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Treaty on Transfer of Offenders between Canada and the Federative Republic of Brazil [1998] CATSer 13 (16 May 1998)

E102462 - CTS 1998 No. 8

TREATY ON TRANSFER OF OFFENDERS BETWEEN CANADA AND THE FEDERATIVE REPUBLIC OF BRAZIL

The Governments of Canada and the Federative Republic of Brazil, desirous of furthering the social rehabilitation of offenders by permitting them to serve their sentences in the country of which they are nationals,

HAVE AGREED as follows:

ARTICLE I

1. Sentences imposed on nationals of Canada in the Federative Republic of Brazil may be served in accordance with the provisions of this Treaty.

2. Sentences imposed in Canada on nationals of the Federative Republic of Brazil may be served in accordance with the provisions of this Treaty.

ARTICLE II

For purposes of the present Treaty,

a) 'Sending State' means the Party from which the offender is transferred.

b) 'Receiving State' means the Party to which the offender is transferred.

c) A 'national' means, in the case of Canada, a Canadian citizen.

d) A 'national' means, in the case of Brazil, a Brazilian as defined by the Brazilian Constitution.

e) 'Offender' means a person who has been convicted of a crime and sentenced in the territory of one of the Parties.

ARTICLE III

Application of the present Treaty shall be subject to the following conditions:

a) The offence for which the sentence was imposed must also constitute a criminal offence in the Receiving State.

b) The offender must be a national of the Receiving State.

c) At the time the request specified in paragraph (3) of Article V is made, at least six months of the sentence must remain to be served.

d) That no proceeding by way of appeal or of collateral attack upon the offender's conviction or sentence is pending in the Sending State and that the prescribed time for appeal of the offender's conviction or sentence has expired.

ARTICLE IV

Each party shall designate an Authority responsible for carrying out the functions set forth under this Treaty.

ARTICLE V

1. Each party shall explain the substance of the present Treaty to any offender to whom it may apply.

2. Any transfer of offenders made under the present Treaty shall be at the initiative of the Sending State. No provision of this Treaty shall be construed as preventing an offender from submitting to the Sending State a petition for transfer.

3. If an offender requests a transfer and the Sending State approves it, the Sending State shall transmit the request to the Receiving State through diplomatic channels.

4. If the Receiving State approves a request, it shall notify the Sending State and take the necessary measures to effect the transfer; otherwise, it shall inform the Sending State of its refusal without delay.

5. In reaching their decision concerning a transfer, each Party shall consider all factors that may contribute to the offender's rehabilitation.

6. If the Receiving State approves a transfer, the Sending State shall afford an opportunity to the Receiving State, if it so desires, to verify, prior to the transfer, the offender's informed consent to the transfer.

7. No offender shall be transferred unless the sentence is of a duration, or converted to a duration by appropriate authorities in the Receiving State, that is enforceable in the Receiving State.

8. The Sending State shall provide the Receiving State with a statement indicating the offence of which the offender has been convicted, the duration of the sentence, and the amount of time already served, including any pre-trial detention; and containing as well a report with particulars of the offender's behaviour while incarcerated, for purposes of determining eligibility for benefits afforded under the laws of the Receiving State. This statement shall be translated into the language of the Receiving State and duly authenticated. The Sending State shall also provide the Receiving State with a certified copy of the sentence handed down by the competent judicial authority, together with any amendments thereto. It shall also provide any other information that may help the Receiving State determine how best to treat the offender in order to bring about the offender's social rehabilitation.

9. The Receiving State may request additional information where it considers that the documents supplied by the Sending State do not enable it to carry out the provisions of this Treaty.

10. Each Party shall take the necessary legislative measures and, where required, shall establish adequate procedures, to give, for the purposes of this Treaty, legal effect within its territory to sentences pronounced by courts of the other Party.

ARTICLE VI

1. The Sending State shall hand over an offender to the Receiving State at a place agreed to by the Parties. The Receiving State shall be responsible for the custody and transport of an offender to the prison or place where the sentence should be completed; and in each case, as necessary, the Receiving State shall request the cooperation of third countries for transit of an offender through their territories. In special cases, by agreement between both Parties, the Sending State shall assist in said requests made by the Receiving State.

2. The Receiving State shall be responsible for all expenses incurred with respect to an offender from the time when the offender passes into its custody.

3. The completion of the sentence of an offender who has been transferred shall be in accordance with the laws and procedures of the Receiving State. However, the Sending State shall retain the right to pardon or grant amnesty to the offender, and the Receiving State shall release the offender immediately upon receiving notification of such pardon or amnesty.

4. Under no circumstances may the sentence handed down by the Sending State be increased or extended by the Receiving State.

5. At the request of one of the Parties, the other Party shall provide a report on the status of confinement of any offender transferred under this Treaty, including in particular parole or release.

6. Except as otherwise, provided in this Treaty, an offender transferred under the provisions of this Treaty shall not be deprived of any rights under the laws of the Receiving State beyond those which the fact of the offender's conviction may in and of itself have created.

ARTICLE VII

The Sending State alone shall have jurisdiction over any appeal or application for reversal of a judgment handed down by its courts. Upon receipt of due notice from the Sending State, the Receiving State undertakes to enforce any changes made to the sentence being served.

ARTICLE VIII

An offender transferred under the terms of this Treaty may not be arrested, tried or sentenced in the Receiving State for the same offence, which gave rise to the sentence.

ARTICLE IX

1. This Treaty may be extended to persons subject to supervision or other measures under the laws of one of the Parties relating to youthful offenders. The Parties shall, in accordance with their laws, agree to the type of treatment to be accorded such individuals upon transfer. Consent for the transfer shall be obtained from the legally authorized person.

2. Nothing in this Treaty shall be interpreted to limit the ability which the Parties may have, independent of this Treaty, to grant or accept the transfer of youthful or other offenders.

ARTICLE X

1. The present Treaty shall be subject to ratification. The exchange of instruments of ratification shall take place in Brazil.

2. The present Treaty shall enter into force thirty (30) days after the exchange of instruments of ratification and shall remain in effect for a period of three years.

3. If neither Party notifies the other of its intention to withdraw at least ninety (90) days before the expiration of the abovementioned period, this Treaty shall remain in force for successive three-year periods.

4. In the event that either party withdraws from the present treaty, its provisions shall remain in force in respect of those offenders who have already been transferred, until the completion of their respective sentences.

DONE in duplicate in the English, French and Portuguese languages, each version being equally authentic, at Brasilia this Fifteenth day of July 1992.

William L. Clarke

FOR THE GOVERNMENT OF CANADA

Celso Lafer

FOR THE GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL