Transfer of Libyan Prisoners

AGREEMENT BETWEEN MALTA AND LIBYA ON THE TRANSFER OF SENTENCED PERSONS
1994

Official title:
“Agreement between the Government of Malta and the Great Socialist People’s Libyan Arab Jamahariya on the Transfer of Sentenced Persons”

The Government ofMaltaand the Great Socialist People’s Libyan Arab Jamahariya,

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 nationals of either state 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 country.

Have agreed as follows:

Article 1 Definitions

For the purpose of this Agreement:

a. “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;

b. “sentencing State” means the State in which the sentence was imposed on the person who may be, or has been, transferred;

c. “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 sentence persons in accordance with the provisions of this Agreement.

A person sentence in the territory of one Party may be transferred to the territory of the other Party in accordance with the provisions of this Agreement in order to serve the sentence imposed on him. To that end he may express his interest of the sentencing State or to the administering State in being transferred under this Agreement.

Transfer may be requested by either the sentencing State of the administering State.

Article 3 Conditions for Transfer

1. A sentenced person may be transferred under this Agreement only on the following conditions:

a) if that person is a national of the administering State;

b) if the judgement is final;

c) 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;

d) 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;

e) if the penalised act is considered a crime in both countries; and

f) if the sentencing and administering States agree to the transfer.

2. In exceptional cases, the Parties may agree to a transfer even if the time to be served by the sentenced person is less than specified in paragraph l.c.

Article 4 Obligation to Furnish Information

1. Any sentenced person to whom this Agreement may apply shall be informed by the sentencing State of the substance of this Agreement.

2. If the sentenced person has expressed an interest to the sentencing State in being transferred under this Agreement, that State shall so inform the administering State as soon as practicable after the judgement becomes final.

The information shall include:

a. the name, date and place of birth of the sentenced person;

b. his address, if any, in the administering state;

c. a statement of the facts upon which the sentence was based;

d. the nature, duration and date of commencement of the sentence.

3. If the sentenced person has expressed his interest to the administering State, the sentencing State shall, on request, communicate to that State the information referred to in paragraph 2 above.

4. The sentenced person shall be informed, in writing, of any action taken by the sentencing State or 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

1. Requests for transfer and replies shall be made in writing.

2. Requests shall be addressed by the Ministry of Justice or the Secretariat of Justice of the requesting State to the Ministry of Justice or the Secretariatof Justice of the requested State. Replies shall be communicated through the same channels.

3. The requested State shall promptly inform the requesting State of its decision whether or not agree to the requested transfer.

Article 6 Supporting Documents

1. 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;

b. 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.

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. a certified copy of the judgement and of the law on which it is based;

b. 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;

c. a declaration containing the consent to the transfer as referred to in Article 3.1; and

d. 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.

3. Either Party may ask to be provided with any of the documents or statements referred to in paragraphs 1 and 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

1. 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.

2. The sentencing State shall afford an opportunity to the administering State to verify, through a consul or other official agreed by both states, that the consent is given in accordance with the conditions set out in paragraph 1 above.

Article 8 Effect of Transfer for Sentencing State

1. 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.

2. 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

1. 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.

2. 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.

Article 10 Continued Enforcement

1. The administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.

2. 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 Pardon, Amnesty, Commutation

Each party may grant pardon, amnesty or commutation of the sentence in accordance with its laws.

Article 12 Review of Judgement

The sentencing State alone shall have the right to decide on any application for review of the judgement.

Article 13 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 14 Information on Enforcement

1. The administering State shall provide information to the sentencing State concerning the enforcement of the sentence:

a. when it considers enforcement of the sentence to have been completed;

b. if the sentenced person has escaped from custody before enforcement of the sentence has been completed; or

c. if the sentencing State requests a special report.

2. The administering State shall, at any time, afford every opportunity to the sentencing State to verify, through a consul or other official agreed upon with the administering State, the course of the enforcement of the sentence.

Article 15 Language and Costs

1. Information under Article 4, paragraphs 2 and 3, shall be furnished in Maltese or English or in Arabic.

2. Requests for transfer and all supporting documents shall be in Maltese or English or in Arabic.

3. Except as provided in Article 6.2.a and b documents transmitted in application of this Agreement need not be certified.

4. Any costs incurred in the application of this Agreement shall be borne by the administering State, except costs incurred exclusively in the territory of the sentencing State.

Article 16 Temporal Application

This agreement shall be applicable to the enforcement of sentences imposed either before or after its entry into force.

Article 17 Relationship to other Conventions and Agreements

This Agreement does not affect the rights and undertaking of the Parties which may be derived from extradition treaties and other treaties on international co-operation in criminal matters providing for the transfer of detained persons for purposes of testimony.

Article 18 Denunciation

1. Either Party may at any time denounce this Agreement by means of a notification addressed to the other Party.

2. Such denunciation shall be effective as from the first day of the forth month the date of notification.

3. This Agreement shall, however, continue to apply to the enforcement of sentences of persons who have been transferred in conformity with the provisions of the Agreement before the date of its denunciation.

Article 19 Entry into Force

This Agreement is subject to ratification by the relevant authorities of both sides and shall come into force thirty days from the date of the relative exchange of documents.

Done on the 14th October, 1994, corresponding to 14 Al-Tumur 1423 b.p., atValletta,Malta, in the English and Arabic languages both texts being equally authentic