When requests for extradition are made to or made by Fiji, the ODPP acts in accordance with the Extradition Act 2003. This Act provides a comprehensive and modern scheme of extradition to respond to all requests from any country, and attempts to overcome many of the issues that stifled and delayed the processing of past extradition requests.
The Extradition Act permits the surrender from Fiji for persons wanted abroad:
- for prosecution;
- to impose a sentence;
- to enforce a sentence already imposed by a court, (section 6(1)); and
- Fiji may facilitate extradition requests from another country on the basis that the other country is a:
Commonwealth country: A member of the British Commonwealth listed on Schedule 1.
Pacific Island Forum country: A member of the Pacific Island Forum listed on Schedule 2.
Extradition Country: A country listed in Schedule 3 with which Fiji has a Treaty.
Comity Country: Any other country not included in the other categories.
A general designation of a requesting country as an ‘extradition country’ under the Act allows such countries the ability to take advantage of the provisions of the Extradition Act notwithstanding the absence of an extradition treaty.
To date, Fiji has entered into bilateral agreements on surrender of fugitive offenders with countries, namely Australia, New Zealand, the United States of America and the United Kingdom. A number of other bilateral treaties which were extended to Fiji by virtue of its former status as a colony of Great Britain arguably are still valid.
Extradition Offence: The Act does not prescribe a list of offences but requires only that it be any offence that carries a sentence of not less than 12 months imprisonment or death, and that if committed in Fiji would attract a similar sentence. ((Section 3(1)).
To constitute an extradition offence, the existence of some act or omission is sufficient ((Section 3(2)).
Foreign revenue and customs offences can be extradition offences, even if it is not an offence in Fiji ((Section 3(4)).
An extradition request may not be approved for reasons set out in section 4, including that the offence is a political one, the purpose is to punish the person because of his or her race, religion, nationality, gender or political opinion, or that surrender may be prejudiced by these considerations; or that the person has already been acquitted, punished or pardoned.
Extradition from Fiji
The Attorney-General of Fiji is responsible for the administration of the Act and for receiving and authorizing requests for extradition.
However, requests for the extradition of a person from Fiji must be sent to the Attorney-General of Fiji through the Ministry of Foreign Affairs and International Cooperation.
An application for a provisional arrest warrant may be made directly through the International Criminal Police Organisation (ICPO) Interpol against a person who is in or is on his/her way to Fiji. The documents that accompany the request must include: (see section 7(2))
- a copy of the arrest warrant;
- description of the fugitive;
- description of the alleged offence;
- text of the law creating the offence, and
- text of the law that prescribes the penalty.
A Magistrate may, after considering the application, issue a provisional arrest warrant if:
- the application is supported by the required documents;
- is satisfied that the offence is an extradition offence, and that;
- the requesting country is an extradition country.
A person arrested under the warrant must be taken before a Magistrate within 48 hours after the arrest, and may be remanded for 42 days unless the Attorney-General issues an Authority to Proceed to the Director of Public Prosecutions (DPP). That period may be extended for a further 42 days.
Countries seeking to send requests for extradition to Fiji are encouraged to note and adopt, if they wish, the exemplars of (Third Party Notes, Letter of Request, Model Certificate Authentication and Model Deposition of Witnesses) shown below.
Consent to Surrender
A person sought may advise the Magistrate that he/she consents to surrender. Where the Magistrate is satisfied that the consent was given voluntarily, the person will be committed to prison without a hearing and will be surrendered after a judge issues a surrender warrant.
After the Attorney-General has issued the Authority to Proceed to the DPP and the Magistrate is satisfied that the parties are ready, the Magistrate will conduct the proceedings. The procedure and rules applied in criminal trials will apply. However, the fugitive and the Magistrate are not entitled to adduce or hear evidence relating to the extradition offence for which he/she has been sought. The general test in an extradition hearing is whether there is sufficient evidence to warrant the extradition of the person sought.
A record of the case method is applied in all cases. The supporting documents required in these proceedings are: (see section 16(1))
- an accurate description of the person sought and other information that may help confirm identity and nationality;
- the text of the law creating the offence, or a statement of the offence;
- the text of the law prescribing the penalty, or a statement of penalty;
- a detailed description of the alleged offence, and
- a detailed description of the alleged offence.
- Where a person has been convicted, original or authenticated copies of the document pronouncing sentence imposed or intended to be imposed; whether the sentence has been served; and on whom the sentence is immediately enforceable.
- After the Magistrate has made a surrender determination, he/she will issue a warrant committing the fugitive to prison to await the Judge’s decision on surrender. The fugitive may ask the High Court to review the Magistrate’s decision within 15 days of the Order.
- A document that is duly authenticated is admissible in extradition proceedings if it is signed by a Judge, Magistrate or appropriate officer; and authenticated by oath and affirmation, and sealed by an official or public seal.
- The person sought or the requesting country may seek to review a Magistrate’s order in the High Court to release or surrender within 15 days of the Order.
After the Magistrate has notified the High Court about the Order to hold a fugitive for surrender, a Judge may issue a surrender warrant in terms of (section 19(1)) or a temporary surrender warrant for the reasons given in (section 20(1)) in accordance with (section 20(2).)
A Judge may refuse to order that a person be surrendered for the reasons set out in (section 18(2).)
Where the person sought has not been duly surrendered after two months and there is no reasonable cause for delay, that person may ask the Judge to release him.
Prosecution Not Extradition
Section 61 applies the aut dedere, aut judicare rule, and the Judge may refuse to order surrender, but instead require that the person be prosecuted and punished in Fiji for the reasons set in (section 61(2).)
Alternatively, the Judge may order that the person be surrendered for trial only, and be returned to Fiji to serve any sentence.
Download exemplars of