Preamble
The member States of the Council of Europe, and the other States
signatory to this Protocol,
Desirous of facilitating the
application of the Convention
on the Transfer of Sentenced Persons (clickable link
below) opened for signature at Strasbourg
on 21 March 1983 (hereinafter referred to as "the Convention")
and, in particular, pursuing its acknowledged aims of furthering
the ends of justice and the social rehabilitation of sentenced
persons;
Aware that many States cannot extradite their own nationals;
Considering it desirable to supplement the Convention in
certain respects,
Have agreed as follows:
Article 1 – General provisions
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The words and expressions used in this Protocol shall be interpreted
within the meaning of the Convention.
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The provisions of the Convention shall apply to the extent
that they are compatible with the provisions of this Protocol.
Article 2 – Persons
having fled from the sentencing State
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Where a national of a Party who is the subject of a sentence
imposed in the territory of another Party as a part of
a final judgment, seeks to avoid the execution or further
execution
of the sentence in the sentencing State by fleeing to
the territory of the former Party before having served the
sentence, the
sentencing
State may request the other Party to take over the execution
of the sentence.
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At the request of the sentencing State, the administering
State may, prior to the arrival of the documents supporting
the request,
or prior to the decision on that request, arrest the
sentenced person, or take any other measure to ensure
that the sentenced
person remains in its territory, pending a decision
on the request. Requests for provisional measures shall
include the information
mentioned in paragraph 3 of Article 4 of the Convention.
The penal position of the sentenced person shall not
be aggravated
as a result of any period spent in custody by reason
of this paragraph.
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The consent of the sentenced person shall not be required
to the transfer of the execution of the sentence.
Article 3 – Sentenced
persons subject to an expulsion or deportation order
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Upon being requested by the sentencing State, the
administering State may, subject to the provisions
of this Article,
agree to the transfer of a sentenced person without
the consent
of that
person, where the sentence passed on the latter,
or an administrative decision consequential to
that sentence,
includes an expulsion
or deportation order or any other measure as
the result of which that person will no longer be allowed
to remain
in
the territory
of the sentencing State once he or she is released
from
prison.
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The administering State shall not give its agreement
for the purposes of paragraph 1 before having
taken into consideration
the opinion of the sentenced person.
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For the purposes of the application of this
Article, the sentencing State shall furnish
the administering
State
with:
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a declaration containing the opinion of the
sentenced person as to his or her proposed
transfer, and
-
a copy of the expulsion or deportation
order or any other order having the effect
that
the sentenced
person will
no longer
be allowed to remain in the territory
of the sentencing State once
he or she is released from prison.
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Any person transferred under the provisions
of this Article shall not be proceeded
against, sentenced or detained
with a view to
the carrying out of a sentence or detention
order,
for any offence committed prior to
his or her transfer other
than
that for which
the sentence to be enforced was imposed,
nor shall he or she for any other reason
be restricted
in
his
or her
personal
freedom,
except in the following cases:
-
when the sentencing State so authorises:
a request for authorisation shall
be submitted, accompanied
by all
relevant documents
and a legal record of any statement
made by
the convicted person;
authorisation shall be given when
the offence for which it is requested would
itself
be subject to
extradition
under
the law
of the sentencing State or when extradition
would be excluded only by reason
of the amount of punishment;
-
when the sentenced person, having
had an opportunity to leave the
territory of the
administering
State, has not
done so
within 45 days of his or her final
discharge, or if he or she has
returned to that territory after
leaving
it.
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Notwithstanding the provisions
of paragraph 4, the administering
State
may take
any measures necessary under
its law, including proceedings in absentia,
to
prevent any legal effects of
lapse of time.
-
Any contracting State may, by
way of a declaration addressed
to the
Secretary
General of the
Council of Europe, indicate
that it will not take over
the execution of sentences under
the circumstances
described in this Article.
Article 4 – Signature
and entry into force
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This Protocol shall be open
for signature by the member
States
of the Council
of Europe and the
other States
signatory to
the Convention. It shall
be subject to ratification, acceptance
or
approval. A Signatory may
not ratify, accept or approve this
Protocol
unless it has
previously or simultaneously
ratified,
accepted or approved the
Convention. Instruments of ratification,
acceptance or approval
shall be
deposited
with the Secretary
General of the Council
of Europe.
-
This Protocol shall enter
into force on the first
day of the
month following
the
expiration
of
a period of
three
months after the deposit
of the third instrument
of ratification,
acceptance
or approval.
-
In respect of any signatory
State which subsequently
deposits its
instrument of ratification,
acceptance or approval,
the Protocol 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.
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Any non-member State
which has acceded
to the Convention
may
accede to this
Protocol after
it has entered
into force.
-
In respect of any
acceding State,
the Protocol
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
accession.
Article 6 – Territorial
application
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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 Protocol
shall apply.
-
Any Contracting
State may,
at any
later date, by
declaration
addressed
to the
Secretary
General
of the Council
of
Europe,
extend the application
of this
Protocol
to any
other territory
specified
in the
declaration.
In respect
of such
territory
the
Protocol
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
7 – Temporal
application
This
Protocol
shall
be
applicable
to
the
enforcement
of
sentences
imposed
either
before
or
after
its
entry
into
force.
Article 8 – Denunciation
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Any Contracting State may at any time denounce this Protocol
by means of a notification addressed to the Secretary General
of the Council of Europe.
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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.
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This Protocol shall, however, continue to apply to the enforcement
of sentences of persons who have been transferred in conformity
with the provisions of both the Convention and this Protocol
before the date on which such denunciation takes effect.
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Denunciation of the Convention automatically entails denunciation
of this Protocol.
Article 9 – Notifications
The Secretary General of the Council of Europe shall
notify the member States of the Council of Europe,
any Signatory,
any Party
and any other State which has been invited to accede
to the Convention of:
-
any signature;
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the deposit of any instrument of ratification, acceptance,
approval or accession;
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any date of entry into force of this Protocol in accordance
with Articles 4 or 5;
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any other act, declaration, notification or communication
relating to this Protocol.
In witness whereof the undersigned, being duly authorised
thereto, have signed this Protocol.
Done at Strasbourg, this eighteenth day of December 1997,
in English and in 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 other States signatory to the Convention
and to any State invited to accede to the Convention.
Convention on the Transfer
of Sentenced Persons
(1983)
Procedure in Malta for the Transfer of Sentenced Persons
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