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The Prison Transfer Treaty - A Practical Guide
III. EXTENSION OF TREATIES TO NON-PARTICIPATION COUNTRIES
(continued)
B. MULTILATERAL TREATIES
- COUNCIL OF EUROPE PRISONER TRANSFER TREATY
The Council of Europe’s Prisoner Transfer Treaty appear to be
the major existing treaty by which other countries may be able
to participate in the prisoner transfer process. This treaty is
not exclusively for member European states, the United States and
Canada having been part of the original adoption process with the
Bahamas, Croatia and Trinidad-Tobago having acceded later.
Other countries may accede to the treaty with the unanimous consent
of the member countries which are parties to the treaty, and a
two-thirds majority of all member countries. The treaty is flexible
and the process of acceptance is not that complicated, particularly
for those countries which maintain a relationship with Council
of Europe, although it may be more difficult for other countries
whose legal procedures processes and court systems are deemed to
be unacceptable.
Countries interested in acceding to the European treaty should
be aware of the following procedure.
- a. Foreign Ministers of Countries interested
in accession to the Council of Europe’s Convention on the Transfer
of the Sentenced Persons must formally contact the Secretary
General of the Council of Europe to indicate a willingness to
abide by the Convention’s standards.
- b. The Secretary General of the Council of
Europe then consults with the Committee of Ministers of existing
parties to The Convention who determine whether the applicant
Country should be allowed accession.
- c. Non-Member States (Non-Council Members)
can accede to The Convention through their receipt of a formal
invitation from the Council of Europe’s Committee of Ministers.
However, the process can be commenced by consultation and advice
from the Secretary General or his designee.
- THE ORGANIZATION OF AMERICAN STATES (OAS) PRISONER TRANSFER
TREATY
After several years of preliminary negotiations, in June of 1993,
the General Assembly of the OAS adopted a prisoner transfer treat.
This means that the treaty became open for signature and ratification.
Costa Rica, Venezuela, and Canada soon signed the treaty. On January
10, 1995, the U.S. signed this treaty. There appears to be no opposition,
and only support for the treaty, so it is expected to enter into
force in the near future.
The treaty enters into force 30 days after the deposit of the
ratification papers by the second OAS member country.
This new treaty, once it enters into force, has the potential
of becoming the most popular transfer treaty in history, since
it can involve virtually all of the independent countries of North,
Central, and South America and the Caribbean. It will make many
thousands of people eligible to return to their home countries.
At the present time, for example, in U.S. federal prisons, there
are approximately 4,000 Colombians, 2,000 from the Dominican Republic,
and 1,500 from Jamaica. These are only a few of the countries without
an applicable transfer treaty, with significant numbers of nationals
in U.S. custody. Virtually every OAS state has at least some people
in prison in a member state, and these figures do not include the
substantial number of foreign nationals who are in prison in individual
states of the U.S. which have prisoner transfer enabling legislation. (SEE
APPENDIX “E”)
When the OAS treaty is in force, the initial request for transfer
can be started by either the sentencing state, or by the administering
state, which is the state of which the sentencing person is a national.
The MEMBER STATES of the Organization of American States (OAS)
are: Antigua and Barbuda, Argentina, the Bahamas (Commonwealth
of), Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia,
Costa Rica, Cuba, Dominica (Commonwealth of), Dominican Republic,
Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras,
Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru. St. Kitts and
Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname,
Trinidad and Tobago, United States, Uruguay and Venezuela.
Significantly, Article XV of the Treaty allows accession to the
treaty by any country, not just member states.
- PRISONER TRANSFER TREATIES IN ARAB COUNTRIES
The origin of cooperation in the field of the enforcement of foreign
penal judgments between Arab countries can be traced to the beginning
of the 1950s. In 1952, the Council of Arab League approved the
Extradition Agreement signed by Egypt, Iraq, Jordan, Lebanon, Saudi
Arabia and Syria. Only Egypt, Jordan and Saudi Arabia proceeded
to ratification and, between these states, the Agreement was in
force. The treaties allowed the execution of a penal judgment of
one state in the territory of another. This could, for instance,
be applied where the requested state surrendered one of its own
nationals for trial, but only on the condition that he be returned
to his home country to serve his sentence there.
These Arab countries also signed the Agreement on the Enforcement
of Judgments, this convention provided that any final judgment
involving civil or commercial rights of payments, any sentence
imposed by the courts having jurisdiction over penal matters, or
matters concerning injuries, as well as decisions relating to matters
of personal status, made by the competent legal authorities in
any of the member states of the Arab League, shall be enforceable
in the other states of the League (Art. I).
These agreements were accompanied and followed by bilateral treaties,
including the “Convention judiciaire” between Syria and Lebanon
signed in 1951.
Thirty years later, the Arab countries, following the Declaration
of the First Arab Conference of Ministers of Justice held in Rabat
in 1977, signed the Riyadh Arab Agreement on Judicial Cooperation,
which was subsequently approved by the Council of Arab Ministers
of Justice on April 6, 1983. It entered into force on October 30,
1985. The following governments are signatories to this agreement:
Jordan, United Arab Emirates, Bahrain, Tunisia, Algeria, Djibouti,
Saudi Arabia, Sudan, Syria, Somalia, Iraq, Oman, Palestine, Qutar,
Kuwait, Lebanon, Kibya, Morocco, Mauritania and Yemen.
In the Preamble, the signatories expressed their desire to develop
judicial cooperation between the Arab countries into an integral
system covering all fields in such a way that it could contribute
to the intensification of the efforts undertaken in this arena.
This treaty neither requires the consent of the sentenced person
for his transfer nor provides for his protection under the rule
of specialty. The enforcement may be transferred only to the prisoner’s
state of nationality and not to his state of residence. The Convention
does not require the presence of the prisoner in the territory
of the sentencing state as a precondition for transfer.
The transfer is allowed if the following conditions are met:
- a. the sanction imposed involved deprivation
of liberty, the minimum term, which is served, is no less than
six months;
- b. the penalty has been imposed for an offence
for which extradition may not be granted;
- c. an offence is punishable in the prisoner’s
home country with imprisonment of no less than six months;
- d. both the sentencing and enforcing states
agree to the transfer (Art. 58)
- PRISONER TRANSFER TREATIES IN AFRICAN COUNTRIES
Twelve of the fourteen former territories in Equatorial and West
Africa formed the United Africaine et Malgache in 1961 and signed
a convention on judicial cooperation in Tananarive on September
12, 1961. The signatories were: Camcoon, Central African Republic,
Chad, Congo (Brazzaville), Dahomey, Gabon, Ivory Coast, Malagasy
Republic, Mauritania, Niger, Senegal and Upper Volta. The Union
was subsequently renamed the Organisation Communale Africaine et
Malgache (OCAM) and was enlarged by the accession of Togo. Although
the Convention provides for the extradition of both accused and
convicted offenders, an alternative method of enforcing the foreign
penal sentence is open in the case where an offender is sentenced
to imprisonment. At the request of a party, but subject to the
express consent of the prisoner, a convicted person may be returned
to his home country to serve his sentence there. Similar to the
Arab Convention, in such cases a decision to release on parole
lies with the home country. But pardon and amnesty may be applied
only by sentencing state. Pecuniary penalties may be enforced in
one state at the request of another.
- PRISONER TRANSFER TREATIES IN BRITISH COMMONWEALTH COUNTRIES
At the Commonwealth Law Ministers meeting in 1980, Ministers considered
whether it would be appropriate to develop Commonwealth arrangements
under which a prisoner might be transferred from a Commonwealth
country in which he had been convicted to serve his sentence in
his home country, which is also a member of the Commonwealth.
Following the Scheme Relating to the Rendition of Fugitive Offenders
within the Commonwealth drawn up at a meeting of the Commonwealth
Law ministers held in London in 1966, the Scheme for the Transfer
of Convicted offenders within the Commonwealth was agreed upon
and adopted at the meeting of Law Ministers in Harare in 1986.
The 1986 Commonwealth Scheme links upwards of 35 countries in all
parts of the world, some widely separated by distance. It embraces
large and small, developed and developing, rich and poor states.
Since different social system, political attitudes and foreign
policies are represented in this community, the Scheme, as a prototype
of a world treaty convention, is of significant interest.
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