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Agreement of Co-operation regarding the Transfer of Persons Incarcerated under Sentence between the Government of Canada and the Government of the Kingdom of Morocco [1996] CATSer 27 (1 December 1996)

E102460 - CTS 1996 No. 32

AGREEMENT OF CO-OPERATION REGARDING THE TRANSFER OF PERSONS INCARCERATED UNDER SENTENCE BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE KINGDOM OF MOROCCO

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE KINGDOM OF MOROCCO,

DESIRING to facilitate the reintegration into society of persons incarcerated under sentence,

CONSIDERING that this objective may be attained by enabling persons incarcerated under sentience, with their consent, to serve their sentence of deprivation of liberty in the country of which they are nationals,

HAVE AGREED as follows:

ARTICLE 1

Definitions

For the purposes of the Agreement, the expression:

A. "sentence" means any punishment involving deprivation of liberty ordered by a court on account of a criminal offence;

B. "judgment" means it decision or order of a court imposing an enforceable sentence;

C. "sentencing State" means the State in which the sentence was imposed on the person who may be transferred;

D. "administering State" means the State to which the sentenced person may be transferred in order to serve his sentence;

E. "national" means, for Canada, a Canadian citizen and, for the Kingdom of Morocco, a Moroccan citizen;

F. "competent authority" means, in Canada, the Solicitor General or his duly authorized representative and, in Morocco, the Minister of Justice or his duly authorized representative;

G. "sentenced person"' means any person, including a young offender for Canada or a minor for Morocco, against whom a judgment has been pronounced on the territory of either Party and who is incarcerated therein.

ARTICLE 2

General Principles

1. The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Agreement.

2. A person sentenced on 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 shall express in writing his interest to the sentencing State or to the administering State in being transferred under this Agreement.

3. Transfer may be requested by either the sentencing State or the administering State.

ARTICLE 3

Conditions of Transfer

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

A. That person is a national of the administering State;

B. The judgment is enforceable;

C. At the time of receipt of the request for transfer the sentenced person still has at least one year of the sentence to serve;

D. The person, or his representative where one of the two States considers it: necessary because of his age or his physical or mental condition, must consent to the transfer;

E. The elements of the offence upon which the sentence has been imposed constitutes a criminal offence according to the law of each of the two States; and

F. The sentencing State and the administering State 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 that specified in paragraph 1 C of this Article.

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.

3. The information shall include:

A. the surname, given 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 resulting in the sentence as well as the legal definition of such offence;

D. the nature, duration and date of commencement of the sentence; and

E. the written request for transfer by the sentenced person.

4. If the sentenced person has expressed his wish to the administering State to be transferred under this Agreement the sentencing State shall on request communicate to that State the information referred to in paragraph 3 of this Article.

5. 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. Communications between the Parties shall be made, for Canada, through the Department of the Solicitor General and, for Morocco, through the Department of Justice.

3. Each Party may, by declaration, indicate to the other that it will use diplomatic channels, in particular for the transmission of the request for transfer and of the decision taken by the Parties whether or not to agree to the requested transfer.

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

ARTICLE 6

Documents to be Furnished

1. The administering State, if requested by the sentencing State, shall furnish it with:

A. 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 facts 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.

2. If the request is agreed to, the sentencing State shall provide the following documents to the administering State:

A. a certified copy of the judgment and the legal provisions 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 referred to in Article 3 1 D;

D. whenever appropriate, any medical or social reports on the sentenced person, information about his behaviour or the mode of incarceration applied to him, and any recommendation concerning him.

3. The sentencing State and the administering State may each 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 consent of the sentenced person, referred to in Article 3 1 D of this Agreement, is given voluntarily and with full knowledge of the facts.

2. To this end, the consent of the sentenced person or, if necessary, of his representative, shall be verified by a person duly empowered to receive it.

3. The sentencing State shall afford an opportunity to the administering State to verify, through a consul or other official agreed upon with the administering State, that the consent is given in accordance with the conditions set out in the preceding paragraphs.

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 as soon as the sentenced has been taken into charge.

2. A sentenced person transferred to serve a sentence under this Agreement may not be tried or sentenced in the administering State for the same offence upon which the sentence to be enforced was based.

ARTICLE 10

Continued Enforcement

1. Enforcement of a sentence shall be governed by the law of the administering State, which alone is competent to determine the terms and conditions of enforcement of the sentence.

2. Where the sentence imposed by the sentencing State is not prescribed in the law of the administering State, the latter shall substitute for the said sentence that punishment or measure prescribed by its own law for a similar offence, and shall so inform the sentencing State before agreeing to the request for transfer. 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 sentence 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 or other legal rules.

ARTICLE 12

Review of Judgment

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

ARTICLE 13

Termination of Enforcement

The administering State shall comply with any decision or measure taken by the sentencing State which has the effect of reducing or eliminating the sentence.

ARTICLE 14

Information on Enforcement

The administering State shall furnish information to the sentencing State concerning the enforcement of the sentence in the following cases:

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

B. if the sentenced person has escaped from custody before the sentence has been completed; or

C. if the sentencing State requests a report on the conditions of enforcement.

ARTICLE 15

Languages and Costs

1. Any communication of information and any request for transfer of a sentenced person shall be made in the official language or in one of the official languages of the Party to which the communication or request is addressed, unless otherwise agreed to by an exchange of letters.

2. Any costs incurred exclusively in the territory of the sentencing State shall be borne by that State; any other costs incurred in connection with the transfer of a sentenced person shall be borne by the administering State, unless otherwise agreed to by the Parties by an exchange of letters.

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

Final Dispositions

1. Each of the Parties shall notify the other upon completion of the procedures required to allow this Agreement to enter into force.

2. This Agreement shall enter into force on the first day of the second month following the date of receipt of the later notification.

3. Each of the two Parties may terminate this Agreement at any time by sending the other, through diplomatic channels, written notice of termination. In this case, termination shall take effect one year after the date the said notice is received.

4. This Agreement shall, however, continue to apply to the enforcement of sentences of persons who have been transferred in conformity with the provisions of this Agreement before the date on which such a termination takes effect.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, have signed this Agreement.

DONE at Rabat on 4 May 1987, in the Arabic, English and French languages, all three texts being equally authentic.

Monique Landry

FOR THE GOVERNMENT OF CANADA

Mustapha Belarbi Alaoui

FOR THE GOVERNMENT OF THE KINGDOM OF MOROCCO