The member States of the Council of Europe and
the other States, signatory hereto,
Considering that the aim of the Council of Europe is to achieve
a greater unity between its members;
Desirous of further developing international co-operation in
the field of criminal law;
Considering that such co-operation should further the ends
of justice and the social rehabilitation of sentenced persons;
Considering that these objectives require that foreigners
who are deprived of their liberty as a result of their
commission of a criminal offence should be given the
opportunity to
serve
their sentences within their own society; and
Considering that this aim can best be achieved by having
them transferred to their own countries,
Have agreed as follows:
Article 1 – Definitions
For the purposes of this Convention:
-
"sentence" means any punishment
or measure involving deprivation of liberty ordered by a
court for
a limited or unlimited
period of time on account of a criminal offence;
-
"judgment" means a decision or order of a court imposing
a sentence;
-
"sentencing State" means the State in which the sentence
was imposed on the person who may be, or has been, transferred;
-
"administering State" means the State to which the
sentenced person may be, or has been, transferred in order
to serve his
sentence.
Article 2 – General
principles
-
The Parties undertake to afford each other the widest measure
of co-operation in respect of the transfer of sentenced
persons in accordance with the provisions of this Convention.
-
A person sentenced in the territory of a Party may
be transferred to the territory of another Party,
in accordance
with the
provisions of this Convention, in order to serve
the sentence imposed
on him. To that end, he may express his interest
to the sentencing State or to the administering State
in being
transferred
under this Convention.
-
Transfer may be requested by either the sentencing
State or the administering State.
Article 3 – Conditions
for transfer
-
A sentenced person may be transferred under this
Convention only on the following conditions:
-
if that person is a national of the administering
State;
-
if the judgment is final;
-
if, at the time of receipt of the request for
transfer, the sentenced person still has
at least six months
of the sentence
to serve
or if the sentence is indeterminate;
-
if the transfer is consented to by the
sentenced person or, where in view
of his age or his
physical or mental
condition
one of
the two States considers it necessary,
by the sentenced person's legal representative;
-
if the acts or omissions on account
of which the sentence has been imposed
constitute
a criminal offence according
to the
law of the administering State or would
constitute
a criminal offence
if committed on its territory; and
-
if the sentencing and administering
States agree to the transfer.
-
In exceptional cases, Parties may agree
to a transfer even if the time to be
served by the
sentenced
person is less
than that
specified in paragraph 1.c.
-
Any State may, at the time of signature
or when depositing its instrument of
ratification, acceptance,
approval
or accession, by a declaration addressed
to the Secretary General of the
Council
of Europe, indicate that it intends
to exclude
the application of one of the procedures
provided in
Article 9.1.a and
b in its relations with other Parties.
-
Any State may, at any time, by a declaration
addressed to the Secretary General
of the Council of Europe,
define, as
far
as it is concerned, the term "national" for
the purposes of this Convention.
Article 4 – Obligation
to furnish information
-
Any sentenced person to whom this Convention
may apply shall be informed by the
sentencing State
of the substance
of this
Convention.
-
If the sentenced person has expressed
an interest to the sentencing State
in being
transferred
under this
Convention,
that State
shall so inform the administering State
as soon as practicable after the judgment
becomes
final.
-
The information shall include:
-
the name, date and place of birth of
the sentenced person;
-
his address, if any, in the administering
State;
-
a statement of the facts upon which
the sentence was based;
-
the nature, duration and date of commencement
of the sentence.
-
If the sentenced person has expressed
his interest to the administering State,
the
sentencing
State shall, on request,
communicate
to the State the information referred
to in paragraph 3 above.
-
The sentenced person shall be informed,
in writing, of any action taken by
the sentencing
State or
by the administering
State under
the preceding paragraphs, as well as
of any decision taken by either State
on a
request
for transfer.
Article 5 – Requests
and replies
-
Requests for transfer and replies shall
be made in writing.
-
Requests shall be addressed by the
Ministry of Justice of the requesting
State to the
Ministry of Justice
of the requested
State. Replies shall be communicated
through the same channels.
-
Any Party may, by a declaration
addressed to the Secretary General
of the Council
of Europe,
indicate
that it
will use other channels
of communication.
-
The requested State shall promptly
inform the requesting State of
its decision whether
or
not to agree to
the requested transfer.
Article 6 – Supporting
documents
-
The administering State, if requested
by the sentencing State, shall
furnish it
with:
-
a document or statement
indicating that the sentenced person is
a national of that
State;
-
a copy of the relevant law of
the administering State which
provides
that the acts
or omissions on account
of which
the sentence has
been imposed in the sentencing
State constitute a criminal offence
according
to the law
of the administering
State,
or would constitute
a criminal offence if committed
on its territory;
-
a statement containing the information
mentioned in Article 9.2.
-
If a transfer is requested, the
sentencing State shall provide
the following documents
to the
administering State, unless
either State has already indicated
that it will not agree to the
transfer:
-
a certified copy of the judgment
and the law on which it is based;
-
a statement indicating how much
of the sentence has already been
served,
including
information
on any
pre-trial detention,
remission,
and any other factor relevant
to the enforcement of the sentence;
-
a declaration containing the
consent to the transfer as referred
to
in Article 3.1.d;
and
-
whenever appropriate, any medical
or social reports on the sentenced
person,
information
about his
treatment in the
sentencing State,
and any recommendation for his
further treatment in the
administering State.
-
Either State may ask to be provided
with any of the documents or
statements referred
to
in paragraphs
1 or 2 above
before making a request for transfer
or taking a
decision on whether
or not
to agree to the transfer.
Article 7 – Consent
and its verification
-
The sentencing State shall ensure
that the person required to give
consent
to the transfer
in accordance
with
Article 3.1.d
does so voluntarily and with
full knowledge of the legal consequences
thereof.
The procedure for giving
such consent
shall be governed
by the law of the sentencing
State.
-
The sentencing State shall afford
an opportunity to the administering
State
to verify through
a consul or other
official agreed
upon with the administering State,
that the consent is given in
accordance with the conditions
set out in paragraph 1 above.
Article 8 – Effect
of transfer for sentencing State
-
The taking into charge of the
sentenced person by the authorities
of the
administering State
shall have the
effect of suspending
the enforcement of the sentence
in the sentencing State.
-
The sentencing State may no longer
enforce the sentence if the administering
State
considers enforcement of the
sentence to
have been completed.
Article 9 – Effect
of transfer for administering State
-
The competent authorities of
the administering State shall:
-
continue the enforcement of the
sentence immediately or through
a court or administrative
order,
under the conditions
set
out in Article 10, or
-
convert the sentence, through
a judicial or administrative
procedure,
into a
decision of
that State, thereby
substituting for the sanction
imposed in the sentencing State
a sanction prescribed by the
law of the administering
State for the
same offence, under
the conditions set out in Article
11.
-
The administering State, if requested,
shall inform the sentencing State
before the transfer
of the
sentenced person as to which
of these procedures it will follow.
-
The enforcement of the sentence
shall be governed by the law
of the administering
State and that
State alone
shall
be competent
to take all appropriate decisions.
-
Any State which, according to
its national law, cannot avail
itself
of one of
the procedures referred to
in paragraph 1 to enforce measures
imposed in
the territory
of another
Party
on
persons who for reasons of mental
condition have been held not
criminally responsible
for the
commission of the offence,
and
which is prepared to receive
such persons for further treatment
may,
by way of
a declaration addressed
to
the Secretary
General
of the Council of Europe, indicate
the procedures it will follow
in such cases.
Article 10 – Continued
enforcement
-
In the case of continued enforcement,
the administering State shall
be bound by the
legal nature and
duration of the sentence
as determined by the sentencing
State.
-
If, however, this sentence is
by its nature or duration incompatible
with
the law of
the administering
State,
or its law so requires,
that State may, by a court or
administrative
order, adapt the sanction to
the punishment or measure
prescribed by its own
law for a similar offence. As
to its nature, the punishment
or measure
shall, as far as possible, correspond
with that imposed by the sentence
to
be enforced.
It shall
not aggravate,
by its
nature
or duration, the sanction imposed
in the sentencing State,
nor exceed the maximum prescribed
by the law of the administering
State.
Article 11 – Conversion
of sentence
-
In the case of conversion of
sentence, the procedures provided
for by
the law of the
administering State apply. When
converting the sentence, the
competent authority:
-
shall be bound by the findings
as to the facts insofar as they
appear explicitly
or implicitly
from the
judgment imposed
in
the sentencing State;
-
may not convert a sanction involving
deprivation of liberty to a pecuniary
sanction;
-
shall deduct the full period
of deprivation of liberty served
by
the sentenced
person; and
-
shall not aggravate the penal
position of the sentenced person,
and shall
not be bound
by
any minimum which
the law of the
administering State may provide
for the offence or offences committed.
-
If the conversion procedure takes
place after the transfer of the
sentenced
person, the
administering State shall
keep that
person in custody or otherwise
ensure his presence in the administering
State
pending
the outcome
of that procedure.
Article 12 – Pardon,
amnesty, commutation
Each Party may grant pardon,
amnesty or commutation of the
sentence
in accordance with its Constitution
or other
laws.
Article 13 – Review of judgment
The sentencing State alone shall have the right to decide
on any application for review of the judgment.
Article 14 – Termination of
enforcement
The administering State shall terminate enforcement of the
sentence as soon as it is informed by the sentencing State
of any decision
or measure as a result of which the sentence ceases to be enforceable.
Article 15 – Information on
enforcement
The administering State shall provide information to the
sentencing State concerning the enforcement of the sentence:
-
when it considers enforcement of the sentence to have been completed;
-
if the sentenced person has escaped from custody before enforcement
of the sentence has been completed; or
-
if the sentencing State requests a special report.
-
A Party shall, in accordance with its law, grant
a request for transit of a sentenced person through
its territory if such a
request is made by another Party and that State has
agreed with another Party or with a third State to
the transfer of that person
to or from its territory.
-
A Party may refuse to grant transit:
-
if the sentenced person is one of its nationals, or
-
if the offence for which the sentence was imposed is
not an offence under its own law.
-
Requests for transit and replies shall be communicated
through the channels referred to in the provisions
of Article 5.2 and
3.
-
A Party may grant a request for transit of a sentenced
person through its territory made by a third State
if that State has
agreed with another Party to the transfer to or from
its territory.
-
The Party requested to grant transit may hold the sentenced
person in custody only for such time as transit through
its territory
requires.
-
The Party requested to grant transit may be asked to
give an assurance that the sentenced person will not
be prosecuted, or,
except as provided in the preceding paragraph, detained,
or otherwise subjected to any restriction on his liberty
in the territory
of the transit State for any offence committed or sentence
imposed prior to his departure from the territory of
the sentencing State.
-
No request for transit shall be required if transport
is by air over the territory of a Party and no landing
there is scheduled.
However, each State may, by a declaration addressed
to the Secretary General of the Council of Europe at
the time of signature or
of deposit of its instrument of ratification, acceptance,
approval or accession, require that it be notified
of any such transit
over its territory.
Article 17 – Language
and costs
-
Information under Article 4, paragraphs 2 to 4, shall
be furnished in the language of the Party to which
it is addressed or in one
of the official languages of the Council of Europe.
-
Subject to paragraph 3 below, no translation of requests
for transfer or of supporting documents shall be required.
-
Any State may, at the time of signature or when depositing
its instrument of ratification, acceptance, approval
or accession,
by a declaration addressed to the Secretary General
of the Council of Europe, require that requests for
transfer and supporting
documents be accompanied by a translation into its
own language or into one of the official languages
of the Council of Europe
or into such one of these languages as it shall indicate.
It may on that occasion declare its readiness to accept
translations
in any other language in addition to the official language
or languages of the Council of Europe.
-
Except as provided in Article 6.2.a, documents transmitted
in application of this Convention need not be certified.
-
Any costs incurred in the application of this Convention
shall be borne by the administering State, except costs
incurred exclusively
in the territory of the sentencing State.
Article 18 – Signature
and entry into force
-
This Convention shall be open for signature by the
member States of the Council of Europe and non-member
States which have participated
in its elaboration. It is subject to ratification,
acceptance or approval. Instruments of ratification,
acceptance or approval
shall be deposited with the Secretary General of the
Council of Europe.
-
This Convention shall enter into force on the first
day of the month following the expiration of a period
of three months after
the date on which three member States of the Council
of Europe have expressed their consent to be bound
by the Convention in
accordance with the provisions of paragraph 1.
-
In respect of any signatory State which subsequently
expresses its consent to be bound by it, the Convention
shall enter into
force on the first day of the month following the expiration
of a period of three months after the date of the deposit
of the instrument of ratification, acceptance or approval.
Article 19 – Accession
by non-member States
-
After the entry into force of this Convention, the
Committee of Ministers of the Council of Europe, after
consulting the Contracting
States, may invite any State not a member of the Council
and not mentioned in Article 18.1 to accede to this
Convention, by
a decision taken by the majority provided for in Article
20.d of the Statute of the Council of Europe and by
the unanimous
vote of the representatives of the Contracting States
entitled to sit on the Committee.
-
In respect of any acceding State, the Convention shall
enter into force on the first day of the month following
the expiration
of a period of three months after the date of deposit
of the instrument of accession with the Secretary General
of the Council
of Europe.
Article 20 – Territorial
application
-
Any State may at the time of signature or when depositing
its instrument of ratification, acceptance, approval
or accession,
specify the territory or territories to which this
Convention shall apply.
-
Any State may at any later date, by a declaration addressed
to the Secretary General of the Council of Europe,
extend the application
of this Convention to any other territory specified
in the declaration. In respect of such territory the
Convention shall enter into
force on the first day of the month following the expiration
of a period of three months after the date of receipt
of such declaration by the Secretary General.
-
Any declaration made under the two preceding paragraphs
may, in respect of any territory specified in such
declaration, be
withdrawn by a notification addressed to the Secretary
General. The withdrawal shall become effective on the
first day of the
month following the expiration of a period of three
months after the date of receipt of such notification
by the Secretary General.
Article 21 – Temporal
application
This Convention shall be applicable to the enforcement
of sentences imposed either before or after its entry
into force.
Article 22 – Relationship to
other Conventions and Agreements
-
This Convention does not affect the rights and undertakings
derived from extradition treaties and other treaties on international
co-operation in criminal matters providing for the
transfer
of detained persons for purposes of confrontation
or testimony.
-
If two or more Parties have already concluded an
agreement or treaty on the transfer of sentenced
persons or otherwise have
established their relations in this matter, or should
they in future do so, they shall be entitled to apply
that agreement
or treaty or to regulate those relations accordingly,
in lieu of the present Convention.
-
The present Convention does not affect the right
of States party to the European Convention on the
International
Validity of Criminal
Judgments to conclude bilateral or multilateral agreements
with one another on matters dealt with in that Convention
in order
to supplement its provisions or facilitate the application
of the principles embodied in it.
-
If a request for transfer falls within the scope of
both the present Convention and the European Convention
on the International
Validity of Criminal Judgments or another agreement
or treaty on the transfer of sentenced persons, the
requesting State shall,
when making the request, indicate on the basis of which
instrument it is made.
Article 23 – Friendly
settlement
The European Committee on Crime Problems of the Council
of Europe shall be kept informed regarding the application
of this Convention
and shall do whatever is necessary to facilitate
a friendly settlement of any difficulty which may arise
out of its application.
Article 24 – Denunciation
-
Any Party may at any time denounce this Convention by means
of a notification addressed to the Secretary General of the
Council
of Europe.
-
Such denunciation shall become effective on the first
day of the month following the expiration of a period
of three months
after the date of receipt of the notification by the
Secretary General.
-
The present Convention shall, however, continue to
apply to the enforcement of sentences of persons who
have been transferred
in conformity with the provisions of the Convention
before the date on which such a denunciation takes
effect.
Article 25 – Notifications
The Secretary General of the Council of Europe shall
notify the member States of the Council of Europe,
the non-member States
which have participated in the elaboration of this
Convention and any State which has acceded to this
Convention of:
-
any signature;
-
the deposit of any instrument of ratification, acceptance,
approval or accession;
-
any date of entry into force of this Convention
in accordance with Articles 18.2 and 3, 19.2
and 20.2 and 3;
-
any other act, declaration, notification or communication
relating to this Convention.
In witness whereof the undersigned, being duly
authorised thereto, have signed this Convention.
Done at Strasbourg, this 21st day of March
1983, in English and French, both texts being
equally
authentic, in a single copy
which shall be deposited in the archives
of the Council of Europe. The Secretary General
of the
Council of
Europe shall transmit
certified copies to each member State of
the Council of Europe, to the non-member States
which have
participated in the elaboration
of this Convention, and to any State invited
to accede to it.
Additional Protocol to the Convention on the Transfer
of Sentenced Persons
(1997)
Procedure in Malta for the Transfer of Sentenced Persons
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