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Supplementary Treaty to the Treaty between Canada and the Federal Republic of Germany concerning Extradition [2004] CATSer 18 (23 October 2004)

E104859

SUPPLEMENTARY TREATY TO THE TREATY BETWEEN CANADA AND THE FEDERAL REPUBLIC OF GERMANY CONCERNING EXTRADITION

CANADA AND THE FEDERAL REPUBLIC OF GERMANY,

DESIRING to make more effective the Treaty of July 11th, 1977 between Canada and the Federal Republic of Germany concerning Extradition (hereinafter referred to as "the Extradition Treaty");

REAFFIRMING their respect for each other's legal systems and judicial institutions,

HAVE AGREED as follows:

ARTICLE 1

Article I of the Extradition Treaty is amended to read as follows:

"ARTICLE I

UNDERTAKING TO EXTRADITE

(1) The Contracting Parties undertake, subject to the provisions and conditions prescribed in this treaty, to extradite to each other any person found within the territory of the requested state who is wanted in the requesting state for the purpose of prosecution or of imposing or carrying out a sentence.

(2) If the offence for which extradition is requested has been committed outside the territory of the requesting state, extradition shall be granted if the person whose extradition is requested is a national of the requesting state or if in similar circumstances the requested state would have jurisdiction. In other cases the requested state may, in its discretion, grant extradition."

ARTICLE 2

(1) Article II, paragraph (1) of the Extradition Treaty is amended to read as follows:

"(1) Extradition shall be granted only in respect of any conduct that constitutes an offence punishable under the law of both Contracting Parties."

(2) Article II, paragraph (3) of the Extradition Treaty is deleted.

(3) Article II, paragraph (4) of the Extradition Treaty becomes Article II, paragraph (3).

(4) Article II, paragraph (5) of the Extradition Treaty becomes Article II, paragraph (4) and is amended to read as follows:

"(4) In determining what is an extraditable offence, the fact that an offence is described differently by the law of the Contracting Parties shall be irrelevant."

(5) The Schedule to the Extradition Treaty is hereby deleted.

ARTICLE 3

Article III , paragraph (2) of the Extradition Treaty is amended to read as follows:

" (2) For the purpose of this treaty the following offences shall be deemed not to be offences within the meaning of paragraph (1) sub-paragraph (a):

(a) an offence for which both Contracting Parties have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their competent authorities for decision as to prosecution;

(b) murder, manslaughter, maliciously wounding, or inflicting grievous bodily harm;

(c) kidnapping, abduction, or any form of unlawful detention, including taking a hostage;

(d) placing or using an explosive, incendiary or destructive device capable of endangering life, or of causing grievous bodily harm, or of causing substantial property damage."

ARTICLE 4

Article VI paragraph (2) of the Extradition Treaty is amended to read as follows:

" (2) Extradition may be refused if final judgment has been rendered in a third state in respect of the offence for which the person's extradition is requested and,

(a) the judgment resulted in the person's acquittal; or

(b) the term of imprisonment or other deprivation of liberty to which the person was sentenced has been completely enforced or has been the subject of a pardon or an amnesty."

ARTICLE 5

Article XIII of the Extradition Treaty is amended to read as follows:

"ARTICLE XIII

CHANNELS OF COMMUNICATION

Requests for extradition and any subsequent correspondence shall be communicated between the departments of justice of the Contracting Parties; however, use of the diplomatic channel is not excluded."

ARTICLE 6

Article XIV of the Extradition Treaty is amended to read as follows:

"ARTICLE XIV

EXTRADITION 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 description of the offence in respect of which extradition is requested including the date and place of its commission unless this information appears in the warrant of arrest or in the sentence;

(c) the text of all provisions of the law of the requesting state applicable to the offence; and

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

(2) A request for extradition that relates to a person wanted for the purpose of prosecution 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 state so requires, evidence that would justify committal for trial if the conduct had been committed in the requested state. For this purpose, a summary setting out the facts of the case and the corresponding elements of evidence, including evidence of identity of the offender, whether or not the evidence was gathered or obtained in the requesting state, shall be admitted in evidence as proof of the facts contained therein, whether or not this evidence would otherwise be admissible under the law of the requested state, provided that the summary is signed by a judicial authority or a prosecutor who certifies that the evidence described in the summary was obtained in accordance with the law of the requesting state and is available. The requesting state may include as part of the summary of the facts any statements, reports, reproductions or other useful documentation.

(3) A request for extradition that relates to a person who has been convicted shall be supported by:

(a) a copy or a record of the judgment and a confirmation that it is enforceable; and

(b) if the judgment covers only the conviction, a copy of the order of arrest; or

(c) if the judgment covers both conviction and sentence, a statement showing how much of the sentence has not been 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 or a public official of the requesting state shall be admitted as evidence in extradition proceedings in the requested state 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."

ARTICLE 7

Article XV of the Extradition Treaty is amended to read as follows:

"ARTICLE XV

FORM OF SUPPORTING DOCUMENTS

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

ARTICLE 8

The text of Article XVI of the Extradition Treaty is renumbered to become Article XVI, paragraph (2), and the following text is inserted as Article XVI, paragraph (1):

" (1) If the information provided by the requesting state is insufficient for the requested state to make a decision under this treaty, the requested state shall ask for the necessary additional information and may set a time limit for the submission of that information."

ARTICLE 9

Article XVII, paragraph (1) of the Extradition Treaty is amended to read as follows:

" (1) In case of urgency, the competent authorities of the requesting state may request the provisional arrest of the person sought, either through a channel established by Article XIII or through the facilities of the International Criminal Police Organization (Interpol)."

Article XVII, paragraphs (4) and (5) of the Extradition Treaty are amended to read as follows:

"(4) The requesting state shall have sixty days from the date of the apprehension of the person claimed to make the request for extradition.

(5) If the request for extradition has not been received within the said period of sixty days or such further time as a judge of the requested state may direct, the person claimed may be discharged from custody."

ARTICLE 10

After Article XVII of the Extradition Treaty the following Article XVII bis is included:

"ARTICLE XVII BIS

SIMPLIFIED EXTRADITION

The requested state may grant extradition of a person sought pursuant to the provisions of this treaty, notwithstanding that the requirements of Article XIV have not been compiled with, provided that the person sought consents."

ARTICLE 11

Article XX of the Extradition Treaty is amended to read as follows:

"ARTICLE XX

POSTPONED OR TEMPORARY SURRENDER

(1) When the person sought is being proceeded against or is serving a sentence in the requested state for an offence other than that for which extradition is requested, the requested state may finally 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 state shall inform the requesting state of any postponement.

(2) To the extent permitted by its law, where a person has been found extraditable, the requested state may temporarily surrender the person sought for the purpose of prosecution to the requesting state in accordance with conditions to be determined between the Contracting Parties. A person who is returned to the requested state following a temporary surrender may be finally surrendered to serve any sentence imposed, in accordance with the provisions of this treaty."

ARTICLE 12

In Article XXII, paragraph (2) of the Extradition Treaty the words "shall be submitted through the diplomatic channel and" are deleted.

ARTICLE 13

In Article XXVI of the Extradition Treaty the words "certified in accordance with the law of the requesting state" are replaced by "into an official language of the requested state".

ARTICLE 14

Article XXIX of the Extradition Treaty is amended to read as follows:

"ARTICLE XXIX

DEFINITION

For the purpose of this treaty "sentence" means any order of a criminal court whereby deprivation of liberty or any detention involving deprivation of liberty in addition to or instead of a penalty is imposed on a person."

ARTICLE 15

The following Article XXIX bis is included after Article XXIX of the Extradition Treaty:

"ARTICLE XXIX BIS

PERSONAL DATA

(1) Personal data, hereinafter referred to as data, shall be understood to be particulars on the personal and factual situation of an identified or identifiable natural person.

(2) Data transmitted on the basis of this Treaty shall be used for the purposes for which the data were transmitted and on the conditions determined by the transmitting Party in the individual case. In addition, such data may be used for the following purposes:

(a) for the prevention and prosecution of offences in respect of which data may be transmitted pursuant to the Treaty of May 13, 2002, between Canada and the Federal Republic of Germany on Mutual Assistance in Criminal Matters;

(b) for non-criminal court proceedings and administrative proceedings which are related to the use for which the data were originally requested or related to the use outlined in sub-paragraph (a); and

(c) to ward off substantial dangers to public security.

Use of the data for other purposes requires the prior consent of the Party transmitting the data concerned.

(3) Subject to the domestic legal provisions of each Party, the following provisions shall apply to the transmission and use of data:

(a) Upon request, the Party which has received the data shall identify the data received, inform the transmitting Party of the use made of the data and the results achieved therefrom;

(b) The Parties shall carefully handle data transmitted under this Treaty and pay particular attention to the accuracy and completeness of such data. Only data that relate to the request shall be transmitted. If it appears that incorrect data have been transmitted or that data that should not have been transmitted were transmitted, the Party that has received the data shall be notified without delay. The Party that has received the data shall rectify or correct any errors or return the data;

(c) The Parties shall keep records in appropriate form concerning the transmission and receipt of data;

(d) The Parties shall afford protection of the data transmitted against unauthorized access, unauthorized alteration and unauthorized publication."

ARTICLE 16

RETROSPECTIVITY

This Supplementary Treaty shall apply in all cases where the request for extradition is made after its entry into force regardless of whether the offence was committed before or after that date.

ARTICLE 17

Article XXXI of the Extradition Treaty is deleted.

ARTICLE 18

FINAL CLAUSES

(1) This Supplementary Treaty shall form an integral part of the Extradition Treaty.

(2) This Supplementary Treaty shall be subject to ratification and the instruments of ratification shall be exchanged as soon as possible. It shall enter into force one month after the exchange of instruments of ratification. It shall be subject to termination in the same manner as the Extradition Treaty.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, have signed this Supplementary Treaty.

DONE in two copies at Mont-Tremblant, this 13th day of May 2002, in the English, French and German languages, each version being equally authentic.

Martin Cauchon

FOR CANADA

Georg Wilhelm Birgelen

Eckhart Pick

FOR THE FEDERAL REPUBLIC OF GERMANY