Treaty on Extradition between the Socialist Republic of Vietnam and the Democratic Socialist Republic of Sri Lanka 2014

TREATY

ON EXTRADITION BETWEEN THE SOCIALIST REPUBLIC OF VIET NAM AND THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

The Socialist Republic of Viet Nam and the Democratic Socialist Republic of Sri Lanka (hereinafter referred individually to as the Party and collectively as the Parties),

Desiring to provide for more effective cooperation between the two countries in the prevention and suppression of crime, and to facilitate relations between the two countries in the area of extradition by concluding a treaty on extradition,

Have agreed as follows:

ARTICLE 1

Obligation to Extradite

Each Party agrees to extradite to the other Party, in accordance with the provisions of this Treaty and the laws of countries concerned, any person who is found in its territory and sought by the other Party for prosecution, trial, or execution of sentence for an extraditable offence, whether such offence was committed before or after the entry into force of this Treaty.

ARTICLE 2

Extraditable Offences

1. For the purposes of this Treaty, extraditable offences are offences which, at the time of the request, are punishable under the laws of both Parties by an imprisonment for a period of at least one (01) year or by a more severe penalty.

2. An offence shall also be an extraditable offence if it involves an attempt to conspire, aiding or abetting the commission of or being an abettor to, an offence described in paragraph 1 of this Article.

3. Where the request for extradition relates to a person sentenced to imprisonment by a court of the Requesting Party for any extraditable offence, extradition shall be granted only if a period of at least six (06) months of the sentence remains to be served.

4. For the purposes of this Article, in determining whether an offence is an offence against the laws of both Parties:

a) it shall not matter whether the laws of the 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 under the laws of the Parties,

5. Where extradition of a person is sought for an offence against a law relating to taxation, foreign exchange control or other revenue matters, extradition shall not be refused on the grounds that the law of the Requested Party does not impose the same kind of tax or does not contain a tax or exchange regulation of the same kind as the law of the Requesting Party.

6. 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.

7. If the request for extradition refers to several offences, each of which is punishable under the laws of both Parties, but some of which do not fulfil the other conditions set out in paragraphs 1 and 2 of this Article, extradition may be granted for the offences, provided that the person is to be extradited for at least one extraditable offence.

ARTICLE 3

Refusal of Extradition

1. Extradition shall not be granted in any of the following circumstances:

a) the person whose extradition is requested is a citizen of the Requested Party;

b) the person whose extradition is requested cannot be prosecuted due to the lapse of time under the statute of limitations of the Requested Party;

c) the person whose extradition is requested for prosecution has been convicted under a final judgment by a competent court for the conduct to which the request relates or the case has been set aside according to the criminal procedural law of the Requested Party;

d) where the request for extradition relates to more than one offense and each of which is punishable under the law of the Requesting Party but does not fall under Article 2 of this Treaty;

e) an offence for the request of exttadition is in the field of military;

f) in the opinion of the Requested Party, there are reasonable grounds to believe that the request for extradition has been presented with a view to prosecuting or punishing the person sought by reason of race, religion, sex, citizenship, social status, or political opinions.

2. Extradition can be refused in any of the following circumstances:

a) the Requested Party in accordance with its law has jurisdiction over the offence tor which the request for extradition is made. In this case, the competent authority of the Requested Party shall institute proceeding against the person sought;

b) the person whose extradition is requested is being prosecuted in the Requested Party for the offence for which extradition is requested.

3. In the case of refusal of extradition, the Requested Party is required to inform the Requesting Party of this in writing within a reasonable time with reasons for such refusal.

ARTICLE 4

Postponement of Extradition and Temporary Extradition

1. When the person sought is being investigated, prosecuted or has been tried or is serving a sentence in the Requested Party for an offence other than that for which extradition is requested, the Requested Party may postpone the extradition of the person sought until the conclusion of the proceeding or the service of the whole or any part of the sentence imposed. The Requested Party shall inform the Requesting Party of any postponement. When the conditions of the postponement no longer exist, the Requested Party shall inform as soon as practicable the Requesting Party and resume the process for extradition unless otherwise informed by the Requesting Party.

2. When the postponement of extradition refereed to in the paragraph 1 would bar the criminal proceedings due to the lapse of time or create a serious difficulty for the proceedings, the Requested Party may, at the request of the Requesting Party and pursuant to its laws, grant temporary extradition of the person whose extradition is sought.

3. The person whose temporary extradition is granted shall be returned as soon as the criminal proceedings are completed or the mutually agreed time permitted for the request for temporary extradition ends. The Requested Party may extend, upon request, the time period initially agreed, if it deems that reasonable grounds for such extension exist.

ARTICLE 5

Extradition of citizens

1. Neither of the Parties shall be bound to extradite its own citizens under this Treaty.

2. If extradition is refused solely on the basis of the citizenship of the person sought, the Requested Party shall, at the request of the Requesting Party, submit the case to its authorities for prosecution in accordance with the national laws of both Parties,

3. Citizenship shall be determined at the time of the commission of the offence for which extradition is requested.

ARTICLE 6

Extradition Procedures

1. The request for extradition under this Treaty shall be made in writing and exchanged through the Central Authorities defined in Article 17 of this Treaty. The request for extradition shall include the following particulars:

a) date and place of the request;

b) reasons for requesting extradition;

c) name and address of the competent authority requesting extradition;

d) name and address of the competent authority to which the request for extradition is made; and

e) necessary information about the person whose extradition is requested, particularly his or her name, sex, date of birth, citizenship and residence.

2. The request shall be accompanied by the following documents:

a) a statement of facts of the case;

b) a statement of the laws describing the essential elements and the designation of the offence, the punishment for the offence, and the time limit for prosecution or enforcement of the sentence imposed;

c) documents certifying the citizenship and residence of the person whose extradition is requested (if any); and

d) documents which describe the identity and the photo of the person (if available) whose extradition is requested.

3. If the request relates to an accused person, it must also be accompanied by:

a) a copy of the warrant of arrest or detention issued by a competent authority in the Requesting Party; and

b) a document certifying that the person sought is the person to whom the warrant of arrest or detention refers.

4. If the request relates to a person already convicted and sentenced, it shall also be accompanied by:

a) a copy of the judgment of conviction imposed by a court in the Requesting Party; and

b) a statement that the judgment is final and no further proceedings are pending and showing how much of the sentence has not been carried out.

5. The extradition request and supported documents shall be signed and sealed by the competent official and authority of the Requesting Party. The original documents or true copies of such documents are exempted from authentication.

6. In relation to a convicted person who was not present at his/her trial, the person shall be treated for the purposes of paragraph 4 of this Article as if he/she had been accused of the offence of which he/she was convicted.

7. If the Requested Party considers that the evidence produced or information supplied for the purposes of this Treaty is not sufficient in order to enable a decision to be taken as to the request, additional evidence or information shall be submitted within such time as the Requested Party shall require.

8. The request for extradition and its supported documents must be accompanied by a certified translation into the official language of the Requested Party or the language of English.

ARTICLE 7

Supplementary Information

1. 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 supplementary information be furnished within such time as it may specify.

2. If the person whose extradition is sought is under arrest and the supplementary information furnished is not sufficient in accordance with this Treaty or is not received within the time specified, the person may be released from custody. Such release shall not preclude the Requesting Party from making a new request for the extradition of the person.

3. When the person is released from custody in accordance with paragraph 2, the Requested Party shall notify the Requesting Party as soon as practicable.

ARTICLE 8

Provisional Arrest

1. In case of urgency, a Party may apply by means of the facilities of the International Criminal Police Organisation (INTERPOL), diplomatic channels and directly between the Central Authorities for the provisional arrest of the person sought, pending the presentation of the request for extradition through the Central Authorities. The application shall be made in writing and transmitted by any means including electronic means.

2. The application shall contain:

a) statement about the reasons for urgency prompting the making of the application;

b) a description of the person sought, including, if possible, a photo or fingerprints;

c) the location of the person sought, if known;

d) a statement of the offences allegedly committed by the person, or of which he or she has been convicted;

e) a concise statement of the conduct alleged to constitute each offence;

f) a statement of the existence of a warrant of arrest, or finding of guilt or judgment of conviction, against the person sought;

g) a statement of the sentence that can be, or has been, imposed for the offences; and

h) a statement that a request for the extradition of the person is to follow.

3. On receipt of such an application the Requested Party shall take the necessary steps to secure the arrest of the person sought and the Requesting Party shall be notified as soon as practicable of the result of its application.

4. A person arrested upon such an application may be set at liberty upon the expiration of sixty (60) days from the date of that person’s arrest if a request for extradition, supported by the documents specified in Article 6 of this Treaty, has not been received.

5. The release of a person pursuant to paragraph 4 of this Article shall not prevent the institution of proceedings to extradite the person sought, if the extradition request is subsequently received.

ARTICLE 9

Concurrent 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 consider all relevant factors, including but not limited to:

a) the citizenship and the ordinary place of residence of the person sought;

b) whether the requests were made pursuant to treaty;

c) the time and place where each offence was committed;

d) the respective interests of the requesting States;

e) the gravity of the offences;

f) the citizenship of the victim;

g) the possibility of further extradition between the requesting States; and

h) the respective dates of the requests,

ARTICLE 10

Surrender

1. The Requested Party shall, as soon as a decision on the request for extradition has been made, communicate that decision to the Central Authority of the Requesting Party through diplomatic channels. Reasons shall be given for refusal of a request for extradition.

2. The Requested Party shall surrender the person sought to the competent 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 shall inform the Requesting Party and may refuse extradition of the same person for the same offence,

4. If circumstances beyond its control prevent a Party from surrendering or removing the person to be extradited, it shall notify the other Party, and in this case the provisions of paragraph 3 of this Article shall not apply. The Parties shall mutually decide upon a new date of surrender or removal, which shall not be later than sixty (60) days from the date of the decision.

ARTICLE 11

Surrender or Temporary Transfer of Property Relating to an Extradited Person

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

2. Subject to paragraph 1 of this Article, the abovementioned property shall, if the Requesting Party so requests, be surrendered to the Requesting Party even if the extradition cannot be carried out, including but not limited to circumstances where the extradition cannot be carried out because of the death, disappearance or escape of the person sought.

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

4. If the abovementioned property is required for an investigation or prosecution of an offence in the Requested Party, then the delivery of that property may be delayed until the completion of the investigation or prosecution, or it may be delivered on condition that it shall be returned after the conclusion of the proceedings in the Requesting Party.

ARTICLE 12

Re-extradition

Where the person extradited has absconded the criminal proceeding against him/her in the requesting State and returned to the territory of the Requested Party, the Requesting Party may submit a request for re-extradition of that person for the same offence.

ARTICLE 13

Rule of Speciality

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting Party except for:

a) the offence for which extradition has been granted or a differently denominated offence based on the same facts, on which such extradition was granted, provided such offence is extraditable or is a lesser included offence;

b) an offence in respect of which he/she was extradited, or another offence in respect of which he/she could be convicted based on the proven facts used to support the request for his/her extradition; or

c) an offence for which the competent authority according to the domestic law of the Requested Party consents to the person's detention, trial, or punishment for an offence.

For the purposes of this subparagraph:

i) the Requested Party may require to submit the documents called for in Article 6 of this Treaty;

ii) a copy of the statement, if any, made by the person in respect of whom the extradition is requested shall be submitted to the Requested Party; and

iii) the person extradited may be detained by the Requesting Party for such period of time as the Requested Party may authorize, while the request is being processed.

2. A person extradited under this Treaty may not be extradited to a third State for an offence committed prior to his/her extradition unless the Requested Party consents.

3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or sentence of an extradited person or the extradition of that person to a third State, if:

a) that person leaves the territory of the Requesting Party after extradition and voluntarily returns to it; or

b) that person does not leave the territory of the Requesting Party within sixty (60) days of the day on which that person is free to leave.

ARTICLE 14

Notification of the Results

The Requesting Party shall notify the Requested Party in advance of the information relating to the proceedings against or the execution of sentence upon the person extradited or the re-extradition of that person to a third State.

ARTICLE 15

Transit

1. To the extent permitted by its laws, transferring of a person surrendered to one Party by a third State through the territory of the other Party shall be authorized on the request in writing made through the Central Authorities.

2. Authorization for transit shall not be required when air transport is to be used and no landing is scheduled in the territory of the Party of transit. If an unscheduled landing occurs in the territory of that Party, it may require the other Party to furnish a request for transit as provided in paragraph 1 of this Article. That Party shall detain the person to be transferred until the request for transit is received and the transit is effected, so long as the request is received within four (04) days (96 hours) of the unscheduled landing.

ARTICLE 16

Costs

1. The Requested Party shall meet the costs of any proceedings in its jurisdiction arising out of a request for extradition.

2. The Requested Party shall bear the costs incurred in its territory in connection with the arrest and detention of the person whose extradition is sought, or the seizure and surrender of property.

3. The Requesting Party shall bear the costs incurred in conveying the person whose extradition is granted from the territory of the Requested Party and the costs of transit.

ARTICLE 17

Central Authorities

1. For the purpose of this Treaty, the Parties shall communicate directly through then Central Authorities except provided otherwise in this Treaty.

The Central Authority for the Socialist Republic of Viet Nam shall be the Ministry of Public Security.

The Central Authority for the Democratic Socialist Republic of Sri Lanka shall be the Ministry in charge of the subject of Defence.

2. In case either Party changes its Central Authority, it shall, as soon as practicable, notify the other Party of the same through diplomatic channels.

ARTICLE 18

Settlement of Disputes

1. The Central Authorities shall endeavour to mutually resolve any dispute arising out of the interpretation, application or implementation of this Treaty.

2. If the Central Authorities are unable to resolve the dispute mutually, it shall be resolved through diplomatic channels.

ARTICLE 19

Consultation

1. The Parties shall consult, at the request of either Party, concerning the interpretation and the application of this Treaty.

2. The Ministry of Public Security of the Socialist Republic of Viet Nam and the Ministry in charge of the subject of Defence of the Democratic Socialist Republic of Sri Lanka may consult with each other directly in connection with the processing of individual requests and in furtherance of maintaining and improving procedures for the implementation of this Treaty.

ARTICLE 20

Obligations under other International Agreements

The present Treaty shall not affect the rights and obligations of the Parties arising from other international Agreements to which they are parties.

ARTICLE 21

Amendments

Any amendment or modification to this Treaty agreed to by the Parties shall come into force in the same manner as the Treaty itself.

ARTICLE 22

Entry into Force and Termination

1. This Treaty shall be subject to ratification under the laws of each Party. Each Party shall notify the other as soon as practicable, in writing, through diplomatic channels, upon the completion of its legal procedures required for the entry into force of this Treaty. The Treaty shall come into force on the first day of the second month of the date of the last notification.

2. The Treaty shall remain in force for an indefinite period. It may, however, be terminated by either of the Parties giving a written notice of termination to other Party. The termination shall come into effect six (06) months after the date on which such notice is received by the other Party.

3. Notwithstanding any termination, this Treaty shall continue to apply to the extradition requests made before the date on which such termination takes effect.

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

Done in duplicate at Colombo on the 7th day of April 2014, in the Vietnamese, Sinhala and English languages, all texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.