrading treatment or punishment if
the requesting country and Tuvalu have ratified:
(a) the Convention against Torture and other Cruel, Inhuman and
Degrading Treatment or Punishment, being the convention of that title
that was adopted by the General Assembly of the United Nations on 10
December 1984; or
(b) the International Covenant on Civil and Political Rights.
(5) If the Prime Minister decides that the person is to be surrendered to the
requesting country, the Prime Minister shall issue a surrender warrant or a
temporary surrender warrant for the person.
[NOTE: For temporary surrender warrant, see s.21]
(6) If the Prime Minister decides that the person is not to be surrendered to the
requesting country, the Prime Minister shall in writing order that the person
be released.
20 Surrender warrant
(1) The surrender warrant shall:
(a) be in writing, in accordance with Form 3; and:
(b) state the offences for which the person is to be surrendered; and
(c) require any person who has custody of the person to hand the person
over to a police officer; and
(d) authorise a police officer to:
Extradition Act CAP. 7.24 Section 21
2008 Revised Edition
Page 21
(i) transport the person from the place where the police officer takes
custody of the person to another place within Tuvalu for the
purpose of handing the person over to the custody of a foreign
escort officer; and
(ii) hold the person in custody for so long as is necessary to enable
the person to be handed over to the foreign escort officer; and
(e) authorise the foreign escort officer to transport the person out of
Tuvalu.
(2) If the person is serving a custodial sentence, or has been admitted to bail, in
Tuvalu for an offence committed in Tuvalu, the surrender warrant shall not be
executed until:
(a) the person has been released from custody; or
(b) the recognisance has been discharged.
21 Temporary surrender warrant
(1) The Prime Minister may issue a temporary surrender warrant instead of a
surrender warrant if:
(a) the person is serving a custodial sentence in Tuvalu; and
(b) surrender is sought for an offence of which the person is accused but of
which the person has not been convicted; and
(c) the Prime Minister is satisfied that the requesting country has given an
adequate undertaking that:
(i) the person will be given a speedy trial in the requesting country;
and
(ii) the person will be returned to Tuvalu after the trial; and
(d) the Prime Minister is satisfied that adequate provision has been made
for the travel of the person to the requesting country and for his or her
return to Tuvalu.
(2) The temporary surrender warrant shall:
(a) be in writing, in accordance with Form 4; and:
(b) state the offences for which the person is to be surrendered; and
(c) require any person who has custody of the person to hand the person
over to a police officer; and
(d) authorise a police officer to:
(i) transport the person from the place where the police officer takes
custody of the person to another place within Tuvalu for the
purpose of handing the person over to the custody of a foreign
escort officer; and
(ii) hold the person in custody for so long as is necessary to enable
the person to be handed over to the foreign escort officer; and
Section 22 CAP. 7.24 Extradition Act
2008 Revised Edition Page 22
(e) authorise the foreign escort officer to transport the person out of
Tuvalu.
(3) If a person who was the subject of a temporary surrender warrant:
(a) has been returned to Tuvalu after trial and sentence in the requesting
country; and
(b) has completed his or her custodial sentence in Tuvalu,
the Prime Minister shall issue a surrender warrant for the surrender of the
person to the requesting country, unless the Prime Minister is satisfied that it
would be unjust or oppressive to surrender the person because of changed
circumstances in the requesting country.
(4) Any time the person spends in custody in the requesting country as a result of
the temporary surrender is taken to be time spent in custody in Tuvalu for the
purpose of completing the sentence for which the person was in custody in
Tuvalu.
(5) If:
(a) time spent in custody in the requesting country is taken into account as
mentioned in subsection (3); and
(b) because of this, the person’s sentence in Tuvalu is concluded,
the Prime Minister shall tell the requesting country that the undertakings
given by that country about the speedy trial and return of the person no longer
apply.
22 Execution of surrender warrant
(1) If a person is not surrendered under a surrender warrant within 2 months after:
(a) the date the surrender warrant was issued; or
(b) if the person is serving a custodial sentence, or has been admitted to
bail, in Tuvalu—the person has been released from custody or the
recognisance has been discharged,
the person may apply to a magistrate to be released from custody. The person
shall tell the Prime Minister in writing of the application.
(2) If the magistrate is satisfied that:
(a) the Prime Minister has been told of the application; and
(b) there is no reasonable cause for delay in surrendering the person,
the magistrate shall order that the person be released from custody.
(3) Without limiting paragraph (2)(b), reasonable cause for delay exists if:
(a) it would have been a danger to the person’s life, or prejudicial to the
person’s health, to surrender the person; or
Extradition Act CAP. 7.24 Section 23
2008 Revised Edition
Page 23
(b) there was no suitable means of transporting the person to the requesting
country, and all reasonable steps were taken to obtain suitable transport;
or
(c) there was delay by a country in responding to a request by the
requesting country for permission to transport the person, and all
reasonable steps were taken to obtain the permission; or
(d) because of the remoteness of the requesting country, it would be
unreasonable to expect the person to have been surrendered within the
period mentioned in subsection (1).
PART 3 - EXTRADITION FROM TUVALU TO
COMMONWEALTH COUNTRIES
23 Procedure applying to extradition to Commonwealth countries
The procedures set out in Part 2 apply to the extradition of a person from Tuvalu to a
Commonwealth country.
24 Evidentiary requirements for Commonwealth countries
The evidentiary requirements set out in section 26 (the record of the case scheme)
apply to all extradition proceedings conducted at the request of a Commonwealth
country.
25 The record of the case
(1) In this section:
“record of the case”, in relation to a surrender offence, means:
(a) a document containing a recital of the evidence acquired to support the
request; and
(b) an authenticated copy, reproduction or photograph of all exhibits and
documentary evidence.
(2) In addition to any evidentiary requirements in Part 2, a magistrate shall not
determine that a person should be surrendered to a requesting country unless a
record of the case is produced for the surrender offence.
(3) The record of the case shall be accompanied by:
(a) an affidavit of an officer of the authority that investigated the matter,
stating that:
(i) the record of the case was prepared by him or her, or under his or
her direction; and
Section 26 CAP. 7.24 Extradition Act
2008 Revised Edition Page 24
(ii) the evidence in the record of the case has been preserved for use
in the person’s trial; and
(b) a certificate of the Prime Minister of the requesting country stating that,
in his or her opinion, the record of the case discloses the existence of
evidence that is sufficient under the law of the requesting country to
justify a prosecution in the requesting country.
26 Commonwealth countries for purpose of Constitution of Tuvalu
Each country listed in Schedule 1 is declared to be a Commonwealth country for the
purpose of the definition of “Commonwealth country” in the Constitution of Tuvalu.
PART 4 - EXTRADITION FROM TUVALU TO PACIFIC ISLAND
COUNTRIES—BACKING OF WARRANTS PROCEDURE
27 Procedure applying to extradition to Pacific Island countries
This Part sets out the procedure that is to apply to the extradition from Tuvalu to
Pacific Island countries of persons accused or convicted of extradition offences in
those countries. The procedure is known as “backing of warrants”.
28 Provisional arrest warrant
(1) If:
(a) an application is made to a magistrate on behalf of a Pacific Island
country for the issue of a warrant for the arrest of a person; and
(b) the magistrate is told by affidavit that:
(i) an original warrant for the arrest of the person has been issued in
the Pacific Island country but the warrant is not available in
Tuvalu; and
(ii) the person named in the original warrant is, or is suspected of
being, in or on his or her way to Tuvalu; and
(c) the magistrate is satisfied that it is reasonable in the circumstances to
issue a warrant,
the magistrate shall issue a provisional arrest warrant for the arrest of the
person.
(2) The provisional arrest warrant shall be in accordance with Form 2.
Extradition Act CAP. 7.24 Section 29
2008 Revised Edition
Page 25
29 Arrest and remand on provisional arrest warrant
(1) A person arrested under a provisional arrest warrant shall be brought before a
magistrate as soon as practicable.
(2) The magistrate shall:
(a) remand the person in custody; or
(b) if the magistrate is satisfied that the person is unlikely to abscond—
remand the person on bail,
until the Pacific Island country produces the original warrant on which the
provisional arrest warrant was based.
(3) A magistrate who remands a person on bail:
(a) has the same powers in relation to recognisances and reporting
conditions as he or she has under the criminal laws of Tuvalu; and
(b) may order that the person’s passport and other travel documents be
surrendered to the magistrate until the extradition proceedings in
relation to the person are concluded.
(4) A person shall not be remanded in custody or on bail for a period longer than
28 days.
30 Endorsement of warrant
(1) If:
(a) an application is made to a magistrate on behalf of a Pacific Island
country for the endorsement of a warrant issued in the Pacific Island
country for the arrest of a person (an “original warrant”); and
(b) the magistrate is told by affidavit that the person named in the original
warrant is, or is suspected of being, in or on his or her way to Tuvalu,
the magistrate shall endorse the original warrant to authorise the arrest of the
person under the warrant in Tuvalu.
31 Arrest and remand on endorsed warrant
(1) A person who is arrested under an endorsed warrant shall be brought before a
magistrate as soon as practicable.
(2) The magistrate shall:
(a) remand the person in custody; or
(b) if the magistrate is satisfied that the person is unlikely to abscond—
remand the person on bail,
for the period that is necessary for proceedings under section 35 (dealing with
consent to surrender) or 36 (dealing with extradition proceedings), or both, to
be conducted.
Section 32 CAP. 7.24 Extradition Act
2008 Revised Edition Page 26
(3) A magistrate who remands a person on bail:
(a) has the same powers in relation to recognisances and reporting
conditions as he or she has under the criminal laws of Tuvalu; and
(b) may order that the person’s passport and other travel documents be
surrendered to the magistrate until the extradition proceedings in
relation to the person are concluded.
(4) A person shall not be remanded in custody or on bail for a period longer than
28 days.
(5) If a magistrate remands the person in custody after the person has made an
application for bail, the person is not entitled to apply to any other magistrate
for release on bail during that remand, unless the first magistrate is no longer
available.
32 Release from remand
(1) If:
(a) a person is on remand in custody or on bail 28 days after the day on
which the person was arrested on a provisional warrant; and
(b) an endorsed warrant for the arrest of the person has not been obtained,
the person shall be brought before a magistrate.
(2) The magistrate shall order:
(a) the release of the person from custody; or
(b) the discharge of the recognisances on which bail was granted,
unless the magistrate is satisfied that the endorsed warrant will be obtained
within a particular period that is reasonable in all the circumstances.
(3) If:
(a) a person is on remand in custody or on bail 28 days after the day on
which the person was arrested on an endorsed warrant; and
(b) no request has been made under section 33 for extradition proceedings
to be conducted,
the person shall be brought before a magistrate.
(4) The magistrate shall order:
(a) the release of the person from custody; or
(b) the discharge of the recognisances on which bail was granted,
unless the magistrate is satisfied that a request under section 33 for extradition
proceedings to be conducted will be made within a particular period that is
reasonable in all the circumstances.
Extradition Act CAP. 7.24 Section 33
2008 Revised Edition
Page 27
33 Extradition proceedings
If:
(a) either:
(i) a person has been remanded after being arrested under an
endorsed warrant; or
(ii) a person has been remanded after being arrested under a
provisional arrest warrant and the original warrant has since been
endorsed; and
(b) a request is made to a magistrate by or on behalf of the person or the
Pacific Island country for extradition proceedings to be conducted in
relation to the person,
the magistrate shall conduct proceedings as soon as practicable to determine whether
the person should be surrendered to the Pacific Island country.
34 Conduct of extradition proceedings
(1) A magistrate shall not conduct extradition proceedings unless he or she is
satisfied that both the person sought and the Pacific Island country have had
reasonable time to prepare for the conduct of the proceedings.
(2) Extradition proceedings shall be conducted in the same manner as criminal
proceedings. In particular, the rules that apply in criminal proceedings in
relation to the following matters apply to the extradition proceedings:
(a) summoning witnesses;
(b) remanding defendants;
(c) ordering the production of documents;
(d) administration of oaths and affirmations;
(e) payment of witness expenses;
(f) contempt of court, privilege and other matters relating to the
administration of courts;
(g) the imposition and level of fines for offences.
(3) In the proceedings, the person is not entitled to adduce, and the magistrate is
not entitled to receive, evidence to contradict an allegation that the person has
engaged in conduct that constitutes the offence for which extradition is
sought.
35 Consent to surrender
(1) At the proceedings the magistrate shall ask the person if he or she consents to
being surrendered.
(2) If:
Section 36 CAP. 7.24 Extradition Act
2008 Revised Edition Page 28
(a) the person tells the magistrate that he or she consents to being
surrendered; and
(b) the magistrate is satisfied that the consent was given voluntarily,
the magistrate shall tell the person that he or she will be:
(c) committed to prison without further proceedings; and
(d) surrendered to the Pacific Island country as soon as practicable.
(3) If the person again consents to being surrendered, the magistrate shall:
(a) by warrant (a “surrender warrant”), order that the person be surrendered
to the Pacific Island country; and
(b) by warrant, order that the person be committed to prison until the
person is surrendered to the Pacific Island country.
36 Determination whether person should be surrendered
(1) At the proceedings:
(a) the person may not bring evidence that the person did not commit the
offence; but
(b) the person may bring evidence about the matters mentioned in
subsection (2).
(2) The magistrate shall determine that the person should be surrendered unless
he or she is satisfied that:
(a) the surrender offence is of a trivial nature; or
(b) if the offence is one of which the person is accused but not convicted—
the accusation was not made in good faith and in the interests of justice;
or
(c) a lengthy period has elapsed since the offence was committed; or
(d) it would be unjust, oppressive or too severe a punishment to surrender
the person; or
(e) the prison conditions in the requesting country are not substantially
equivalent to the minimum standards for imprisonment in Tuvalu.
(3) If the magistrate determines that the person should be surrendered, the
magistrate shall:
(a) by warrant (a “surrender warrant”), order that the person be surrendered
to the Pacific Island country; and
(b) by warrant, order that the person be committed to prison until the
person is surrendered to the Pacific Island country; and
(c) tell the person that he or she may, within 15 days of the day on which
the order is made, seek a review of the order under section 37 (dealing
with review of the decision); and
Extradition Act CAP. 7.24 Section 37
2008 Revised Edition
Page 29
(d) record in writing his or her decision and the extradition offence for
which the person is to be surrendered; and
(e) give a copy to the person and to the Prime Minister.
(4) In spite of subsection (3), if:
(a) the person is serving a custodial sentence in Tuvalu; and
(b) surrender is sought for an offence for which the person is accused but
not convicted,
the magistrate shall not issue a surrender warrant for the person but shall refer
the matter to the Prime Minister to be dealt with under section 39 (temporary
surrender warrants).
(5) If the magistrate determines that the person should not be surrendered to the
Pacific Island country, the magistrate shall order that the person be released.
37 Review of magistrate’s decision
(1) If a magistrate makes an order for the surrender of a person, the person may
apply to the High Court for a review of the order.
(2) If a magistrate makes an order for the release of a person, the Pacific Island
country may apply to the High Court for a review of the order.
(3) The application shall be made within 15 days after the day on which the
magistrate makes the order.
(4) The High Court shall have regard only to the material that was before the
magistrate.
(5) The High Court may, by order, confirm or quash the order of the magistrate
and order that the person be surrendered or released.
(6) If the High Court orders that the person be surrendered, the Court shall
include in its judgment a statement specifying the offence and shall:
(a) if the person was remanded on bail—by warrant commit the person to
prison until the person is surrendered; or
(b) if the person is in custody—order that the person remain in custody
until the person is surrendered.
(7) If the High Court orders that the person be released, the Court shall:
(a) if the person is in custody—order that the person be released; or
(b) if the person has been remanded on bail—order that the recognisance
be discharged.
38 Surrender warrant
(1) The surrender warrant shall:
(a) be in writing, in accordance with Form 5; and:
Section 39 CAP. 7.24 Extradition Act
2008 Revised Edition Page 30
(b) require any person who has custody of the person to hand the person
over to a police officer; and
(c) authorise a police officer to:
(i) transport the person from the place where the police officer takes
custody of the person to another place within Tuvalu for the
purpose of handing the person over to the custody of a foreign
escort officer; and
(ii) hold the person in custody for so long as is necessary to enable
the person to be handed over to the foreign escort officer; and
(d) authorise the foreign escort officer to transport the person out of
Tuvalu.
(2) If the person is serving a custodial sentence, or has been admitted to bail, in
Tuvalu for an offence committed in Tuvalu, the surrender warrant shall not be
executed until:
(a) the person has been released from custody; or
(b) the recognisance has been discharged.
39 Temporary surrender warrant
(1) The Prime Minister may issue a temporary surrender warrant instead of a
surrender warrant if:
(a) the person is serving a custodial sentence in Tuvalu; and
(b) surrender is sought for an offence of which the person is accused but of
which the person has not been convicted; and
(c) the Prime Minister is satisfied that the Pacific Island country has given
an adequate undertaking that:
(i) the person will be given a speedy trial in the Pacific Island
country; and
(ii) the person will be returned to Tuvalu after the trial; and
(d) the Prime Minister is satisfied that adequate provision has been made
for the travel of the person to the Pacific Island country and for his or
her return to Tuvalu.
(2) The temporary surrender warrant shall:
(a) be in writing, in accordance with Form 6; and:
(b) state the offences for which the person is to be surrendered; and
(c) require any person who has custody of the person to hand the person
over to a police officer; and
(d) authorise a police officer to:
(i) transport the person from the place where the police officer takes
custody of the person to another place within Tuvalu for the
Extradition Act CAP. 7.24 Section 40
2008 Revised Edition
Page 31
purpose of handing the person over to the custody of a foreign
escort officer; and
(ii) hold the person in custody for so long as is necessary to enable
the person to be handed over to the foreign escort officer; and
(e) authorise the foreign escort officer to transport the person out of
Tuvalu.
(3) If a person who was the subject of a temporary surrender warrant:
(a) has been returned to Tuvalu after trial and sentence in the Pacific Island
country; and
(b) has completed his or her custodial sentence in Tuvalu,
the Prime Minister shall issue a surrender warrant for the surrender of the
person to the Pacific Island country, unless the Prime Minister is satisfied that
it would be unjust or oppressive to surrender the person because of changed
circumstances in the Pacific Island country.
(4) Any time the person spends in custody in the Pacific Island country as a result
of the temporary surrender is taken to be time spent in custody in Tuvalu for
the purpose of completing the sentence for which the person was in custody in
Tuvalu.
(5) If:
(a) time spent in custody in the Pacific Island country is taken into account
as mentioned in subsection (3); and
(b) because of this, the person’s sentence in Tuvalu is concluded,
the Prime Minister shall tell the Pacific Island country that the undertakings
given by that country about the speedy trial and return of the person no longer
apply.
40 Execution of surrender warrant
(1) If a person is not surrendered under a surrender warrant within 2 months after:
(a) the date the surrender warrant was issued; or
(b) if the person is serving a custodial sentence, or has been admitted to
bail, in Tuvalu—the person has been released from custody or the
recognisance has been discharged,
the person may apply to a magistrate to be released from custody. The person
shall tell the Prime Minister in writing of the application.
(2) If the magistrate is satisfied that:
(a) the Prime Minister has been told of the application; and
(b) there is no reasonable cause for delay in surrendering the person,
the magistrate shall order that the person be released from custody.
Section 41 CAP. 7.24 Extradition Act
2008 Revised Edition Page 32
(3) Without limiting paragraph (2)(b), reasonable cause for delay exists if:
(a) it would have been a danger to the person’s life, or prejudicial to the
person’s health, to surrender the person; or
(b) there was no suitable means of transporting the person to the requesting
country, and all reasonable steps were taken to obtain suitable transport;
or
(c) there was delay by Tuvalu in responding to a request for permission to
transport the person, and all reasonable steps were taken to obtain the
permission.
PART 5 - EXTRADITION FROM TUVALU TO TREATY
COUNTRIES
41 Procedure applying to extradition to treaty countries
The procedures set out in Part 2 apply to the extradition of a person from Tuvalu to a
country with which Tuvalu has an extradition treaty.
[NOTE: These countries are listed in Schedule 3.]
42 Part 2 applies subject to treaty
However, Part 2 applies subject to:
(a) any limitations, conditions, exceptions or qualifications that are
contained in the extradition treaty between Tuvalu and the treaty
country; and
(b) any modifications to this Act made by the regulations.
[NOTE: Regulations may make any modifications to this Act necessary to give
effect to a treaty - see s. 61.]
PART 6 - EXTRADITION FROM TUVALU TO COMITY
COUNTRIES
43 Procedure applying to extradition to comity countries
Subject to section 46, the procedures set out in Part 2 apply to the extradition of a
person from Tuvalu to a country other than a Commonwealth country, a Pacific
Island country or a treaty country.
[NOTE: These other countries are called “comity countries” — see definition in s.4.]
Extradition Act CAP. 7.24 Section 44
2008 Revised Edition
Page 33
44 When comity country an extradition country
(1) The Prime Minister may:
(a) by regulations, specify a comity country as an extradition country; or
(b) if an extradition request is received from a comity country that is not
specified in the regulations — certify that the country is an extradition
country for the purpose of that extradition request.
(2) When the Prime Minister certifies that the country is an extradition country,
he or she shall also specify the provisions of this Act that are to apply to the
extradition request.
(3) In determining whether a comity country is an extradition country, the Prime
Minister shall consider:
(a) the public interest of Tuvalu; and
(b) the public interest of the requesting country; and
(c) the seriousness of the offence for which extradition of the person is
sought.
45 Limitation on extradition proceedings
Proceedings may not be commenced on a request from a comity country for the
surrender of a person unless:
(a) the Regulations specify that the country is an extradition country; or
(b) the Prime Minister has certified that the country is an extradition
country in accordance with section 44.
46 Other modifications of Part 2
When the Prime Minister specifies a comity country as an extradition country, he or
she may also modify Part 2 in its application to the country under this Part.
PART 7 - GENERAL PROVISIONS RELATING TO SEARCH,
SEIZURE AND TRANSIT
47 Search and seizure on arrest without a warrant
(1) This section applies to a person arrested:
(a) on a warrant issued under this Act; or
(b) on an endorsed warrant.
[NOTE: An endorsed warrant is one issued in a Pacific Island country and endorsed
under s.30—see definition in s.4.]
Section 48 CAP. 7.24 Extradition Act
2008 Revised Edition Page 34
(2) If a police officer who arrests a person under this Act has reasonable grounds
for suspecting that property in the vicinity of the person:
(a) may be material as evidence in proving an offence for which the
warrant was issued; or
(b) has been acquired by the person as the result of the offence for which
the warrant was issued,
the police officer may seize the property.
(3) If a police officer:
(a) arrests a person under this Act; and
(b) has reasonable grounds for suspecting that there is on the person, in the
clothing that the person is wearing or in or on any property in the
vicinity of the person that is under the apparent control of the person,
any thing (including a sum of money) that:
(i) may be material as evidence in proving any offence in relation to
which the warrant was issued or for which surrender of the
person is sought; or
(ii) has been acquired by the person as a result of that offence,
the police officer may search the person, the person's clothing or the property
and may seize any thing found as a result of the search.
(4) Subsection (2) does not authorise a police officer to remove, or to require the
person to remove, any of the clothing that the person is wearing.
(5) A person shall not be searched except by a police officer of the same sex.
(6) A police officer shall retain in safe keeping any property or thing seized
pending a direction from the Prime Minister about how the thing is to be dealt
with.
(7) Nothing in this section prevents or restricts the search of a person or of
clothing worn by, or of property under the immediate control of, a person
after the person is admitted to a prison after having been arrested for an
offence.
(8) The powers conferred by this section are in addition to any other powers
conferred by law.
48 Search and seizure warrants
(1) If a magistrate is informed by affidavit that there are reasonable grounds for
suspecting that there may be in a place:
(a) a thing that may be material as evidence in proving an offence for
which a provisional arrest warrant was issued or surrender of a person
is sought; or
Extradition Act CAP. 7.24 Section 48
2008 Revised Edition
Page 35
(b) a thing that has been acquired by a person as a result of such an
offence,
and the affidavit sets out those grounds, the magistrate may issue a warrant
authorising a police officer, with such assistance, and by such force, as is
necessary and reasonable:
(c) to seize the thing; or
(d) to enter the place and seize the thing; or
(e) to enter the place, search the place for a thing of that kind and seize any
thing of that kind found in the place.
(2) The magistrate shall not issue the warrant unless:
(a) there has been given to the magistrate by affidavit the further
information (if any) that the magistrate requires about the grounds on
which the warrant is being sought; and
(b) the magistrate is satisfied that there are reasonable grounds for issuing
the warrant.
(3) The warrant shall state:
(a) the purpose for which it is issued, including a reference to the nature of
any offence referred to in paragraph (1) (a); and
(b) whether it authorises entry at any time of the day or night or during
specified hours of the day or night; and
(c) the kind of things that may be seized; and
(d) that it ceases to have effect on a specified day, not being later than 1
month after the day it is issued.
(4) If, in the course of searching in accordance with the warrant:
(a) a police officer finds a thing that he or she believes on reasonable
grounds to be connected with the offence, but the thing is not of a kind
stated in the warrant; and
(b) the police officer believes on reasonable grounds that it is necessary to
seize that thing in order to prevent its concealment, loss or destruction,
the warrant is taken to authorise the police officer to seize the thing.
(5) The police officer shall retain in safe keeping a thing seized pending any
direction from the Prime Minister about how it is to be dealt with.
(6) In this section:
“place” includes a public place, area of water, premises, vessel, aircraft or
vehicle in any part of Tuvalu;
“thing” includes a vessel, aircraft or vehicle.
Section 49 CAP. 7.24 Extradition Act
2008 Revised Edition Page 36
49 Return etc of seized property
(1) The Prime Minister may direct that any property seized under section 47 or 48
that:
(a) may provide evidence of an offence for which surrender has been
ordered; or
(b) may have been acquired as a result of an offence of that kind,
shall be returned to the country that sought the surrender, if a surrender
warrant or temporary surrender warrant is issued after extradition proceedings
have concluded.
(2) If no surrender warrant has been issued after extradition proceedings have
concluded, the Prime Minister shall direct that the property be returned to the
person from whom it was seized, unless the Prime Minister is satisfied that
the interests of justice in the requesting country require the property to be
returned to the requesting country.
50 Arrest of persons escaping from custody
(1) A police officer may arrest a person without a warrant if the police officer has
reasonable grounds for believing that the person has escaped from custody
that was authorised under this Act.
(2) The person shall be returned to the custody mentioned in subsection (1).
(3) Escaping from custody as mentioned in subsection (1) does not constitute an
offence.
51 Arrest of person released on bail
(1) A police officer may arrest a person who has been remanded on bail under
this Act if the police officer has reasonable grounds for believing that the
person has contravened, or is about to contravene, a condition subject to
which bail was granted.
(2) The person shall be brought before a magistrate as soon as practicable.
52 Transit
(1) The Commissioner of Police shall give permission to a country (the “second
country”) to transport through the territory of Tuvalu a person who has been
surrendered to the second country by a third country if:
(a) the second country asked for transit permission before the person
entered Tuvalu; and
(b) the second country is:
(i) a Commonwealth country, a Pacific Island country or a treaty
country; or
Extradition Act CAP. 7.24 Section 53
2008 Revised Edition
Page 37
(ii) a country approved by the Prime Minister for the purpose of the
request.
(2) If transit permission is given under subsection (1):
(a) a police officer in Tuvalu may assist the foreign escort officer escorting
the person; and
(b) the person may be held in custody in Tuvalu until the person’s journey
can continue.
(3) If it is necessary to hold the person in custody for more than 24 hours, the
person shall be brought before a magistrate who may issue a warrant to
commit the person to custody.
PART 8 - EXTRADITION TO TUVALU
53 Surrendered persons to be brought into Tuvalu
(1) A person surrendered to Tuvalu for an offence against a law of Tuvalu of
which the person is accused or of which the person has been convicted shall
be brought into Tuvalu and delivered to the appropriate authorities to be dealt
with according to law.
(2) In particular, the person may be remanded in custody or on bail until the
person can be brought to trial.
54 Treatment of person surrendered to Tuvalu
A person surrendered to Tuvalu shall not:
(a) be detained or tried in Tuvalu for an offence that is alleged to have been
committed, or was committed, before the person was surrendered, other
than:
(i) an offence for which the person was surrendered; or
(ii) another offence (for which the penalty is the same or less) of
which the person could be convicted on proof of the conduct
constituting the extradition offence; or
(iii) another offence for which the surrendering country consents to
the person being detained or tried; or
(b) be detained in Tuvalu for surrender to a third country for trial or
punishment for an offence that is alleged to have been committed, or
was committed, before the person was surrendered to Tuvalu,
unless one of the following circumstances applies:
(c) the country that surrendered the person to Tuvalu consents to the person
being so detained, and tried or surrendered; or
Section 55 CAP. 7.24 Extradition Act
2008 Revised Edition Page 38
(d) the person has left, or has had the opportunity of leaving, Tuvalu.
55 Persons temporarily surrendered to Tuvalu
(1) If a person surrendered to Tuvalu:
(a) has not completed a custodial sentence in the surrendering country
immediately before being surrendered; or
(b) is a person whom Tuvalu has undertaken to hold in custody and return
to the surrendering country,
then the person:
(c) shall, while travelling to and from, and while in, Tuvalu, be kept in the
custody that the Prime Minister orders in writing; and
(d) may only be tried for an offence for which the person was surrendered;
and
(e) after the person has been tried—shall be returned to the surrendering
country.
(2) If:
(a) a person is held in custody only because of an order of the Prime
Minister under subsection (1); and
(b) the surrendering country notifies Tuvalu that the surrendering country
no longer requires the person to be returned,
the Prime Minister shall order that the person be released from custody.
56 Evidence for purposes of surrender of persons to Tuvalu
(1) If the Prime Minister intends to seek a person’s extradition to Tuvalu, the
Prime Minister may, by notice in writing, authorise the taking of evidence for
use in any proceedings for the extradition of the person to Tuvalu.
(2) A magistrate may take the evidence of each witness on oath or affirmation
and shall:
(a) cause the evidence to be reduced to writing and certify as to the taking
of the evidence; and
(b) cause the evidence and the certificate to be sent to the Prime Minister.
(3) The person in relation to whom the evidence is being taken is not entitled to
be represented while the evidence is being taken.
Extradition Act CAP. 7.24 Section 57
2008 Revised Edition
Page 39
PART 9 - MISCELLANEOUS
57 Taking of evidence at request of another country
(1) If another country requests Tuvalu to take evidence for the purpose of
criminal proceedings in that country, the Prime Minister may authorise a
magistrate to do so.
(2) The magistrate may take the evidence of each witness on oath or affirmation
and shall:
(a) cause the evidence to be reduced to writing and certify as to the taking
of the evidence; and
(b) cause the evidence and the certificate to be sent to the Prime Minister.
58 Prosecution, instead of extradition, of citizens of Tuvalu
(1) If:
(a) a country requests the surrender of a person because of conduct the
person engaged in outside Tuvalu; and
(b) the Prime Minister refuses to order the surrender of the person because
of a circumstance listed in subsection (2); and
(c) the person would have committed an offence against a law in force in
Tuvalu if the person had engaged in the conduct, or equivalent conduct,
in Tuvalu at that time,
the person may be prosecuted and punished in Tuvalu for the offence.
(2) The following are the circumstances for the purpose of paragraph (1)(b):
(a) the person is a citizen of Tuvalu; or
(b) on surrender, the person may be prejudiced at his or her trial, or
punished, detained or restricted in his or her personal liberty, because of
his or her race, religion, nationality, political opinions, sex or status; or
(c) the person has been subjected in the requesting country to torture or
cruel, inhuman or degrading treatment or punishment; or
(d) the judgment has been given in the person’s absence and there is no
provision in the law of the requesting country entitling the person to
appear before a court and raise any defence the person may have; or
(e) the offence for which surrender has been ordered is punishable by death
in the requesting country but not in Tuvalu and the requesting country
has not given a sufficient undertaking that the penalty either will not be
imposed or, if imposed, will not be carried out; or
(f) the person has been sentenced, or would be liable to be tried or
sentenced, in the requesting country by an extraordinary or ad hoc
tribunal.
Section 59 CAP. 7.24 Extradition Act
2008 Revised Edition Page 40
(3) For the purpose of the prosecution, the person is taken to have engaged in the
conduct in Tuvalu.
(4) A person shall not be prosecuted unless the Attorney-General:
(a) considers that there is sufficient evidence in Tuvalu to justify
prosecuting the person for the offence; and
(b) orders that the person be prosecuted for the offence.
(5) A person may be prosecuted whether the person engaged in the conduct
before or after the commencement of this Act.
(6) A person to whom subsection (1) applies may be:
(a) arrested for an offence mentioned in paragraph (1)(c); and
(b) charged with the offence; and
(c) remanded in custody or on bail,
although the Solicitor-General has not made an order under subsection (3).
59 Provision of evidence for prosecution by other countries
If —
(a) another country has refused to order that a person be surrendered to
Tuvalu; but
(b) the country is prepared to prosecute the person for the offence for
which Tuvalu sought surrender of the person,
the Prime Minister shall give the other country all available evidence to enable the
other country to prosecute the person.
60 Surrender for purposes of trial only
(1) If:
(a) Tuvalu refuses to surrender a person because:
(i) the person is a citizen of Tuvalu; or
(ii) the person has been subjected in the requesting country to torture
or cruel, inhuman or degrading treatment or punishment; or
(b) a magistrate determines under section 36 that a person should not be
surrendered because the prison conditions in the requesting country are
not substantially equivalent to the minimum standards for
imprisonment in Tuvalu,
and the requesting country asks that the person be surrendered for the
purposes of trial only, Tuvalu may surrender the person to the other country
for the purpose of being tried in the requesting country for the offence for
which extradition is sought if:
Extradition Act CAP. 7.24 Section 61
2008 Revised Edition
Page 41
(c) the law of the requesting country permits the transfer of convicted
offenders to Tuvalu; and
(d) Tuvalu is satisfied that if the person is convicted the person will be
returned to Tuvalu to serve the sentence imposed; and
(e) Tuvalu is satisfied that there is no likelihood that the person will be
subjected to torture or cruel, inhuman or degrading treatment or
punishment.
61 Regulations
(1) The Minister may make regulations, not inconsistent with this Act,
prescribing matters required or permitted by this Act to be prescribed, or
necessary or convenient to be prescribed for carrying out or giving effect to
this Act.
(2) Without limiting subsection (1), the regulations may:
(a) amend the lists of countries in the Schedules, but so that a country
appears in only one Schedule; and
(b) set out the text of extradition treaties; and
(c) make any modifications to this Act that are necessary to give effect to
an extradition treaty.
(3) A reference to a country listed in a Schedule includes a reference to a country
listed in the Schedule because of regulations made under paragraph (2)(a).
62 Transitional
(1) In this section:
“current extradition request” means an extradition request under the old
Act that has not been finalised.
“old Act” means the Imperial Acts known as the Extradition Acts, 1870 to
1935 as in force in Tuvalu immediately before the commencement of this Act.
(2) In spite of the fact that the old Act no longer has effect in Tuvalu, a current
extradition request that was started before the commencement of this Act is to
continue to be dealt with under the old Act.
(3) However, nothing in this section prevents a country from making a fresh
extradition request under this Act in place of a current extradition request.
63 Exclusion of other laws
(1) This Act replaces all former laws relating to extradition in force in Tuvalu
immediately before the commencement of this Act, whether those laws were
in force because of legislation of Tuvalu or because of the actions of a former
governing power of Tuvalu.
Section 63 CAP. 7.24 Extradition Act
2008 Revised Edition Page 42
(2) In particular, the following Acts cease to have effect in Tuvalu:
(a) the Imperial Acts known as the Extradition Acts, 1870 to 1935; and
(b) the Imperial Act known as the Fugitive Offenders Act, 1881; and
(c) any other laws relating to extradition of persons to and from Tuvalu
that were in force in any part of Tuvalu immediately before the
commencement of this Act.
(3) In spite of subsection (2):
(a) an Order in Council made under the Extradition Acts, 1870 to 1935 that
is expressed to extend to Tuvalu continues in force in Tuvalu by virtue
of this subsection; and
(b) Tuvalu is taken to have an extradition treaty with a country mentioned
in an Order in Council or a successor to that country.
(4) An extradition treaty:
(a) to which Tuvalu was a party; or
(b) that otherwise bound Tuvalu;
immediately before the commencement of this Act remains in force and is
taken to be an extradition treaty for the purpose of this Act.
Extradition Act CAP. 7.24 SCHEDULE 1
2008 Revised Edition
Page 43
SCHEDULES
SCHEDULE 1
COMMONWEALTH COUNTRIES
(Section 4)
Anguilla Malaysia
Antigua and Barbuda Maldives
Australia Malta
Bahamas Mauritius
Bangladesh Montserrat
Barbados Mozambique
Belize Namibia
Bermuda New Zealand
Botswana Nigeria
British Antarctic Territory Pakistan
British Indian Ocean Territory Pitcairn Islands
British Virgin Islands St Helena and Dependencies
Brunei Darussalam St Kitts and Nevis
Cameroon St Lucia
Canada St Vincent and the Grenadines
Cayman Islands Seychelles
Cyprus Sierra Leone
Cyprus (Sovereign Base Areas of
Akrotiri and Dhekelia)
Singapore
Dominica South Georgia and South Sandwich
Islands
Falkland Islands Sri Lanka
The Gambia South Africa
SCHEDULE 1 CAP. 7.24 Extradition Act
2008 Revised Edition Page 44
Ghana Sri Lanka
Gibraltar Swaziland
Grenada Tanzania
Guyana Trinidad and Tobago
India Turks and Caicos Islands
Jamaica Uganda
Kenya United Kingdom of Great Britain and
Northern Ireland
Lesotho Zambia
Malawi Zimbabwe
Extradition Act CAP. 7.24 SCHEDULE 2
2008 Revised Edition
Page 45
SCHEDULE 2
PACIFIC ISLAND COUNTRIES
(Section 6)
Cook Islands Nauru Solomon Islands
Federated States of Micronesia Niue Tonga
Fiji Palau Tuvalu
Kiribati Papua New Guinea Vanuatu
Marshall Islands Western Samoa
SCHEDULE 3 CAP. 7.24 Extradition Act
2008 Revised Edition Page 46
SCHEDULE 3
TREATY COUNTRIES
(Section 4)
Argentina Luxemburg
Belgium Mexico
Bosnia and Herzegovina Monaco
Chile Nicaragua
Columbian Norway
Croatia Panama
Cuba Paraguay
Denmark Peru
Ecuador Portugal
Federal Republic of Yugoslavia Rumania
Former Yugoslav Republic of
Macedonia
San Marino
France Slovenia
Greece Spain
Guatemala Sweden
Haiti Switzerland
Hungary Thailand
Iceland United States of America
Italy Uruguay
Liberia
Extradition Act CAP. 7.24 SCHEDULE 4
2008 Revised Edition
Page 47
SCHEDULE 4
FORMS OF WARRANTS
Form 1
PROVISIONAL ARREST WARRANT - GENERAL
(Section 8)
TUVALU
Provisional Arrest Warrant
TO all police officers:
An application has been made to me on behalf of [requesting country] for the issue of a
provisional warrant for the arrest of [name of person].
I am satisfied, on the basis of the documents produced to me on behalf of [requesting
country], that:
[name of person] is in, or on his or her way to, Tuvalu; and
[requesting country] intends to make a formal request for the extradition of [name of
person]; and
the offence for which the extradition of [name of person] is sought is an extradition
offence; and
[requesting country] is an extradition country.
NOW THEREFORE I, [name and designation of magistrate], under section 8 of the
Extradition Act, authorise and request you to arrest [name of person] and bring him/her
before a magistrate in Tuvalu as soon as practicable to be dealt with according to law.
DATED
Signature and title of Magistrate issuing warrant
SCHEDULE 4 CAP. 7.24 Extradition Act
2008 Revised Edition Page 48
Form 2
PROVISIONAL ARREST WARRANT – EXTRADITION TO PACIFIC ISLAND
COUNTRY
(Section 28)
TUVALU
Provisional Arrest Warrant
TO all police officers:
An application has been made to me on behalf of [Pacific Island country] for the issue of a
provisional warrant for the arrest of [name of person].
I am satisfied, on the basis of the documents produced to me on behalf of [Pacific Island
country], that:
[name of person] is in, or on his or her way to, Tuvalu; and
an original warrant for the arrest of [name of person] has been issued in [Pacific Island
country] but the warrant is not available in Tuvalu; and
it is reasonable in the circumstances to issue a warrant for the arrest of [name of person].
NOW THEREFORE I, [name and designation of magistrate], under section 28 of the
Extradition Act, authorise and request you to arrest [name of person] and bring him/her
before a magistrate in Tuvalu as soon as practicable to be dealt with according to law.
DATED
Signature and title of Magistrate issuing warrant
Extradition Act CAP. 7.24 SCHEDULE 4
2008 Revised Edition
Page 49
Form 3
SURRENDER WARRANT - GENERAL
(Section 20)
TUVALU
Surrender Warrant
TO all police officers:
I, [name of Prime Minister], Prime Minister of Tuvalu, have decided under section 19 of
the Extradition Act that [name of person] is to be surrendered to [requesting country] for
the offence of [specify each offence for which the person is to be surrendered].
NOW THEREFORE I, [name of Prime Minister], under section 19(5) of the Extradition
Act:
require any person who has custody of [name of person] to hand the person over to the
police officer who has this warrant; and
authorise you to bring [name of person] to [name of place in Tuvalu] for the purpose of
handing [name of person] over to the custody of [name and title of foreign escort officer], a
person authorised by [requesting country] to escort [name of person] to [requesting
country]; and
authorise you to hold [name of person] in custody for so long as is necessary to hand
him/her over to the foreign escort officer; and
authorise [name and title of foreign escort officer] to transport [name of person] out of
Tuvalu
DATED
Signature of Prime Minister
SCHEDULE 4 CAP. 7.24 Extradition Act
2008 Revised Edition Page 50
Form 4
TEMPORARY SURRENDER WARRANT - GENERAL
(Section 21)
TUVALU
Temporary Surrender Warrant
TO all police officers:
I, [name of Prime Minister], Prime Minister of Tuvalu, have decided under section 19 of
the Extradition Act that [name of person] is to be surrendered to [requesting country] for
the offence of [specify each offence for which the person is to be surrendered].
[name of person]: is serving a custodial sentence in Tuvalu; and has not been convicted of
the offence(s) for which his/her surrender is sought.
I am satisfied that:
[requesting country] has given an adequate undertaking that [name of person] will be given
a speedy trial in [requesting country] and will be returned to Tuvalu after the trial; and
adequate provision has been made for [name of person]:to travel to [requesting country]
and to return to Tuvalu.
NOW THEREFORE I, [name of Prime Minister], under section 19(5) of the Extradition
Act 2002: require any person who has custody of [name of person] to hand the person over
to the police officer who has this warrant; and
authorise you to bring [name of person] to [name of place in Tuvalu] for the purpose of
handing [name of person] over to the custody of [name and title of foreign escort officer], a
person authorised by [requesting country] to escort [name of person] to [requesting
country]; and
authorise you to hold [name of person] in custody for so long as is necessary to hand
him/her over to the foreign escort officer; and authorise [name and title of foreign escort
officer] to transport [name of person] out of Tuvalu
DATED
Signature of Prime Minister
Extradition Act CAP. 7.24 SCHEDULE 4
2008 Revised Edition
Page 51
Form 5
SURRENDER WARRANT – EXTRADITION TO PACIFIC ISLAND COUNTRY
(Section 36 (3))
TUVALU
Surrender Warrant
TO all police officers:
I, [name and title of magistrate], have decided under section 36 of the Extradition Act that
[name of person] is to be surrendered to [Pacific Island country] for the offence of [specify
each offence for which the person is to be surrendered].
NOW THEREFORE I, [name of Magistrate], under section 36(3) of the Extradition Act:
order that [name of person] be surrendered to [Pacific Island country]; and
order that [name of person] be committed to prison until he/she is surrendered to [Pacific
Island country]; and
require any person who has custody of [name of person] to hand the person over to the
police officer who has this warrant; and
authorise you to bring [name of person] to [name of place in Tuvalu] for the purpose of
handing [name of person] over to the custody of [name and title of foreign escort officer], a
person authorised by [Pacific Island country] to escort [name of person] to [Pacific Island
country]; and
authorise you to hold [name of person] in custody for so long as is necessary to hand
him/her over to the foreign escort officer; and
authorise [name and title of foreign escort officer] to transport [name of person] out of
Tuvalu
DATED
Signature and title of Magistrate issuing warrant
_______________________
SCHEDULE 4 CAP. 7.24 Extradition Act
2008 Revised Edition Page 52
Form 6
TEMPORARY SURRENDER WARRANT – EXTRADITION TO PACIFIC ISLAND
COUNTRY
(Section 39)
TUVALU
Temporary Surrender Warrant
TO all police officers:
I, [name of Prime Minister], Prime Minister of Tuvalu, have decided under section 39 of
the Extradition Act that [name of person] is to be temporarily surrendered to [Pacific
Island country] for the offence of [specify each offence for which the person is to be
surrendered].
[name of person]: is serving a custodial sentence in Tuvalu; and has not been convicted of
the offence(s) for which his/her surrender is sought.
I am satisfied that:
[Pacific Island country] has given an adequate undertaking that [name of person] will be
given a speedy trial in [Pacific Island country] and will be returned to Tuvalu after the
trial; and adequate provision has been made for [name of person]:to travel to [Pacific
Island country] and to return to Tuvalu.
NOW THEREFORE I, [name of Prime Minister], under section 39 of the Extradition Act:
require any person who has custody of [name of person] to hand the person over to the
police officer who has this warrant; and
authorise you to bring [name of person] to [name of place in Tuvalu] for the purpose of
handing [name of person] over to the custody of [name and title of foreign escort officer], a
person authorised by [requesting country] to escort [name of person] to [requesting
country]; and
authorise you to hold [name of person] in custody for so long as is necessary to hand
him/her over to the foreign escort officer; and authorise [name and title of foreign escort
officer] to transport [name of person] out of Tuvalu
DATED
Signature of Prime Minister
Extradition Act CAP. 7.24 ENDNOTES
2008 Revised Edition
Page 53
ENDNOTES
1 Act 4 of 2004
2 See LN 5/2004
3 See LN 5/2004
