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Treaty on Extradition between Canada and the Republic of Korea [1995] CATSer 1 (29 January 1995)

E101342 - CTS 1995 No. 22



TREATY ON EXTRADITION BETWEEN CANADA AND THE REPUBLIC OF KOREA


CANADA AND THE REPUBLIC OF KOREA,

DESIRING to make more effective their cooperation in the prevention and suppression of crime by concluding a Treaty on Extradition;

AFFIRMING their respect for each other's legal systems and judicial institutions;

HAVE AGREED as follows:

ARTICLE 1

Obligation to Extradite

Each Contracting Party agrees to extradite to the other, in accordance with the provisions of this Treaty, any person who is wanted for prosecution or the imposition or enforcement of a sentence in the Requesting Party for an extraditable offence.

ARTICLE 2

Extraditable Offences

1. For the purposes of this Treaty, extradition shall be granted for conduct which constitutes an offence under the laws of both Contracting Parties that is punishable by deprivation of liberty for a period of at least one year or by a more severe penalty.

2. Where the request for extradition relates to a person sentenced to deprivation of liberty by a court of the Requesting Party for any extraditable offence, extradition shall be granted only if a period of at least four months of the sentence remains to be served.

3. For the purpose of this Article, in determining whether conduct is an offence against the law of the Requested Party:

(a) it shall not matter whether the laws of the Contracting Parties place the conduct constituting the offence within the same category of offence or denominate the offence by the same terminology;

(b) the totality of the conduct alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting Parties, the constituent elements of the offence differ.

4. An offence of a fiscal character, including an offence against a law relating to taxation, customs duties, foreign exchange control or any other revenue matter, is an extraditable offence. Provided that the conduct for which extradition is sought is an offence in the Requested Party, extradition may not be refused on the ground that the law of the Requested Party does not impose the same kind of tax or duty or does not contain a tax, duty, customs, or exchange regulation of the same kind as the law of the Requesting Party.

5. Where the offence has been committed outside the territory of the Requesting Party extradition shall be granted where the law of the Requested Party provides for the punishment of an offence committed outside its territory in similar circumstances. Where the law of the Requested Party does not so provide, the Requested Party may, in its discretion, grant extradition.

6. Extradition may be granted pursuant to the provisions of this Treaty in respect of an offence provided that:

(a) it was an offence in the Requesting Party at the time of the conduct constituting the offence; and

(b) the conduct alleged would, if it had taken place in the territory of the Requested Party at the time of the making of the request for extradition, have constituted an offence against the law in force in the territory of the Requested Party.

7. If the request for extradition relates to a sentence of both imprisonment and a pecuniary sanction, the Requested Party may grant extradition for the enforcement of both the imprisonment and the pecuniary sanction.

8. If the request for extradition relates to a number of offences, each of which is punishable under the laws of both Parties, but some of which do not meet the other requirements of paragraphs 1 and 2, the Requested Party may grant extradition for such offences provided that the person is to be extradited for at least one extraditable offence.

ARTICLE 3

Mandatory Refusal of Extradition

Extradition shall not be granted under this Treaty in any of the following circumstances:

1. When the offence for which extradition is requested is considered by the Requested Party to be a political offence. For the purpose of this paragraph, political offence shall not include:

(a) the taking or attempted taking of the life of a Head of State, a Head of Government, or a member of his or her family;

(b) an offence for which each Contracting Party has the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to its competent authorities for the purpose of prosecution;

(c) murder, manslaughter or other culpable homicide, malicious wounding or inflicting grievous bodily harm;

(d) an offence involving kidnapping, abducting, or any form of unlawful detention, including taking a hostage;

(e) an offence involving the use of automatic firearms, or the placing or use of explosives, incendiaries or destructive devices or substances capable of endangering life or of causing grievous bodily harm; and

(f) an attempt or conspiracy to commit, or counselling the commission of any of the foregoing offences, or aiding or abetting a person who commits or attempts to commit such offences.

2. When there are substantial grounds for believing that a request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person's belonging to a race, religion, nationality or holding certain political beliefs or that person's position may be prejudiced for any of those reasons;

3. When final judgment has been passed in the territory of the Requested Party upon the person sought in respect of the offence for which the person's extradition is sought;

4. When the prosecution or the punishment for the offence for which extradition is requested would be barred by prescription under the law of the Requested Party.

ARTICLE 4

Discretionary Refusal of Extradition

Extradition may be refused under this Treaty in any of the following circumstances:

1. If the offence for which extradition is requested is subject to the jurisdiction of the Requested Party and that Party will prosecute that offence. In such a case, before refusing, the Requested Party, after consulting with the Requesting Party, shall decide whether to extradite the person or submit the case to its competent authorities for the purpose of prosecution. In making its decision, the Requested Party shall consider all relevant factors, including but not limited to:

- the time and place of commission of each offence or place of intended commission;

- the place where injury occurred or was intended to occur;

- the respective interests of the Contracting Parties;

- the nationality of the person and victim;

- the habitual place of residence of the person; and

- the availability and location of the evidence;

2. When the person sought is being prosecuted by the Requested Party for the offence for which extradition is requested or if the competent authorities of the Requested Party have decided, in accordance with the law of that Party, not to prosecute or to terminate the prosecution that has been instituted;

3. When the offence carries the death penalty under the law of the Requesting Party, unless that Party undertakes that the death penalty will not be sought, or if a sentence of death is imposed it will not be carried out;

4. When, in exceptional cases, the Requested Party while also taking into account the seriousness of the offence and the interests of the Requesting Party deems that, because of the personal circumstances of the person sought, the extradition would be incompatible with humanitarian considerations;

5. When the person sought has been finally acquitted or convicted in a third State for the same offence for which extradition is requested and, if convicted, the sentence imposed has been fully enforced or is no longer enforceable;

6. When the person sought was a young offender within the meaning of the law of the Requested Party at the time of the offence and the law that will apply to that person in the Requesting Party is not consistent with the fundamental principles of the law of the Requested Party dealing with young offenders.

ARTICLE 5

Extradition of Nationals

1. Extradition may be refused where the person whose extradition is requested is a national of the Requested Party.

2. Where a party refuses extradition pursuant to paragraph 1 of this Article, it shall submit the case to its competent authorities in order that proceedings for the prosecution of the person in respect of all or any of the offences for which extradition has been sought may be taken. That Party shall inform the Requesting Party of any action taken and the outcome of any prosecution. Nationality shall be determined at the time of the commission of the offence for which extradition is requested.

ARTICLE 6

Channels of Communication

Requests for extradition and any subsequent correspondence shall be communicated through the diplomatic channel.

ARTICLE 7

The Request and Supporting Documents

1. All requests for extradition shall be in writing and supported by:

(a) information concerning the identity, and if available, nationality, probable location of the person sought, a physical description, photograph and fingerprints;

(b) a summary of the facts of the case, including the time and location of the offence;

(c) the texts of the laws describing the essential elements and the designation of the offence for which extradition is requested, the punishment for the offence, and any period of prescription relating to the prosecution or the execution of the punishment for the offence; and

(d) a statement of the jurisdiction of the Requesting Party over the offence if it was committed outside its territory.

2. A request for extradition which relates to a person accused of an offence or convicted in absentia shall be supported by:

(a) a copy of the order of arrest; and

(b) in the event that the law of the Requested Party so requires, evidence that would justify committal for extradition.

i) For the purpose of Paragraph 2(b), a summary of the facts of the case setting out the evidence, including evidence of the identity of the offender shall be admitted in evidence as proof of the facts contained therein provided that a prosecutor certifies that the evidence described in the summary was obtained in accordance with the law of the Requesting Party.

(ii) The summary of facts may include any statements, reports, reproductions or other useful documentation.

(iii) The summary of facts may contain evidence gathered in the Requesting Party or elsewhere and shall be admitted in evidence whether or not such evidence would otherwise be admissible under the law of the Requested Party.

3. A request for extradition which relates to a person who has been convicted shall be supported by:

(a) copy of the judgment of conviction or, if the person has been convicted but not yet sentenced, a statement by a judicial authority to that effect;

(b) a copy or a statement of the charge upon which the person has been convicted;

(c) a copy of the order of arrest or a statement that the person is subject to detention on the basis of the judgement of conviction; and

(d) if the sentence has been pronounced, a statement of the sentence or the remainder to be served.

4. All documents and copies thereof submitted in support of a request for extradition and appearing to have been certified, issued or signed by a judicial authority, a prosecutor or other public official of the Requesting Party shall be admitted as evidence in extradition proceedings in the Requested Party without having to be taken under oath or affirmation and without proof of the signature or of the official character of the person appearing to have signed them.

5. Any translation of documents submitted in support of a request for extradition provided by the Requesting Party shall be admitted for all purposes in extradition proceedings.

ARTICLE 8

Authentication of Supporting Documents

No authentication or further certification of documents submitted in support of the request for extradition shall be required.

ARTICLE 9

Language

All documents submitted in accordance with this Treaty shall be in or translated into an official language of the Requested Party, to be specified by the Requested Party in each case.

ARTICLE 10

Additional Information

If the Requested Party considers that the information furnished in support of a request for extradition is not sufficient in accordance with this Treaty to enable extradition to be granted, that Party may request that additional information be furnished within such time as it specifies.

ARTICLE 11

Simplified Extradition

Extradition of a person may be granted pursuant to the provisions of this Treaty notwithstanding that the requirements of Article 7 have not been complied with provided that the person sought consents to being extradited.

ARTICLE 12

Provisional Arrest

1. In case of urgency, a Contracting Party may apply through the facilities of the International Criminal Police Organization (INTERPOL) or by any other means for the provisional arrest of the person sought. The application may be transmitted by post, by telegraph or by any means affording a record in writing.

2. The application for provisional arrest shall include:

(a) information concerning the identity, and if available, nationality, probable location of the person sought, and a physical description;

(b) a statement that extradition will be requested;

(c) the name, date and place of the offence and a brief description of the facts of the case;

(d) a statement indicating that an order of arrest exists or a conviction was pronounced with the date, place and issuing authority; and

(e) a statement indicating the maximum deprivation of liberty that may be imposed or that was imposed and, where applicable, that remains to be served.

3. On receipt of an application for provisional arrest the Requested Party shall, subject to its law and being satisfied that the requirements of paragraphs 1 and 2 are met, take the necessary steps to secure the arrest of the person sought and the Requesting Party shall be promptly notified of the result of its request.

4. Provisional arrest shall be terminated if, within a period of sixty days after the apprehension of the person sought, the formal request for extradition and the supporting documents have not been received.

5. The release of a person pursuant to paragraph 4 of this Article shall not prevent the institution or continuation of extradition proceedings if the request and the supporting documents are received subsequently.

ARTICLE 13

Conflicting Requests

1. Where requests are received from two or more States for the extradition of the same person either for the same offence or for different offences, the Requested Party shall determine to which of those States the person is to be extradited and shall notify those States of its decision.

2. In determining to which State a person is to be extradited, the Requested Party shall have regard to all the relevant circumstances, and, in particular, to:

(a) if the requests relate to different offences, the relative seriousness of those offences;

(b) the time and place of commission of each offence;

(c) the respective dates of the requests;

(d) the nationality of the person sought; and

(e) the ordinary place of residence of the person.

ARTICLE 14

Surrender

1. The Requested Party shall, as soon as a decision on the request for extradition has been made, communicate that decision to the Requesting Party through the diplomatic channel. Reasons shall be given for any complete or partial refusal of a request for extradition.

2. Where possible under its law, the Requested Party shall surrender the person sought to the appropriate authorities of the Requesting Party at a location in the territory of the Requested Party acceptable to both Parties.

3. The Requesting Party shall remove the person from the territory of the Requested Party within such reasonable period as the Requested Party specifies and, if the person is not removed within that period, the Requested Party may set that person at liberty and may refuse extradition for the same offence.

4. If circumstances beyond its control prevent a Contracting Party from surrendering or removing the person to be extradited, it shall notify the other Contracting Party. The two Contracting Parties shall mutually decide upon a new date of surrender or removal, and the provisions of paragraph 3 of this Article shall apply.

ARTICLE 15

Postponed or Temporary Surrender

1. When the person sought is being proceeded against or is serving a sentence in the Requested Party for an offence other than that for which extradition is requested, the Requested Party may surrender the person sought or postpone surrender until the conclusion of the proceedings or the service of the whole or any part of the sentence imposed. The Requested Party shall inform the Requesting Party of any postponement.

2. To the extent permitted by its law, where a person has been found extraditable, the Requested Party may temporarily surrender the person sought for the purposes of prosecution to the Requesting Party in accordance with conditions to be determined between the Contracting Parties. A person who is returned to the Requested Party following a temporary surrender may be finally surrendered to serve any sentence imposed, in accordance with the provisions of this Treaty.

ARTICLE 16

Surrender of Property

1. To the extent permitted under the law of the Requested Party and subject to the rights of third parties, which shall be duly respected, all property found in the territory of the Requested Party that has been acquired as a result of the offence or may be required as evidence shall, if the Requesting Party so requests, be surrendered if extradition is granted or the person consents to extradition.

2. Subject to paragraph 1 of this Article, the above-mentioned property shall, if the Requesting Party so requests, be surrendered to the Requesting Party even if the extradition cannot be carried out owing to the death or escape of the person sought.

3. Where the law of the Requested Party or the rights of third parties so require, any articles so surrendered shall be returned to the Requested Party free of charge if that Party so requests.

ARTICLE 17

Rule of Specialty

1. Subject to paragraph 4 of this Article, a person extradited under this Treaty shall not be detained or prosecuted, nor be subject to any other restriction of personal liberty in the Requesting Party for any offence committed before the surrender other than:

(a) an offence for which extradition was granted; or

(b) any other extraditable offence if the Requested Party consents.

2. A request for the consent of the Requested Party under this Article shall, upon the request of the Requested Party, be accompanied by the documents mentioned in Article 7 as well as a record of any statement made by the extradited person in respect of the offence concerned.

3. If the charge for which the person was extradited is subsequently changed, that person may be prosecuted or sentenced provided the offence under its new description is:

(a) based on substantially the same facts contained in the extradition request and its supporting documents; and

(b) punishable by the same maximum penalty as, or a lesser maximum penalty than, the offence for which that person was extradited.

4. Paragraph 1 of this Article does not apply if the person extradited has had an opportunity to leave the Requesting Party and has not done so within forty-five (45) days of final discharge in respect of the offence for which that person was extradited or if the person has voluntarily returned to the Requesting Party after having left it.

ARTICLE 18

Re-extradition to a Third State

1. Where a person has been surrendered to the Requesting Party that Party shall not extradite the person to any third State for an offence committed before that person's surrender unless:

(a) the Requested Party consents to that extradition; or

(b) the person has had an opportunity to leave the Requesting Party and has not done so within forty-five (45) days of final discharge in respect of the offence for which that person was surrendered by the Requested Party or if the person has voluntarily returned to the Requesting Party after having left it.

2. The Requested Party may request the production of the documents submitted by the third State in relation to any consent pursuant to sub-paragraph 1(a) of this Article.

ARTICLE 19

Transit

To the extent permitted by its law, transit through the territory of one the Contracting Parties shall be granted on a request in writing made through diplomatic channels by the other Contracting Party. The Requested Party may request the information referred to in paragraph 2 of Article 12.

ARTICLE 20

Expenses

1. The Requested Party shall make all necessary arrangements for and meet the cost of any proceedings arising out of a request for extradition including a prosecution as a result of a refusal to grant extradition on the basis of nationality.

2. The Requested Party shall bear the expenses incurred in its territory in the arrest of the person whose extradition is sought, and in the maintenance in custody of the person until surrender to the Requesting Party.

3. The Requesting Party shall bear the expense incurred in conveying the person extradited from the territory of the Requested Party.

ARTICLE 21

Conduct of Proceedings

1. In the case of a request for extradition presented by the Republic of Korea, the Attorney General of Canada shall conduct the extradition proceedings.

2. In the case of a request for extradition presented by Canadian authorities, the extradition proceedings shall be conducted in accordance with the law of the Republic of Korea.

ARTICLE 22

Entry into Force and Termination

1. This Treaty shall enter into force thirty days after the date on which the Contracting Parties have notified each other in writing that their respective requirements for the entry into force of this Treaty have been complied with.

2. This Treaty shall also apply to any offence specified in Article 2 committed before this Treaty enters into force.

3. Either Contracting Party may terminate this Treaty at any time by giving six months' written notice to the other Contracting Party.



IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.

DONE at Ottawa on the 15th day of April, 1994, in duplicate, in English, French and Korean, all texts being equally authentic.

FOR CANADA

Allan Rock

FOR THE REPUBLIC OF KOREA

Kim Doo-Hee


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