The ________ and the ________
Desirous of further
strengthening international cooperation and mutual assistance in criminal
justice, on the basis of the principles of respect for national sovereignty and
jurisdiction and of non-interference in the internal affairs of States,
Believing that such cooperation
should further the ends of justice, the social resettlement of sentenced
persons and the interest of the victims of crime,
Bearing in mind that the transfer of
supervision of offenders conditionally sentenced or conditionally released can
contribute to an increase in the use of alternatives to imprisonment,
Aware that supervision in the home country
of the offender rather than enforcement of the sentence in a country where the
offender has no roots also contributes to an earlier and more effective
reintegration into society,
Convinced, therefore, that the
social rehabilitation of offenders and the increased application of
alternatives to imprisonment would be promoted by facilitating the supervision
of conditionally sentenced or conditionally released offenders in their State
of ordinary residence,
Have agreed as follows:
Article 1
Scope of application
1. The present Treaty shall be applicable, if,
according to a final court decision, a person has been found guilty of an
offence and has been:
(a) Placed on probation without sentence
having been pronounced; (b) Given a suspended sentence involving deprivation of
liberty;
(c) Given a sentence, the enforcement of which
has been modified (parole) or conditionally suspended, in whole or in part,
either at the time of the sentence or subsequently.
2. The State where the decision was taken
(sentencing State) may request another State (administering State) to take
responsibility for applying the terms of the decision (transfer of
supervision).
Article 2
Channels of communications
A request for the transfer of supervision
shall be made in writing. The request, supporting documents and subsequent
communication shall be transmitted through diplomatic channels, directly
between the Ministries of Justice or any other authorities designated by the
Parties.
Article 3
Required documents
1. A request for the transfer of supervision
shall contain all necessary information on the identity, nationality and
residence of the sentenced person. The request shall be accompanied by the
original or a copy of any court decision referred to in the preceding provision
and a certificate that this decision is final.
2. The documents submitted in support of a
request for transfer of supervision shall be accompanied by a translation into
the language of the requested State or into another language acceptable to that
State.
Article 4
Certification and authentication
Subject to national law and unless the Parties
decide otherwise, a request for transfer of supervision and the supporting
documents thereto, as well as the documents and other material supplied in
response to such a request, shall not require certification or authentication.*
Article 5
Decision on the request
The competent authorities of the administering
State shall examine what action to take on the request for supervision in order
to comply, as fully as possible, with the request under their own law, and
shall promptly communicate their decision to the sentencing State.
Article 6
Dual criminality**
A request for transfer of supervision can be
complied with only if the act on which the request is based would constitute an
offence if committed in the territory of the administering State.
Article 7
Grounds for refusal***
If the administering State refuses acceptance
of a request for transfer of supervision, it shall communicate the reasons for
refusal to the sentencing State. Acceptance may be refused where:
(a) The sentenced person is not ordinarily
resident in the administering State;
(b) The act is an offence under military law,
which is not also an offence under ordinary criminal law;
(c) The offence is in connection with taxes,
duties, customs or exchange;
(d) The offence is regarded by the
administering State as being of a political nature;
(e) The administering State, under its own
law, can no longer carry out the supervision or enforce the sanction in the
event of revocation because of lapse of time.
Article 8
The position of the sentenced person
Whether sentenced or standing trial, a person
may express to the sentencing State his or her interest in a transfer of
supervision and his or her willingness to fulfil any conditions to be imposed.
Similarly, such interest may be expressed by his or her legal representative or
close relatives. Where appropriate, the Contracting States shall inform the
offender or his or her close relatives of the possibilities under the present
Treaty.
Article 9
The rights of the victim
The sentencing State and the administering
State shall ensure in the transfer of supervision that the rights of the
victims of the offence, in particular his or her rights to restitution or
compensation, shall not be affected as a result of the transfer. In the event
of the death of the victim, this provision shall apply to his or her dependants
accordingly.
Article 10
The effects of the transfer of
supervision on the sentencing State
The acceptance by the administering State of
the responsibility for applying the terms of the decision rendered in the
sentencing State shall extinguish the competence of the latter State to enforce
the sentence.
Article 11
The effects of the transfer of
supervision on the administering State
1. The supervision transferred upon agreement
and the subsequent procedure shall be carried out in accordance with the law of
the administering State. That State alone shall have the right of revocation.
That State may, to the extent necessary, adapt to its own law the conditions or
measures prescribed, provided that such conditions or measures are, in terms of
their nature or duration, not more severe than those pronounced in the
sentencing State.
2. If the administering State revokes the
conditional sentence or conditional release, it shall enforce the sentence in
accordance with its own law without, however, going beyond the limits imposed
by the sentencing State.
Article 12
Review, pardon and amnesty
1. The sentencing State alone shall have the
right to decide on any application to reopen the case.
2. Each Party may grant pardon, amnesty or
commutation of the sentence in accordance with the provisions of its Constitution
or other laws.
Article 13
Information
1. The Contracting Parties shall keep each
other informed, in so far as it is necessary, of all circumstances likely to
affect measures of supervision or enforcement in the administering State. To
this end they shall transmit to each other copies of any relevant decisions in
this respect.
2. After expiration of the period of
supervision, the administering State shall provide to the sentencing State, at
its request, a final report concerning the supervised person's conduct and
compliance with the measures imposed.
Article 14
Costs
Supervision and enforcement costs incurred in
the administering State shall not be refunded, unless otherwise agreed by both
the sentencing State and the administering State.
Article 15
Final provisions
1. The present Treaty is subject to
[ratification, acceptance or approval]. The instruments of [ratification,
acceptance or approval] shall be exchanged as soon as possible.
2. The present Treaty shall enter into force
on the thirtieth day after the day on which the instruments of [ratification,
acceptance or approval] are exchanged.
3. The present Treaty shall apply to requests
made after its entry into force, even if the relevant acts or omissions
occurred prior to that date.
4. Either Contracting Party may denounce the
present Treaty by giving notice in writing to the other Party. Such
denunciation shall take effect six months following the date on which it is
received by the other Party.
IN WITNESS WHEREOF the undersigned, being duly
authorized thereto by their respective Governments, have signed the present
Treaty.
------------ ------------- DONE at -------- on
-------- in the -------- and -------- languages [both/all] texts being equally
authentic.
________
* The laws of some countries require
authentication before documents transmitted from other countries can be
admitted in their courts and, therefore, would require a clause setting out the
authentication required.
** When negotiating on the basis of the present
Model Treaty. States may wish to waive the requirement of dual criminality.
*** When negotiating on the basis of the
present Model Treaty, States may wish to add other grounds for refusal or
conditions to this list, relating, for example, to the nature or gravity of the
offence, to the protection of fundamental human rights, or to considerations of
public order.
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Office of the United Nations High Commissioner for Human Rights
Geneva, Switzerland