This page was created for the sole
pupose of consolidating the information avaibable on the web , regarding
international prisoner transfers of US Citizens. Unfortunatly, because these
pages are a conglameration of saved web pages, the links embedded in original
copy , no longer work, with the following exception; U.S. Department of State
page below. Please chesk all embedded links, anyway. Therfore, I have broken the
site down by using the listed subsection links below:
DISCLAIMER: the information in this circular is
provided for general information only and may not be totally applicable in a
particular case. Questions involving interpretation of foreign law should be
addressed to a foreign attorney.
This is an official
U.S. Government source. Inclusion of non-U.S. Government links does not imply
endorsement of contents.
Q. IS IT POSSIBLE FOR A
PERSON CONVICTED OF A CRIME IN ONE COUNTRY TO BE TRANSFERRED TO HIS/HER HOME
COUNTRY WHERE HE/SHE WILL SERVE THE REMAINDER OF HIS/HER
SENTENCE?
A. Yes. Under U.S. law (18 U.S.C. §§
4100-4115) foreign nationals convicted of a crime in the United States, and
United States citizens or nationals convicted of a crime in a foreign country,
may apply for a prisoner transfer to their home country if a treaty
providing for such transfer is in force between the United States and the
foreign country involved.
Q. WHAT COUNTRIES DOES
THE UNITED STATES HAVE PRISONER TRANSFER TREATIES WITH AT
PRESENT?
A. The United States has 12 bilateral prisoner transfer treaties in force
in Bolivia, Canada, France, Hong Kong S.A.R., Marshall Islands, Mexico,
Micronesia, Palau, Panama, Peru, Thailand and Turkey.
In addition, the United
States is a party to two multilateral prisoner transfer treaties.
The COE Convention is in
force in the following countries: Albania, Andorra, Armenia, Australia, Austria,
Azerbaijan, Bahamas, Belgium, Bolivia, Bulgaria, Canada, Chile, Costa Rica,
Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia,
Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Latvia,
Liechtenstein, Lithuania, Luxembourg, Macedonia (Former Yugoslav Republic of),
Malta, Mauritius, Moldova, the Netherlands (including Netherlands Antilles and
Aruba), Nicaragua, Norway (including Bouvet Island, Peter I's Island and Queen
Maud Land), Panama, Poland, Portugal, Romania, San Marino, Serbia and
Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tonga, Trinidad and
Tobago, Turkey, Ukraine, the United Kingdom (including Anguilla, British Indian
Ocean Territory, British Virgin Islands, Cayman Islands, Ducie and Oena Islands,
Falkland Islands, Gibraltar, Henderson, Isle Of Man, Montserrat, Pitcairn, St.
Helena and Dependencies and the Sovereign Base Areas of Akrotiri and Dhekelia on
the Island of Cyprus), the United States and Venezuela.
The Inter-American Convention on Serving Criminal Sentences
Abroad (or OAS Convention). The U.S. signed the OAS multilateral prisoner
transfer treaty on January 10, 1995. The treaty was submitted to the U.S.
Senate for advice and consent to ratification September 30, 1996. On September
27, 2000, the Senate Foreign Relations Committee approved the OAS Prisoner
Transfer Treaty. The Treaty was approved by the U.S. Senate on October 18,
2000. The President signed the instruments of accession, and on May 25, 2001
at 11:30 a.m., the U.S. deposited the instruments of accession with the OAS.
The Convention entered into force for the U.S on June 24, 2001.
The OAS Convention is in
force in the following countries: Brazil, Canada, Chile, Costa Rica, Mexico,
Nicaragua, Panama, Paraguay, the United States and Venezuela.
Q. WHERE CAN I FIND THE
TEXT OF PRISONER TRANSFER TREATIES?
Q. HOW CAN OTHER
COUNTRIES ENTER INTO A TREATY RELATIONSHIP WITH THE UNITED STATES TO PERMIT
PRISONER TRANSFER?
A. In recent years, it has been the posture of the United States to
encourage countries which have approached us to consider acceding to a
multilateral convention rather than initiating the lengthy and costly process of
negotiating, signing, and ratifying new bilateral treaties. This is an area
where a multilateral approach, as exemplified by the Council of Europe
Convention, has proven effective in offering an existing mechanism which new
states can join, as well as standardizing transfer procedures for current
members.
Q. WHAT U.S. LAW GOVERNS
THE TRANSFER OF PRISONERS TO AND FROM FOREIGN COUNTRIES?
A. The United States has enacted legislation implementing all prisoner
transfer treaties. See 18 USC §§ 4100 et
seq. See also28
CFR 2.62.
Q. WHO MUST AUTHORIZE THE
TRANSFER OF THE PRISONER?
A. The consent of the U.S. Government, the foreign government and the
prisoner is required for each transfer. If the person was convicted of a crime
by a state in the United States, and is serving a sentence in a state facility,
consent of the state is also required. The decision to transfer a prisoner is a
discretionary decision to be made by each country. See the Department of Justice
International Prisoner Transfer web site for further information.
Q. WHO IS ELIGIBLE TO
APPLY FOR TRANSFER?
A. A prisoner may apply for transfer to a country of which he is a citizen
or national in accordance with the provisions of the governing treaty. However,
a prisoner is not eligible for transfer until the judgment and sentence in his
case is final; that is, when no appeals or collateral attacks are pending. Some
prisoner transfer treaties require that fines imposed as part of the criminal
sentence be paid prior to transfer. Depending on the provisions of the governing
treaty, prisoners who are convicted of certain types of crimes (such as military
offenses and political offenses) or who have less than a specified amount of
time remaining on their sentences (normally six months or a year, depending on
the treaty involved), are not eligible for transfer.
Q. HOW DOES A PRISONER
APPLY FOR TRANSFER?
A. The transfer process for a U.S. citizen incarcerated abroad usually
begins with the prisoner notifying the U.S. Embassy that he/she wishes to be
transferred under the treaty. Thereafter, the U.S. Department of Justice, in its
discretion, determines whether a prisoner can transfer to the United States,
pursuant to internal Guidelines for
Evaluation of Prisoner Transfer Applications. If the U.S. Department of
Justice concurs, the U.S. Embassy will contact the foreign ministry. The U.S.
Embassy will also assist the prisoner in transmitting the necessary paperwork to
the appropriate government authorities, normally the respective Attorney
Generals' offices. Should the prisoner's request for transfer be approved by
both governments, a consent verification hearing (CVH) will be held, and
arrangements will be made between the two governments for the prisoner's
transfer to be effected at a time mutually agreeable to the governments.
The transfer of foreign
prisoners incarcerated in the United States follows a similar process.
Additional information about the transfer of foreign prisoners can be found in
the Federal Bureau
of Prisons' Program Statement on International Prisoner Transfer (search for
Program Statement 5140.29 - Treaty Transfer of Offenders To or From Foreign
Countries).
Q. WHAT DOCUMENTATION IS
REQUIRED TO APPLY FOR A TRANSFER?
A. Documents required for prisoner transfer applications vary depending on
the treaty and the laws or procedures of the country in which a prisoner is
incarcerated. United States citizens or nationals incarcerated abroad should
contact U.S. consular authorities at the U.S. embassy or consulate, who will
assist inmates in obtaining the necessary documents and completing any required
forms.
Foreign nationals
incarcerated in the United States should consult prison authorities about their
interest in transfer. In the case of foreign nationals in federal prisons,
prison authorities will arrange for submission of the necessary documents to the
United States Department of Justice, which serves as the Central Authority for
international prisoner transfer. Documentation provided to the Department of
Justice generally includes:
Form or letter signed by
prisoner indicating interest in transfer
Birth certificate or
passport
Judgment or sentence
Pre-sentence report
Fingerprints and
photograph
Sentence calculation
Prison progress report
(security level, disciplinary reports, prison jobs, program participation,
psychological evaluation, current medical condition)
Immigration status
Family and residence
information
Q. WHAT HAPPENS ONCE A
TRANSFER REQUEST HAS BEEN APPROVED BY THE UNITED STATES AND THE FOREIGN
COUNTRY?
A. Arrangements are made to conduct a consent verification hearing for the
prisoner.
Q. WHAT IS A CONSENT
VERIFICATION HEARING?
A. United States law (18 U.S.C. § 4108)
requires that a prisoner transferring into or out of the United States give
his/her consent before being transferred. This is done at a hearing called a
consent verification hearing (CVH). For prisoners transferring from foreign
countries to the United States the CVH is normally conducted by a United States
magistrate judge in the foreign country prior to the transfer date. This hearing
may occur anywhere from a day or two before transfer to as much as two months
before transfer. Some countries are sensitive to the idea of a United States
magistrate conducting a CVH in the host country. If this poses a serious
problem, another U.S. official, such as a consular officer, can be commissioned
to act as the hearing officer. Prisoners seeking transfer to the United States
have the right to consult an attorney, at their expense, if they wish. If they
cannot afford an attorney, they may request that they be represented by a United
States Public Defender. If they make such a request, the U.S. Public Defender
will be appointed and will travel to the foreign country to discuss with the
prisoner the effects of transferring. If the prisoner still wishes to transfer,
he/she would then appear before the hearing officer at the CVH and give his/her
consent to the transfer. Special arrangements are made for handling cases
involving minors or the mentally ill (18 U.S.C. § 4102(8) and
(9)).
Q. AFTER THE CONSENT OF A
PRISONER SEEKING TRANSFER TO THE UNITED STATES HAS BEEN VERIFIED, HOW IS THE
PHYSICAL TRANSFER OF THAT PRISONER BACK TO THE UNITED STATES
ACCOMPLISHED?
A. Officials of the Federal Bureau of Prisons travel to the foreign country
to escort the prisoner to the United States. The transferee returns to the
United States in the custody of these officials and is placed in a federal
prison. Because of security concerns, information about specific dates and
timing of a transfer are not provided to the prisoner, family or other persons
until the actual transfer has occurred as a matter of security policy of the
Federal Bureau of Prisons.
Q. ONCE A U.S. CITIZEN
HAS BEEN TRANSFERRED TO THE UNITED STATES, HOW IS HIS/HER FOREIGN SENTENCE
ADMINISTERED?
A. At the outset it is important to recognize that a transferred prisoner
has no right to appeal, modify, set aside, or otherwise challenge his/her
foreign conviction in a United States court or administrative agency after being
transferred back to the United States. (18 U.S.C. § 3244(1)) Such authority
remains with the courts in the sentencing country. However, the United States
must execute the sentence imposed by the foreign country. To do so it must go
through a careful analysis to determine how a comparable crime would be punished
in the United States and then determine a release date for such an offense. The
responsibility for determining the release date, as well as any period of
supervised release and conditions that will apply, has been given to the United
States Parole Commission, an administrative agency within the United States
Department of Justice. See18 U.S.C. § 4106A
(for offenses committed on or after November 1, 1987); 18 U.S.C. § 4106
(for offenses committed before November 1, 1987).
The process for determining
the release date for the transferred prisoner begins shortly after the prisoner
enters the United States. Following the prisoner's return to the United States,
the Federal Bureau of Prisons designates an appropriate federal institution for
service of the sentence after considering a number of factors, including the
nature of the offense, the sentence imposed, prior history of the prisoner, and
the prisoner's home area. Next, a United States probation officer, who is
located near the institution in which the prisoner is incarcerated, reviews the
documents submitted by the sentencing country which describe the offense
committed by the prisoner. After reviewing these materials, the probation
officer interviews the prisoner and prepares a post-sentence report. The Parole
Commission then schedules a special transferee hearing. Prior to this hearing,
the transferred prisoner is provided with an opportunity to be represented by
counsel.
At the hearing, the Parole
Commission is presented with information and arguments regarding the appropriate
period of imprisonment. Following the hearing, the Parole Commission deliberates
and determines the date on which the prisoner will be released on supervised
release. It also determines the length of the supervised release period and the
conditions of supervised release. While on supervised release, the prisoner is
supervised in the community for a specified period of time by a probation
officer. An offender on supervised release must abide by certain terms and
conditions. A violation of the conditions of supervised release could result in
the revocation of the supervised release and a return to prison.
In determining an
appropriate release date and the length of the supervised release period, the
Parole Commission considers many factors, including the nature of the offense,
whether the prisoner has accepted responsibility for his actions, and the
sentence that would be applied for a comparable federal offense under the United
States Sentencing Guidelines. It is important to stress that, in determining a
suitable release date from the foreign sentence, the Parole Commission cannot
overturn the prisoner's conviction, reduce or modify the original sentence, or
make findings of fact that are inconsistent with the findings of the foreign
court. Although the release date determined by the Parole Commission may
sometimes be less than the duration of the sentence imposed by the foreign
country, it can never be greater than the foreign sentence. 18 U.S.C. §
4106A(b)(1)(C). A transferred prisoner who is dissatisfied with the decision
of the Parole Commission may appeal the decision to the United States Court of
Appeals.
The Federal Bureau of
Prisons will compute the sentence. The prisoner will receive credit for all the
time spent in custody from the day of arrest. Additionally, the release date set
by the Parole Commission may be reduced by any foreign labor and good time
credits earned prior to the transfer. The prisoner will also received good time
credits earned in the United States. 18 U.S.C. § 4105. (A
transferred prisoner, like all regular federal prisoners, is expected to abide
by prison rules and, if he fails to do so, he/she risks losing good conduct time
credits.)
After a prisoner is released
from the custody of the Bureau of Prisons, a probation officer, usually from the
prisoner's home district, will be responsible for supervising the prisoner
during any period of supervised release that has been imposed. During this
period the offender must report regularly to the probation officer and must
abide by all of the conditions that have been imposed in connection with the
term of supervised release. Failure to do so could result in a United States
court revoking the supervised release and returning the offender to prison to
serve the remainder of the sentence.
Additional questions
regarding this subject should be directed to the United States parole
Commission. For additional information see the United States Parole Commission web site.
Q. WHEN A FOREIGN
NATIONAL WHO IS SERVING A SENTENCE IN A STATE FACILITY IN THE UNITED STATES
WISHES TO APPLY FOR A TRANSFER, WHAT PROCEDURES APPLY?
A. There is a distinction between prisoners serving sentences in State or
local facilities and prisoners convicted in federal courts serving sentences in
federal facilities in the United States. See the Department of Justice
International Prisoner Transfer web site for a listing of States
Participating in the Program and a discussion of the Transfer of State
Prisoners. Some states in the United States lack enthusiasm for prisoner
transfer treaties and some have indicated an unwillingness to participate in
such transfers. Forty-four of the 50 states, and the Commonwealth of the
Northern Mariana Islands have enacted implementing legislation but only a
handful (Arizona, Florida, Illinois, Massachusetts, New Mexico, New York,
Minnesota, Washington, Alabama, and Idaho) are currently participating. (Vermont
participates only with respect to prisoners seeking transfer to Canada.) As
previously noted, prisoner transfer treaties require the consent of three
parties: (1) the transferring State; (2) the receiving state and (3) the
prisoner, before a transfer can take place. In addition, a prisoner incarcerated
in a state institution must obtain the consent of the state's authorities as
well in order to transfer pursuant to a treaty (18 U.S.C. § 4102
(6)). Our bilateral prisoner transfer treaties, with Canada, for example,
provides in Article III (5) that the approval of the state or provincial
authority, as well as that of the federal authority, must be obtained in cases
involving prisoners sentenced by state or provincial courts.
Q. ARE U.S. MILITARY
PERSONNEL GOVERNED BY PRISONER TRANSFER TREATIES?
Yes. 10 U.S.C. § 955
provides that prisoner transfer treaties do apply to U.S. military personnel.
Q. WHAT CAN PRISONERS AND
FAMILIES DO PENDING APPROVAL OF AN APPLICATION?
International Prisoner Transfer Unit U.S. Department Of
Justice Criminal Division John C. Keeney Building, 12th
Floor Washington, D.C. 20530
Tel: 202-514-3173 Home Page:
http://www.usdoj.gov/criminal/oeo/index.htm
Q. WHERE CAN I FIND OUT MORE ABOUT
PRISONER TRANSFER?
A. The followed is a selected
bibliography about prisoner transfer:
Abramovsky, A Critical Evaluation Of The
American Transfer Of Penal Sanctions Policy, 61 Wis. L. Rev. 25 (1980).
Abramovsky And Eagle, A Critical
Evaluation Of The Mexican-American Transfer Of Penal Sanctions Treaty, 64 Iowa
L. Rev. 275 (1979).
Bassiouni, Perspectives On The Transfer
Of Prisoners Between The United States And Mexico And The United States And
Canada, 11 Vand. J. Transnat'l L. 249 (1978)
Emanuel, Ronald M., Intervention Of
Constitutional Powers: The Prisoner Transfer Treaties, Vol. Ii, No. Ii (Fall)
Florida International Law Journal, 203-225 (1986).
Lee, Consular Law and Practice, 121
(1961).
Note, American Prisoners In Foreign
Prisons: The Prisoner Transfer Treaties, 2 Dick. J. Int'l L. 331, 337
(1984).
Note, Constitutional Problems In The
Execution Of Foreign Penal Sentences: The Mexican-American Prisoner Transfer
Treaties, 90 Harv. L. Rev. 1500 (1977).
Note, Prisoner Transfer Treaties: Need
For The Elimination Or Modification Of The Retention Provision, 13 Cal. W.
Int'l. L. J. 321 (1983).
Note, Rosado V. Civiletti, 8 Syracuse J.
Int'l L. & Com. 186 (1980).
Note, Voluntary And Intelligent Consent
To Transfer Under Prisoner Exchange Treaty Estops Habeas Corpus Relief, 54 Temp.
L.Q. 357 (1981).
Paust, The Unconstitutional Detention Of
Prisoners By The United States Under The Exchange Of Prisoners Treaty, In
International Aspects Of Criminal Law: Enforcing United States Law In The World
Community 204 (Lillich Ed. 1981).
Pisani, Robert L. And Simon, Theodore,
The United States Treaties On Transfer Of Prisoners: A Survey, Vol. 17, Pacific
Law Journal 823-862 (1986).
Ristau and Abbell, International Judicial
Assistance, Criminal, Vol. 6: Prisoner Transfer, International Law Institute
(1986).
Robbins, A Constitutional Analysis Of The
Prohibition Against Collateral Attack In The Mexican-American Prisoner Exchange
Treaty, 26 UCLA L. Rev. 1 (1978).
Schaffer, Justice With Mercy: The
Treaties With Canada And Mexico For The Execution Of Penal Judgments, 4 Brooklyn
J. Intl. Law 246 (1978).
Stotzky And Swan, Due Process Methodology
And Prisoner Exchange Treaties: Confronting An Uncertain Calculus, 62 Minn. L.
Rev. 732 (1978).
Vagts, A Reply To "A Critical Evaluation
Of The Mexican-American Transfer Of Penal Sanctions Treaty", 64 Iowa L. Rev. 325
(1979)
Williams, Consular Access to Detained
Persons, 29 Int'l and Comp. L.Q. 239, 249 (1980).
Q. WHERE CAN I ADDRESS QUESTIONS ABOUT
PRISONER TRANSFER?
A. Questions about individual
arrest cases of U.S. citizens abroad should be addressed to the Office Of
American Citizens Services and Crisis Management, Overseas Citizens Services,
SA-29, Department Of State, 2201 C Street N.W., Washington, D.C. 20520, Tel:
(202) 647-5225 - or - (202) 647-5226.
Questions about U.S. Review Of
Application For Transfer should be addressed to the U.S. Central Authority, the
Office of Enforcement Operations, Prisoner Transfer Unit, Criminal Division,
U.S. Department Of Justice, John C. Keeney Building, 12th Floor,
Washington, D.C. 20530.
Questions about the background on
negotiation or implementation of prisoner transfer treaties should be addressed
to the Office Of Policy Review and Interagency Liaison, Overseas Citizens
Services, (CA/OCS/PRI), SA-29, Department of State, 2201 C Street N.W.,
Washington, D.C. 20520.
Questions regarding the administration of
prisoner sentences in the U.S. should be addressed to Chief, Defender Services
Division, Administrative Office of the U.S. Courts, Washington, D.C. 20544.
International Prisoner Transfer
Program Office of Enforcement
Operations
MULTILATERAL
CONVENTIONS
INTER-AMERICAN CONVENTION ON MUTUAL
ASSISTANCE IN CRIMINAL MATTERS
PREAMBLE
WHEREAS:
The Charter of the
Organization of American States, in Article 2.e, establishes that an
essential objective of the American states is "to seek the solution
of political, juridical, and economic problems that may arise among
them"; and
The adoption of common rules in the field of
mutual assistance in criminal matters will contribute to the
attainment of this goal,
THE MEMBER STATES OF THE
ORGANIZATION OF AMERICAN STATES
Do hereby adopt the following
Inter-American Convention on Mutual Assistance in Criminal
Matters:
CHAPTER I
GENERAL PROVISIONS
Article
1
PURPOSE OF THE CONVENTION
The states parties
undertake to render to one another mutual assistance in criminal
matters, in accordance with the provisions of this
convention.
Article 2
SCOPE AND APPLICATION OF THE
CONVENTION
The states parties shall render to one another
mutual assistance in investigations, prosecutions, and proceedings
that pertain to crimes over which the requesting state has
jurisdiction at the time the assistance is requested.
This
convention does not authorize any state party to undertake, in the
territory of another state party, the exercise of jurisdiction or
the performance of functions that are placed within the exclusive
purview of the authorities of that other party by its domestic
law.
This convention applies solely to the provision of
mutual assistance among states parties. Its provisions shall not
create any right on the part of any private person to obtain or
exclude any evidence or to impede execution of any request for
assistance.
Article 3
CENTRAL AUTHORITY
Each
state shall designate a central authority at the time of signature
or ratification of this convention or accession hereto.
The
central authorities shall be responsible for issuing and receiving
requests for assistance.
The central authorities shall
communicate directly with one another for all purposes of this
convention.
Article 4
In view of the diversity of the
legal systems of the states parties, the assistance to which this
convention refers shall be based upon requests for cooperation from
the authorities responsible for criminal investigation or
prosecution in the requesting state.
Article 5
DOUBLE
CRIMINALITY
The assistance shall be rendered even if the act
that gives rise to it is not punishable under the legislation of the
requested state.
When the request for assistance pertains to
the following measures: (a) immobilization and sequestration of
property and (b) searches and seizures, including house searches,
the requested state may decline to render the assistance if the act
that gives rise to the request is not punishable under its
legislation.
Article 6
For the purposes of this
convention, the act that gives rise to the request must be
punishable by one year or more of imprisonment in the requesting
state.
Article 7
SCOPE OF APPLICATION
The
assistance envisaged under this convention shall include the
following Procedures among others:
a. notification of rulings
and judgments;
b. taking of testimony or statements from
persons;
c. summoning of witnesses and expert witnesses to
provide testimony;
d. immobilization and sequestration of
property, freezing of assets, and assistance in procedures related
to seizures;
e. searches or seizures;
f. examination
of objects and places;
g. service of judicial
documents;
h. transmittal of documents, reports, information,
and evidence;
i. transfer of detained persons for the purpose
of this convention; and
j. any other procedure provided there
is an agreement between the requesting state and the requested
state.
Article 8
MILITARY CRIMES
This
convention shall not apply to crimes subject exclusively to military
legislation.
Article 9
REFUSAL OF
ASSISTANCE
The requested state may refuse assistance when it
determines that:
a. The request for assistance is being used
in order to prosecute a person on a charge with respect to which
that person has already been sentenced or acquitted in a trial in
the requesting or requested state;
b. The investigation has
been initiated for the purpose of prosecuting, punishing, or
discriminating in any way against an individual or group of persons
for reason of sex, race, social status, nationality, religion, or
ideology;
c. The request refers to a crime that is political
or related to a political crime, or to a common crime prosecuted for
political reasons;
d. The request has been issued at the
request of a special or ad hoc tribunal;
e. Public policy
(ordre public), sovereignty, security, or basic public interests are
prejudiced; and
f. The request pertains to a tax crime.
Nevertheless, the assistance shall be granted if the offense is
committed by way of an intentionally incorrect statement, whether
oral or written, or by way of an intentional failure to declare
income derived from any other offense covered by this convention for
the Purpose of concealing such income.
CHAPTER
II
REQUESTS FOR ASSISTANCE, PROCESSING AND EXECUTION
Article 10
REQUESTS FOR ASSISTANCE
Requests
for assistance issued by the requesting state shall be made in
writing and shall be executed in accordance with the domestic law of
the requested state.
The procedures specified in the request
for assistance shall be fulfilled in the manner indicated by the
requesting state insofar as the law of the requested state is not
violated.
Article 11
The requested state may postpone
the execution of any request that has been made to it, with an
explanation of its grounds for doing so, if it is necessary to
continue an investigation or proceeding in progress in the requested
state.
Article 12
Documents and objects delivered in
compliance with a request for assistance shall be returned to the
requested state as soon as possible, unless the latter decides
otherwise.
Article 13
SEARCH, SEIZURE, ATTACHMENT, AND
SURRENDER OF PROPERTY
The requested state shall execute
requests for search, seizure, attachment, and surrender of any
items, documents, records, or effects, if the competent authority
determines that the request contains information that justifies the
proposed action. That action shall be subject to the procedural and
substantive law of the requested state.
In accordance with
the provisions of this convention, the requested state shall
determine, according to its law, what requirements must be met to
protect the interests held by third parties in the items that are to
be transferred.
Article 14
MEASURES FOR SECURING
ASSETS
The central authority of any party may convey to the
central authority of any other party information it has on the
existence of proceeds, fruits, or instrumentalities of a crime in
the territory of that other party.
Article 15
The
parties shall assist each other, to the extent permitted by their
respective laws, in precautionary measures and measures for securing
the proceeds, fruits, and instrumentalities of the
crime.
Article 16
DATE, PLACE AND MODALITY OF THE
EXECUTION OF THE REQUEST FOR ASSISTANCE
The requested state
shall set the date and place for execution of the request for
assistance and may so inform the requesting state.
Officials
and interested parties of the requesting state or their
representatives may, after informing the central authority of the
requested state, be present at and participate in the execution of
the request for assistance, to the extent not prohibited by the law
of the requested state, and provided that the authorities of the
requested state have given their express consent
thereto.
CHAPTER III
SERVICE OF JUDICIAL DECISIONS,
JUDGMENTS, AND VERDICTS,
AND APPEARANCE OE WITNESSES AND
EXPERT WITNESSES
Article 17
At the request of the
requesting state, the requested state shall serve notice of
decisions, judgments, or other documents issued by the competent
authorities of the requesting state.
Article
18
TESTIMONY IN THE REQUESTED STATE
At the request of
the requesting state, any person present in the requested state
shall be summoned to appear before a competent authority, in
accordance with the law of the requested state, to give testimony or
to provide documents, records, or evidence.
Article
19
TESTIMONY IN THE REQUESTING STATE
When the
requesting state requests that a person appear in its territory to
give testimony or a report, the requested state shall invite the
witness or expert witness to appear voluntarily, without the use of
threats or coercive measures, before the appropriate authority in
the requesting state. If deemed necessary, the central authority of
the requested state may make a written record of the individual's
willingness to appear in the requesting state. The central authority
of the requested state shall promptly inform the central authority
of the requesting state of the response of the
person.
Article 20
TRANSFER OF PERSONS SUBJECT TO
CRIMINAL PROCEEDINGS
A person subject to criminal proceedings
in the requested state whose presence in the requesting state is
needed for purposes of assistance under this convention shall be
transferred temporarily to the requesting state for that purpose if
the person and the requested state consent to the transfer.
A
person subject to criminal proceedings in the requesting state whose
presence in the requested state is needed for purposes of assistance
under this convention shall be transferred temporarily to the
requested state if the person consents and both states
agree.
The actions set forth above may be denied for the
following reasons, among others:
a. the individual in custody
or serving a sentence refuses to consent to the transfer:
b.
as long as his presence is necessary in an investigation or criminal
proceeding that is under way in the jurisdiction to which he is
subject at the time;
c. there are other considerations,
whether legal or of another nature, as determined by the competent
authority of the requested or requesting state.
For purposes
of this article:
a. the receiving state shall have the
authority and the obligation to keep the transferred person in
physical custody unless otherwise indicated by the sending
state;
b. the receiving state shall return the transferred
person to the sending state as soon as circumstances permit or as
otherwise agreed by the central authorities of the two
states;
c. the sending state shall not be required to
initiate extradition proceedings for the return of the transferred
person;
d. the transferred person shall receive credit toward
service of the sentence imposed in the sending state for time served
in the receiving state; and
e. the length of time spent by
the person in the receiving state shall never exceed the period
remaining for service of the sentence or 60 days, whichever is less,
unless the person and both states agree to an extension of
time.
Article 21
TRANSIT
The states parties
shall render cooperation, to the extent possible, for travel through
their territory of the persons mentioned in the preceding article,
provided that the respective central authority has been given due
advance notice and that such persons travel in the custody of agents
of the requesting state.
Such prior notice shall not be
necessary when air transportation is used and no regular landing is
scheduled in the territory of the state party or states parties to
be overflown.
Article 22
SAFE-CONDUCT
The
appearance or transfer of the person who agrees to render a
statement or to testify under the provisions of this convention
shall require, if the person or the sending state so requests prior
to such appearance or transfer, that the receiving state grant
safe-conduct under which the person, while in the receiving state,
shall not:
a. be detained or prosecuted for offenses
committed prior to his departure from the territory of the sending
state;
b. be required to make a statement or to give
testimony in proceedings not specified in the request; or
c.
be detained or prosecuted on the basis of any statement he makes,
except in case of contempt of court or perjury.
The
safe-conduct specified in the preceding paragraph shall cease when
the person voluntarily prolongs his stay in the territory of the
receiving state for more than 10 days after his presence is no
longer necessary in that state, as communicated to the sending
state.
Article 23
In connection with witnesses or
expert witnesses, documents containing the relevant questions,
interrogatories, or questionnaires shall be forwarded to the extent
possible or necessary.
CHAPTER IV
TRANSMITTAL OF
INFORMATION AND RECORDS
Article 24
In cases where
assistance is carried out under this convention, the requested
state, upon request and in accordance with its domestic procedure,
shall make available to the requesting state a copy of the public
documents, records, or information held by the government agencies
or departments of the requested state.
The requested state
may make available copies of any document, record, or other
information held by a government agency or department of that state
that is not public in nature, to the same extent as and subject to
the same conditions under which they would be made available to its
own judicial authorities or to others responsible for application of
the law. The requested state, at its own discretion, may deny, in
whole or in part, any request made under the provisions of this
paragraph.
Article 25
LIMITATION ON THE USE OF
INFORMATION OR EVIDENCE
The requesting state may not
disclose or use any information or evidence obtained in the course
of application of this convention for purposes other than those
specified in the request for assistance without prior consent from
the central authority of the requested state.
In exceptional
cases, if the requesting state needs to disclose and use, in whole
or in part, the information or evidence for purposes other than
those specified, it shall request authorization therefor from the
requested state, which, at its discretion, may accede to or deny
that request in whole or in part.
The information or evidence
that must be disclosed and used to the extent necessary for proper
fulfillment of the procedure or formalities specified in the request
shall not be subject to the authorization requirement set forth in
this article.
When necessary, the requested state may ask
that the information or evidence provided remain confidential
according to conditions specified by the central authority. If the
requesting party is unable to accede to such request, the central
authorities shall confer in order to define mutually acceptable
terms of confidentiality.
CHAPTER
V
PROCEDURE
Article 26
Requests for assistance
shall contain the following details:
a. the crime to which
the procedure refers; a summary description of the essential facts
of the crime, investigation, or criminal proceeding in question; and
a description of the facts to which the request refers;
b.
proceeding giving rise to the request for assistance, with a precise
description of such proceeding;
c. where pertinent, a
description of any proceeding or other special requirement of the
requesting state;
d. a precise description of the assistance
requested and any information necessary for the fulfillment of that
request.
When the requested state is unable to comply with a
request for assistance, it shall return the request to the
requesting state with an explanation of the reason
therefor.
The requested state may request additional
information when necessary for fulfillment of the request under its
domestic law or to facilitate such fulfillment.
When
necessary, the requesting state shall proceed in accordance with the
provisions of the last paragraph of Article 24 of this
convention.
Article 27
Documents processed through the
central authorities in accordance with this convention shall be
exempt from certification or authentication.
Article
28
Requests for assistance and the accompanying documentation
must be translated into an official language of the requested state.
Article 29
The requested state shall be responsible
for all regular costs of executing a request in its territory,
except for those listed below, which shall be borne by the
requesting state:
a. fees for expert witnesses; and
b.
travel costs and other expenses related to the transportation of
persons from the territory of one state to that of the
other.
If it appears that the processing of the request might
entail unusual costs, the states parties shall confer to determine
the terms and conditions under which the assistance could be
rendered.
Article 30
To the extent that they find it
useful and necessary for furthering the implementation of this
convention, the states parties may exchange information on matters
related to its application.
Article 31
The domestic
law of each party shall govern liability for damages arising from
the acts of its authorities in the execution of this
Convention.
Neither party shall be liable for damages that
may arise from the acts committed by the authorities of the other
party in the formulation or execution of a request under this
Convention.
CHAPTER VI
FINAL CLAUSES
Article
32
This convention shall be open for signature by the member
states of the Organization of American States.
Article
33
This convention is subject to ratification. The
instruments of ratification shall be deposited with the General
Secretariat of the Organization of American States.
Article
34
This convention shall remain open for accession by any
other state. The instruments of accession shall be deposited with
the General Secretariat of the Organization of American can
states.
Article 35
Each state may make reservations to
this convention at the time of signature, approval, ratification, or
accession, provided that each reservation concerns at least one
specific provision and is not incompatible with the object and
purpose of the convention.
Article 36
This convention
shall not be interpreted as affecting or restricting obligations in
effect under any other international, bilateral, or multilateral
convention that contains or might contain clauses governing specific
aspects of international criminal judicial assistance, wholly or in
part, or more favorable practices which those states might observe
in the matter.
Article 37
This convention shall enter
into force on the thirtieth day following the date of deposit of the
second instrument of ratification.
For each state that
ratifies or accedes to the convention after the deposit of the
second instrument of ratification, the convention shall enter into
force on the thirtieth day after deposit by such state of its
instrument of ratification or accession.
Article 38
If
a state party has two or more territorial units in which different
systems of law govern matters addressed in this convention, it shall
state at the time of signature, ratification, or accession whether
this convention will apply to all of its territorial units or only
to one or more of them.
Such statements may be amended by way
of subsequent statements, which shall expressly indicate the
territorial unit or units to which the convention shall apply. Such
subsequent declarations shall be transmitted to the General
Secretariat of the Organization of American States, and shall become
effective thirty days after the date of their
receipt.
Article 39
This convention shall remain in
force indefinitely, but any of the states parties may denounce it.
The instrument of denunciation shall be deposited with the General
Secretariat of the Organization of American States. After one year
from the date of deposit of the instrument of denunciation, the
convention shall cease to be in effect for the denouncing state, but
shall remain in effect for the other states parties.
Article
40
The original instrument of this convention, the English,
French, Portuguese, and Spanish texts of which are equally
authentic, shall be deposited with the General Secretariat of the
Organization of American States, which shall forward authenticated
copies of the text to the United Nations General Secretariat for
registration and publication, in accordance with Article 102 of the
United Nations Charter. The General Secretariat of the Organization
of American States shall notify the member states of that
Organization and those states that have acceded to the convention of
the signatures and deposits of instruments of ratification,
accession, and denunciation, as well as of reservations, if any. It
shall also transmit to them the statements specified in Article 38
of this convention.
The International Prisoner Transfer
Program began in 1977 when our government negotiated the first in
a series of treaties to permit the transfer of prisoners from
countries in which they had been convicted of crimes to their home
countries. The program is designed to relieve some of the special
hardships that fall upon offenders incarcerated far from home, and
to facilitate the rehabilitation of these
offenders. Prisoners may be transferred to and from those
countries with which the United States has a treaty.
(Participating countries are listed on this site). While all
prisoner transfer treaties are negotiated principally by the
United States Department of State, the program itself is
administered by the United States Department of
Justice.
Our e-mail address
is: mailto:[email protected]? (This e-mail
address is to be used only for comments and suggestions to improve
our Web site. We will not respond to individual questions
about the program and/or specific cases).
nternational Prisoner Transfer Program
Unit Office of Enforcement Operations Criminal
Division
Chief: Paula Wolff
Guidelines for Evaluating Prisoner
Applications for Transfer.
(1) Likelihood of
social rehabilitation.
Beyond the practical
concerns of alleviating prison crowding and dealing
administratively with foreign national prisoners, many of whom
have very limited English language ability, the central rationale
behind transferring foreign prisoners to their home countries is
to facilitate the prisoner's social rehabilitation.
Rehabilitation is, of course, one of the principal purposes of
incarceration in civilized societies. This goal is expressly
stated in the Preambles to most of the prisoner transfer treaties
("to provide better administration of justice by adopting methods
furthering the offender's social rehabilitation," [Mexican
treaty]; "facilitating [the prisoner's] successful reintegration
into society," [Canadian treaty]; "further the ends of justice and
social rehabilitation of sentenced persons," [COE
Convention]). Prisoner transfer assumes that such social
rehabilitation is more likely to occur in the prisoner's home
country, closer to his family and within his own culture. In
addition, since many foreign national prisoners will be deported
when their sentences have been served, it may not make sense to
further their adjustment to a society in which they will not be
allowed to remain after release.
In evaluating whether social rehabilitation
really will be furthered by transferring a prisoner, a number of
factors are considered:
(a) Acceptance of responsibility. The acceptance of
responsibility is a condition precedent for rehabilitation.
Acceptance of responsibility is a positive factor for transfer,
and is demonstrated by cooperation with the authorities, providing
complete and candid information as to involvement in the offense,
and/or the timely entry of a guilty plea.
(b) Criminal history. For purposes of evaluating
rehabilitative potential, there is a difference between a low-
level, minor, first-time or infrequent offender, and a career
criminal. Contrast, for example, the rehabilitative
potential of an offender who was paid a few hundred dollars to
drive drugs into the United States, with that of a drug kingpin.
(c) Seriousness of the offense. The seriousness of the
offense, the critical factor in any sentencing decision, is
equally important in evaluating whether serving out all or most of
his sentence in the United States will do more for the prisoner's
rehabilitation than transferring him to what may be a less
punitive and possibly less lengthy incarceration.
(d) Criminal ties to the sending and receiving
countries. If a prisoner has criminal ties to the receiving
country, transferring him could well be more likely to facilitate
reintegration into his criminal milieu than to facilitate
rehabilitation into civil society.
(e) Family and other social ties to the sending and
receiving countries. This is a critical factor for two
reasons. First, it is an important assumption of the
prisoner transfer program that social rehabilitation is most
likely near the prisoner's family, and least likely far
away. Second, the most likely prediction about the
prisoner's behavior upon release is that he will reunite with his
family. If the prisoner's family is in the receiving
country, it is far more likely that he will stay there. If,
however, that family is in the sending country, one must assume
that the released prisoner will try to return to the sending
country, not only negating any social rehabilitation benefits from
transfer but also negating the prisoner's deportation as well.
There are obviously any number of
family situations, and no one rule can control every case.
Set out below is the general approach of the International
Prisoner Transfer Unit when the prisoner has family members
residing in the United States:
(i) Prisoner is single and childless.
Where his parents and siblings live will be controlling for this
category (except in the unusual case where the prisoner was raised
by others in the receiving country);
(ii) Prisoner is ceremonially married. The location of
the spouse is controlling. The presumption is that the
prisoner should be in the same country as his spouse;
(iii) Prisoner has a common law spouse.
The location of the common law spouse can be very important,
depending on the apparent longevity and stability of the common
law relationship (that is, how close in practice the common law
spouse is to a legal spouse) and whether any children,
particularly still minor children, have issued from it (that is,
how close the common law situation is to a traditional family);
(iv) Prisoner is either single or separated and has
children. The prisoner's relation to the children is
critical. For example, adult children living on their own in
the United States would normally be less of a factor against
transfer than minor children in the United States. Minor
children in the United States who have always lived with the other
parent and never, or almost never, with the prisoner would be less
of a factor against transfer than minor children for whom the
prisoner had been the custodial parent or to whom the prisoner had
otherwise been very close; in these cases, it is generally assumed
that transferring the prisoner away from the children would not
accomplish the social goals of transfer, and that the prisoner
would attempt to return to the children upon release.
(f) Transfers to third countries. Occasionally, we are
asked to transfer a prisoner whose most significant ties are
neither to the receiving country nor to the sending country, but
are to third country with which the United States does not have a
treaty. Such cases need to be carefully evaluated. If
the receiving country will accept the prisoner, if the prisoner is
not a major violator, and if incarceration there seems to be in
the prisoner's best interest, we will sometimes permit the
transfer to take place.
(g)
Humanitarian concerns. By this, we usually mean the terminal
illness of the prisoner or a member of his immediate family.
Occasionally, humanitarian concerns justify a transfer which would
otherwise not be approved, so long as the transfer would not
violate the treaty; an example of this would be the terminal
illness of the prisoner himself. Other times, humanitarian
concerns are simply treated as another factor supporting transfer;
an example of this would be the grave illness of a parent or
child. Illnesses for which the prisoner is being or could be
treated in the United States, or the advanced age of parents, do
not justify a transfer on humanitarian grounds.
(h) Length of time in the United States. Beyond the
legal requirements in the treaties with a domiciliary clause (see
above), length of time in the sending country is an important
social factor. If the prisoner has been in the United States
for such a long time that he has in fact become a member of this
society, his social rehabilitation will not be facilitated by
sending him to a different one.
(2) Law
enforcement concerns.
Social
rehabilitation is not the only purpose of incarceration, and
therefore cannot be the sole consideration in evaluating prisoner
transfer requests or take precedence over all other
objectives. Law enforcement and justice concerns must also
be considered, regardless of the possible consequences for the
prisoner's social rehabilitation. These considerations are
the normal ones in any sentencing or parole decision:
(a) Seriousness of the offense. The more serious the
offense, the more important the certainty of incarceration in the
place it was committed becomes.
(b) Public sensibilities. Would the return of the
prisoner to a foreign country so outrage public sensibilities
because of the extremely serious nature of the prisoner's crimes
or the circumstances surrounding the prisoner's crimes as to
outweigh the rehabilitation considerations?
(c) Public policy. Would the return of the prisoner to
a foreign country be contrary to the public policy of the United
States?
(d) Reintegration and renewed criminal activity in receiving
country. Are the prisoner's ties to criminal elements in his
home country such that his return there would simply facilitate a
resumption of his criminal activity? Would transfer enhance
the possibility of reprisal or intimidation.
(e) Possible sentencing disparity. When a prisoner is
transferred, responsibility for administering his sentence belongs
exclusively to the receiving country. Under most of the
bilateral treaties, the receiving country takes over the
transferred sentence, but that sentence is then carried out under
the laws and regulations of the receiving country, including any
provisions for reduction of the term of confinement by parole,
conditional release, good time release, or otherwise. Under
the French and Turkish bilateral treaties and the COE Convention,
the receiving country has the additional option of converting the
sending country's sentence, through either a judicial or
administrative procedure, into its own sentence; that is, the
receiving country may substitute the penalty under its own laws
for a similar offense. (There are certain limitations on
converting the sentence. The receiving country is bound by
the findings of facts insofar as they appear from the judgment,
cannot convert a prison term into a fine, and cannot lengthen the
prison term.) However, regardless of whether the sentence is
continued or converted, responsibility for administering it rests
solely with the receiving state.
(f) Law enforcement and prosecutorial needs in the sending
country. These must be considered before transfer, since
once the prisoner is transferred, the sending country no longer
has any authority or control over him. Before approving
transfer, the sending country must therefore consider factors such
as:
(i) Is the prisoner's testimony needed against codefendants?
(ii) Are there fugitives in the prisoner's case whose
apprehension would require the prisoner's presence to help make
the case against the them?
(iii) Are there other open cases or investigations involving
the prisoner?
(iv) Is there a need for further debriefing by law
enforcement agents in the sending country?
(g) Unpaid court-ordered assessments, fines, or
restitution. Because all supervisory authority over the
prisoner is terminated when the prisoner transfers, financial
obligations of the prisoner need to be settled prior to transfer.
(3) Likelihood
of Return to the United States.
Allowing a foreign national prisoner to
serve out the remainder of his United States sentence in his own
country only makes sense if the prisoner will remain in his own
country after his release. Therefore, a critical
consideration in evaluating a transfer request is whether in fact
the prisoner will stay in the receiving country, or will return to
the sending country. We look at a number of factors in
making this determination:
(a) Existing ties to the United States. This has been
discussed in detail under Family and other social ties to the
sending and receiving countries, above. The location of the
prisoner's family, his residence and domiciliary status in the
United States and the receiving country (for example, does he
still own a residence in the United States, does he have any
obvious residence in the receiving country), whether he had a
non-criminal occupation or professional career in the sending or
receiving country, the relative proximity of the receiving
country's borders to the United States and how easy or difficult
it would be as a practical matter to return to the United States,
and his immigration status, are all factors to take into account
in determining whether the prisoner would likely remain in the
receiving country.
(b) Previous prisoner transfer. If a prisoner has
previously been the beneficiary of a treaty transfer, he is
ineligible for transfer. Reapplications after a previous
transfer are always denied.
(c) Previous deportations and illegal reentries.
Recent deportation(s) or numerous illegal entries into the United
States will generally bar a treaty transfer.
Special Considerations for State
Prisoners.
(1) State approval required.
Where
a sentenced person has been convicted by a state of the United
States of crimes under the laws of that state and is in the
custody of authorities of that state (as opposed to having been
convicted in the federal courts of a crime under the United States
Code), the United States will not approve a transfer unless the
state first gives it consent.
(2) Deference to state requests.
Generally, the Department of Justice defers to a state's judgment,
and approves the transfer of state prisoners approved by the
state.
(3) Exceptions.
A
compelling federal interest will cause the Department to
disapprove a state request for the transfer of one of its
prisoners. The most frequently invoked federal interest is
the protection of our borders from illegal reentries by
transferred prisoners. Therefore, the Department will always
consider the likelihood that the prisoner will illegally return to
the United States before giving final approval to a state request
for transfer.
DISCLAIMER: the information in this circular is
provided for general information only and may not be totally applicable in
a particular case. Questions involving interpretation of foreign law
should be addressed to a foreign attorney.
This is an
official U.S. Government source. Inclusion of non-U.S. Government links
does not imply endorsement of contents.
INTERNATIONAL
EXTRADITION Extradition refers to the formal
process by which an individual is delivered from the country where
he is located, the requested country, to the requesting country in
order to face prosecution, or if already convicted, to serve a
sentence. The participants in extradition are therefore the two
countries and the individual who is the subject of the proceedings.
For example, if Germany is seeking to bring an individual
from the United States to Germany for prosecution of an offense that
occurred in Germany, then Germany is considered the "requesting"
country and the United States the "requested" country. On the other
hand, if the United States is seeking to bring an individual from
France to the United States for prosecution of an offense that
occurred in the United States, then the United States is considered
the "requesting country" and France the "requested
country."
Extradition is usually carried out pursuant to
a treaty between two countries (bilateral treaty) or between
multiple countries (multilateral convention). The United States
currently has extradition treaties in force with over 100 countries.
Extradition to the requesting country is
subject to the laws, procedures and policies of the requested
country. However, it is a process where an international extradition
criminal defense lawyer can have significant influence if he
thoroughly understands the laws and procedures governing
extraditions, in general, and the extradition treaty involving the
requesting country in particular. Furthermore, if the individual is
ultimately extradited to the requesting country, the manner in which
he is prosecuted or sentenced in the requesting country, may be
influenced for the better by having international extradition
criminal defense counsel involved from the very initial stages of
the extradition proceedings.
McNabb Associates, P.C. provides assistance
with International Prisoner Transfer that would allow a person
convicted of a crime in one country to be transferred to his country
of citizenship to serve the remainder of his sentence. Interested
individuals should ask their families to contact
McNabb Associates P.C.'s office. Families can help by hiring
competent counsel to prepare the transfer application and advocate
the prisoner's interests throughout the process.
More information can be found below on the
following subjects:
Q. IS IT
POSSIBLE FOR A PERSON CONVICTED OF A CRIME IN ONE COUNTRY TO BE
TRANSFERRED TO HIS/HER HOME COUNTRY WHERE HE/SHE WILL SERVE THE REMAINDER
OF HIS/HER SENTENCE?
A. Yes.
Under U.S. law (18 U.S.C. §§
4100-4115) foreign nationals convicted of a crime in the United
States, and United States citizens or nationals convicted of a crime in a
foreign country, may apply for a prisoner transfer to their home country
if a treaty providing for such transfer is in force between the
United States and the foreign country involved.
Q. WHAT
COUNTRIES DOES THE UNITED STATES HAVE PRISONER TRANSFER TREATIES WITH AT
PRESENT?
A. The
United States has 12 bilateral prisoner transfer treaties in force in
Bolivia, Canada, France, Hong Kong S.A.R., Marshall Islands, Mexico,
Micronesia, Palau, Panama, Peru, Thailand and Turkey.
In addition, the
United States is a party to two multilateral prisoner transfer
treaties.
The COE
Convention is in force in the following countries: Albania, Andorra,
Armenia, Australia, Austria, Azerbaijan, Bahamas, Belgium, Bolivia,
Bulgaria, Canada, Chile, Costa Rica, Croatia, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary,
Iceland, Ireland, Israel, Italy, Japan, Latvia, Liechtenstein, Lithuania,
Luxembourg, Macedonia (Former Yugoslav Republic of), Malta, Mauritius,
Moldova, the Netherlands (including Netherlands Antilles and Aruba),
Nicaragua, Norway (including Bouvet Island, Peter I's Island and Queen
Maud Land), Panama, Poland, Portugal, Romania, San Marino, Serbia and
Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tonga,
Trinidad and Tobago, Turkey, Ukraine, the United Kingdom (including
Anguilla, British Indian Ocean Territory, British Virgin Islands, Cayman
Islands, Ducie and Oena Islands, Falkland Islands, Gibraltar, Henderson,
Isle Of Man, Montserrat, Pitcairn, St. Helena and Dependencies and the
Sovereign Base Areas of Akrotiri and Dhekelia on the Island of Cyprus),
the United States and Venezuela.
The Inter-American Convention on Serving Criminal
Sentences Abroad (or OAS Convention). The U.S. signed the OAS
multilateral prisoner transfer treaty on January 10, 1995. The treaty
was submitted to the U.S. Senate for advice and consent to ratification
September 30, 1996. On September 27, 2000, the Senate Foreign Relations
Committee approved the OAS Prisoner Transfer Treaty. The Treaty was
approved by the U.S. Senate on October 18, 2000. The President signed
the instruments of accession, and on May 25, 2001 at 11:30 a.m., the
U.S. deposited the instruments of accession with the OAS. The Convention
entered into force for the U.S on June 24, 2001.
The OAS
Convention is in force in the following countries: Brazil, Canada, Chile,
Costa Rica, Mexico, Nicaragua, Panama, Paraguay, the United States and
Venezuela.
Q. WHERE CAN I
FIND THE TEXT OF PRISONER TRANSFER TREATIES?
Q. HOW CAN
OTHER COUNTRIES ENTER INTO A TREATY RELATIONSHIP WITH THE UNITED STATES TO
PERMIT PRISONER TRANSFER?
A. In
recent years, it has been the posture of the United States to encourage
countries which have approached us to consider acceding to a multilateral
convention rather than initiating the lengthy and costly process of
negotiating, signing, and ratifying new bilateral treaties. This is an
area where a multilateral approach, as exemplified by the Council of
Europe Convention, has proven effective in offering an existing mechanism
which new states can join, as well as standardizing transfer procedures
for current members.
Q. WHAT U.S.
LAW GOVERNS THE TRANSFER OF PRISONERS TO AND FROM FOREIGN
COUNTRIES?
A. The
United States has enacted legislation implementing all prisoner transfer
treaties. See 18 USC §§ 4100 et
seq. See also28
CFR 2.62.
Q. WHO MUST
AUTHORIZE THE TRANSFER OF THE PRISONER?
A. The
consent of the U.S. Government, the foreign government and the prisoner is
required for each transfer. If the person was convicted of a crime by a
state in the United States, and is serving a sentence in a state facility,
consent of the state is also required. The decision to transfer a prisoner
is a discretionary decision to be made by each country. See the Department of Justice
International Prisoner Transfer web site for further information.
Q. WHO IS
ELIGIBLE TO APPLY FOR TRANSFER?
A. A
prisoner may apply for transfer to a country of which he is a citizen or
national in accordance with the provisions of the governing treaty.
However, a prisoner is not eligible for transfer until the judgment and
sentence in his case is final; that is, when no appeals or collateral
attacks are pending. Some prisoner transfer treaties require that fines
imposed as part of the criminal sentence be paid prior to transfer.
Depending on the provisions of the governing treaty, prisoners who are
convicted of certain types of crimes (such as military offenses and
political offenses) or who have less than a specified amount of time
remaining on their sentences (normally six months or a year, depending on
the treaty involved), are not eligible for transfer.
Q. HOW DOES A
PRISONER APPLY FOR TRANSFER?
A. The
transfer process for a U.S. citizen incarcerated abroad usually begins
with the prisoner notifying the U.S. Embassy that he/she wishes to be
transferred under the treaty. Thereafter, the U.S. Department of Justice,
in its discretion, determines whether a prisoner can transfer to the
United States, pursuant to internal Guidelines for
Evaluation of Prisoner Transfer Applications. If the U.S.
Department of Justice concurs, the U.S. Embassy will contact the foreign
ministry. The U.S. Embassy will also assist the prisoner in transmitting
the necessary paperwork to the appropriate government authorities,
normally the respective Attorney Generals' offices. Should the prisoner's
request for transfer be approved by both governments, a consent
verification hearing (CVH) will be held, and arrangements will be made
between the two governments for the prisoner's transfer to be effected at
a time mutually agreeable to the governments.
The transfer of
foreign prisoners incarcerated in the United States follows a similar
process. Additional information about the transfer of foreign prisoners
can be found in the Federal Bureau of Prisons' Program Statement on
International Prisoner Transfer (search for Program Statement 5140.29
- Treaty Transfer of Offenders To or From Foreign Countries).
Q. WHAT
DOCUMENTATION IS REQUIRED TO APPLY FOR A TRANSFER?
A.
Documents required for prisoner transfer applications vary depending on
the treaty and the laws or procedures of the country in which a prisoner
is incarcerated. United States citizens or nationals incarcerated abroad
should contact U.S. consular authorities at the U.S. embassy or consulate,
who will assist inmates in obtaining the necessary documents and
completing any required forms.
Foreign nationals
incarcerated in the United States should consult prison authorities about
their interest in transfer. In the case of foreign nationals in federal
prisons, prison authorities will arrange for submission of the necessary
documents to the United States Department of Justice, which serves as the
Central Authority for international prisoner transfer. Documentation
provided to the Department of Justice generally includes:
Form or letter
signed by prisoner indicating interest in transfer
Birth certificate
or passport
Judgment or
sentence
Pre-sentence
report
Fingerprints and
photograph
Sentence
calculation
Prison progress
report (security level, disciplinary reports, prison jobs, program
participation, psychological evaluation, current medical condition)
Immigration
status
Family and
residence
information
Q. WHAT
HAPPENS ONCE A TRANSFER REQUEST HAS BEEN APPROVED BY THE UNITED STATES AND
THE FOREIGN COUNTRY?
A.
Arrangements are made to conduct a consent verification hearing for the
prisoner.
Q. WHAT IS A
CONSENT VERIFICATION HEARING?
A. United
States law (18 U.S.C. §
4108) requires that a prisoner transferring into or out of the United
States give his/her consent before being transferred. This is done at a
hearing called a consent verification hearing (CVH). For prisoners
transferring from foreign countries to the United States the CVH is
normally conducted by a United States magistrate judge in the foreign
country prior to the transfer date. This hearing may occur anywhere from a
day or two before transfer to as much as two months before transfer. Some
countries are sensitive to the idea of a United States magistrate
conducting a CVH in the host country. If this poses a serious problem,
another U.S. official, such as a consular officer, can be commissioned to
act as the hearing officer. Prisoners seeking transfer to the United
States have the right to consult an attorney, at their expense, if they
wish. If they cannot afford an attorney, they may request that they be
represented by a United States Public Defender. If they make such a
request, the U.S. Public Defender will be appointed and will travel to the
foreign country to discuss with the prisoner the effects of transferring.
If the prisoner still wishes to transfer, he/she would then appear before
the hearing officer at the CVH and give his/her consent to the transfer.
Special arrangements are made for handling cases involving minors or the
mentally ill (18 U.S.C. §
4102(8) and (9)).
Q. AFTER THE
CONSENT OF A PRISONER SEEKING TRANSFER TO THE UNITED STATES HAS BEEN
VERIFIED, HOW IS THE PHYSICAL TRANSFER OF THAT PRISONER BACK TO THE UNITED
STATES ACCOMPLISHED?
A.
Officials of the Federal Bureau of Prisons travel to the foreign country
to escort the prisoner to the United States. The transferee returns to the
United States in the custody of these officials and is placed in a federal
prison. Because of security concerns, information about specific dates and
timing of a transfer are not provided to the prisoner, family or other
persons until the actual transfer has occurred as a matter of security
policy of the Federal Bureau of Prisons.
Q. ONCE A U.S.
CITIZEN HAS BEEN TRANSFERRED TO THE UNITED STATES, HOW IS HIS/HER FOREIGN
SENTENCE ADMINISTERED?
A. At the
outset it is important to recognize that a transferred prisoner has no
right to appeal, modify, set aside, or otherwise challenge his/her foreign
conviction in a United States court or administrative agency after being
transferred back to the United States. (18 U.S.C. § 3244(1)) Such
authority remains with the courts in the sentencing country. However, the
United States must execute the sentence imposed by the foreign country. To
do so it must go through a careful analysis to determine how a comparable
crime would be punished in the United States and then determine a release
date for such an offense. The responsibility for determining the release
date, as well as any period of supervised release and conditions that will
apply, has been given to the United States Parole Commission, an
administrative agency within the United States Department of Justice.
See18 U.S.C. §
4106A (for offenses committed on or after November 1, 1987); 18 U.S.C. §
4106 (for offenses committed before November 1, 1987).
The process for
determining the release date for the transferred prisoner begins shortly
after the prisoner enters the United States. Following the prisoner's
return to the United States, the Federal Bureau of Prisons designates an
appropriate federal institution for service of the sentence after
considering a number of factors, including the nature of the offense, the
sentence imposed, prior history of the prisoner, and the prisoner's home
area. Next, a United States probation officer, who is located near the
institution in which the prisoner is incarcerated, reviews the documents
submitted by the sentencing country which describe the offense committed
by the prisoner. After reviewing these materials, the probation officer
interviews the prisoner and prepares a post-sentence report. The Parole
Commission then schedules a special transferee hearing. Prior to this
hearing, the transferred prisoner is provided with an opportunity to be
represented by counsel.
At the hearing,
the Parole Commission is presented with information and arguments
regarding the appropriate period of imprisonment. Following the hearing,
the Parole Commission deliberates and determines the date on which the
prisoner will be released on supervised release. It also determines the
length of the supervised release period and the conditions of supervised
release. While on supervised release, the prisoner is supervised in the
community for a specified period of time by a probation officer. An
offender on supervised release must abide by certain terms and conditions.
A violation of the conditions of supervised release could result in the
revocation of the supervised release and a return to prison.
In determining an
appropriate release date and the length of the supervised release period,
the Parole Commission considers many factors, including the nature of the
offense, whether the prisoner has accepted responsibility for his actions,
and the sentence that would be applied for a comparable federal offense
under the United States Sentencing Guidelines. It is important to stress
that, in determining a suitable release date from the foreign sentence,
the Parole Commission cannot overturn the prisoner's conviction, reduce or
modify the original sentence, or make findings of fact that are
inconsistent with the findings of the foreign court. Although the release
date determined by the Parole Commission may sometimes be less than the
duration of the sentence imposed by the foreign country, it can never be
greater than the foreign sentence. 18 U.S.C. §
4106A(b)(1)(C). A transferred prisoner who is dissatisfied with the
decision of the Parole Commission may appeal the decision to the United
States Court of Appeals.
The Federal
Bureau of Prisons will compute the sentence. The prisoner will receive
credit for all the time spent in custody from the day of arrest.
Additionally, the release date set by the Parole Commission may be reduced
by any foreign labor and good time credits earned prior to the transfer.
The prisoner will also received good time credits earned in the United
States. 18 U.S.C. §
4105. (A transferred prisoner, like all regular federal prisoners, is
expected to abide by prison rules and, if he fails to do so, he/she risks
losing good conduct time credits.)
After a prisoner
is released from the custody of the Bureau of Prisons, a probation
officer, usually from the prisoner's home district, will be responsible
for supervising the prisoner during any period of supervised release that
has been imposed. During this period the offender must report regularly to
the probation officer and must abide by all of the conditions that have
been imposed in connection with the term of supervised release. Failure to
do so could result in a United States court revoking the supervised
release and returning the offender to prison to serve the remainder of the
sentence.
Additional
questions regarding this subject should be directed to the United States
parole Commission. For additional information see the United
States Parole Commission web site.
Q. WHEN A
FOREIGN NATIONAL WHO IS SERVING A SENTENCE IN A STATE FACILITY IN THE
UNITED STATES WISHES TO APPLY FOR A TRANSFER, WHAT PROCEDURES
APPLY?
A. There
is a distinction between prisoners serving sentences in State or local
facilities and prisoners convicted in federal courts serving sentences in
federal facilities in the United States. See the Department of Justice
International Prisoner Transfer web site for a listing of States
Participating in the Program and a discussion of the Transfer of
State Prisoners. Some states in the United States lack enthusiasm for
prisoner transfer treaties and some have indicated an unwillingness to
participate in such transfers. Forty-four of the 50 states, and the
Commonwealth of the Northern Mariana Islands have enacted implementing
legislation but only a handful (Arizona, Florida, Illinois, Massachusetts,
New Mexico, New York, Minnesota, Washington, Alabama, and Idaho) are
currently participating. (Vermont participates only with respect to
prisoners seeking transfer to Canada.) As previously noted, prisoner
transfer treaties require the consent of three parties: (1) the
transferring State; (2) the receiving state and (3) the prisoner, before a
transfer can take place. In addition, a prisoner incarcerated in a state
institution must obtain the consent of the state's authorities as well in
order to transfer pursuant to a treaty (18 U.S.C. § 4102
(6)). Our bilateral prisoner transfer treaties, with Canada, for
example, provides in Article III (5) that the approval of the state or
provincial authority, as well as that of the federal authority, must be
obtained in cases involving prisoners sentenced by state or provincial
courts.
Q. ARE U.S.
MILITARY PERSONNEL GOVERNED BY PRISONER TRANSFER TREATIES?
Yes. 10 U.S.C. § 955
provides that prisoner transfer treaties do apply to U.S. military
personnel.
Q. WHAT CAN
PRISONERS AND FAMILIES DO PENDING APPROVAL OF AN
APPLICATION?
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