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Agreement between the Government of Canada and the Government of the Arab Republic of Egypt on the Transfer of Sentenced Persons [2000] CATSer 9 (10 May 2000)

E102464 - CTS 2000 No. 9

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE ARAB REPUBLIC OF EGYPT ON THE TRANSFER OF SENTENCED PERSONS

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE ARAB REPUBLIC OF EGYPT, hereinafter referred to as the “Contracting Parties”;

DESIRING the facilitation of legal cooperation and the successful reintegration of sentenced persons into society; and

CONSIDERING that this objective should be fulfilled by giving foreigners who are deprived of their liberty as a result of their commission of a criminal offence the opportunity to serve their sentences in their own Country,

HAVE AGREED as follows:

ARTICLE 1

Definitions

For the purpose of the Agreement:

(a) “Judgement” means a decision or order of a court or tribunal imposing a sentence;

(b) “Citizen” means any person who possesses the citizenship of either of the two contracting Parties as defined in their respective citizenship laws. Citizenship shall be reckoned as at the date of the request;

(c) “Sentenced person” means a person who is for the time being required to be detained in a prison, hospital, or any other institution in the transferring State by virtue of a judgement made in that State;

(d) “Receiving State” means the state to which the sentenced person may be, or has been, transferred in order to serve a sentence;

(e) “Sentence” means any punishment or measure ordered by a court involving deprivation of liberty for a limited or unlimited period of time; and

(f) “Transferring State” means the State in which the sentence was imposed on the person who may be, or has been, transferred.

ARTICLE 2

General Principles

1. A person sentenced in the territory of one Party may be transferred to the territory of the other Party in accordance with the provisions of this Agreement in order to serve the sentence imposed. To that end, the person may express an interest to the transferring State or to the receiving State in being transferred under this Agreement.

2. Transfer may be requested by either the transferring State or the receiving State.

3. The Parties shall, in accordance with their laws, agree on the type of treatment to be accorded to young offenders. Consent for the transfer shall be obtained from the person legally authorized to consent on behalf of the young person.

ARTICLE 3

Conditions for Transfer

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

(a) The sentenced person is a citizen of the receiving State;

(b) The judgement is final or the sentenced person has waived any rights of appeal;

(c) At the time of receipt of the request for transfer, the sentenced person still has at least six months of the sentence to serve or the sentence is indeterminate;

(d) Consent to the transfer is given by the sentenced person or, where in view of the person’s age or physical or mental condition either Party considers it necessary, by a person authorized to act on the person’s behalf;

(e) The acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the receiving State or would constitute a criminal offence if committed on its territory; and

(f) The transferring and receiving states agree to the transfer.

ARTICLE 4

Obligation to Furnish Information

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

2. If the sentenced person has expressed an interest to the transferring State in being transferred under this Agreement, that State shall so inform the receiving State as soon as practicable.

3. The information shall include:

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

(b) the person’s address, if any, in the receiving State;

(c) a statement of facts upon which the sentence was based; and

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

4. If the sentenced person has expressed an interest to the receiving State, the transferring State shall, on request, communicate to that State the information referred to in Paragraph 3.

5. The sentenced person shall be informed, in writing, of any action taken by the transferring State or the receiving State under the preceding paragraphs, as well as any decision taken by either State on a request for transfer.

ARTICLE 5

Requests and Replies

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

2. Requests shall be addressed by the Relevant Authority of the requesting State to the Relevant Authority of the requested State. Replies shall be communicated through the same channel.

3. For the purposes of Paragraph 2 of this Article, the Relevant Authority shall be

for Canada:

the Solicitor General of Canada;

and for the Arab Republic of Egypt:

the Minister of Justice.

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

5. Either Party may refuse the transfer of a prisoner without the need to provide any explanation. The sentencing State shall have the right to refuse all requests from the receiving State involving drug or terrorist offences.

6. In making its decision, each Party shall consider all factors that may contribute to the offender’s social reintegration.

ARTICLE 6

Requested Documents

1. If a transfer is requested, the transferring State shall provide the following documents to the receiving State, unless either State has already indicated that it will not agree to the transfer:

(a) a copy of the judgement and the law on which it is based;

(b) a statement indicating how much of the sentence has already been served, including information on any pre-trial detention, remission and any other factor relevant to the enforcement of the sentence;

(c) a declaration containing the consent to the transfer referred to in Article 3.1(d); and

(d) whenever appropriate, any medical or social reports on the sentenced person, information about the treatment in the transferring State and any recommendation for the person’s further treatment in the receiving state.

2. The receiving State, if requested by the transferring State, shall furnish it with the following documents:

(a) a copy of the relevant law of the receiving State which provides that the acts or omissions on account of which the sentence has been imposed in the transferring State constitute a criminal offence according to the law of the receiving State or would constitute a criminal offence if committed on its territory; and

(b) a statement of the effect in relation to the sentenced person of any relevant law or regulation relating to the person’s detention in the receiving State after the transfer.

3. Either State may ask to be provided with any of the documents or reports referred to in Paragraph 1 or 2 above before making a request for transfer or taking a decision on whether or not to agree to the transfer.

4. The documents that are provided by either State under the terms of the Agreement shall be exonerated from legalization formalities except where a request is made to the contrary.

ARTICLE 7

The Verification of Consent

1. The transferring State shall ensure that the person required to give consent to the transfer in accordance with Article 3.1(d) does so voluntarily and with full knowledge of the legal consequences thereof. The procedure for giving consent shall be governed by the law of the transferring State.

2. The transferring State shall afford the opportunity to the receiving State to verify, through a consul or other person designated by the latter State for this purpose, that the consent is given in accordance with the conditions set out in Paragraph 1 above.

ARTICLE 8

Handover of Sentenced Persons and Effect of Transfer for Transferring State

1. The delivery of the sentenced person by the Relevant Authority of the transferring State to the Relevant Authority of the receiving State shall occur at a place to be agreed upon between the two States. The receiving State shall be responsible for the custody and transport of the sentenced person from the transferring State.

2. The taking into charge of the sentenced person by the authorities of the receiving State shall have the effect of suspending the enforcement of the sentence in the transferring State.

3. The transferring State may no longer enforce the sentence if the receiving State considers enforcement of the sentence to have been completed.

ARTICLE 9

Effect of Transfer for Receiving State

1. The competent authority of the receiving State shall continue the enforcement of the sentence immediately without further order, or through a judicial order as provided for by its law, under the conditions set out in Article 10.

2. The enforcement of the sentence shall be governed by the law of the receiving State, and that State alone shall be competent to take all appropriate decisions.

ARTICLE 10

Enforcement of Sentence

1. Subject to Paragraph 2 of this Article, the receiving State shall be bound by the legal nature and the duration of the sentence as determined by the transferring State.

2. If, however, this sentence is by its nature or its duration incompatible with the law of the receiving State or with the purports of such law, that State may, by a court order, adapt the sanction to the punishment or the measure prescribed by its law for a similar offence. As to its nature, the punishment or the measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or its duration, the sanction imposed in the transferring State, nor exceed the maximum prescribed by the law of the receiving State.

3. A sentenced person transferred under this Agreement shall not be tried or sentenced in the receiving State for the acts or omissions on account of which the sentence was imposed in the transferring State and shall not be detained for those acts or omissions except in accordance with this Agreement.

ARTICLE 11

Conversion of Sentence

1. In the case of conversion of sentence, the procedures provided for by the law of the receiving State shall apply. When converting the sentence, the competent authority:

(a) shall be bound by the findings as to the facts in so far as they appear explicitly or implicitly from the judgement imposed in the sentencing State;

(b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction;

(c) shall deduct the full period of deprivation of liberty served by the sentenced person; and

(d) shall not aggravate the penal position of the sentenced person and shall not be bound by any minimum that the law of the receiving State may provide for the offence or offences committed.

2. If the conversion procedure takes place after the transfer of the sentenced person, the receiving State shall keep that person in custody or otherwise ensure that person’s presence in the receiving State pending the outcome of that procedure.

3. The receiving State shall inform the transferring State of its intent to convert a sentence and the results of the conversion.

ARTICLE 12

Pardon, Amnesty, Commutation

Unless the transferring and the receiving States agree otherwise, the transferring State alone may grant pardon, amnesty, or commutation of the sentence in accordance with its constitution or other laws.

ARTICLE 13

Review of Judgement

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

ARTICLE 14

Termination of Enforcement

The receiving State shall terminate enforcement of the sentence as soon as it is informed by the transferring State of any decision or measure as a result of which the sentence ceases to be enforceable.

ARTICLE 15

Information on Enforcement

The receiving state shall provide information to the transferring State concerning the enforcement of the sentence:

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

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

(c) if the transferring State requests a special report.

ARTICLE 16

Transit

If either Party enters into arrangements with any third State for the transfer of sentenced persons, the other Party shall cooperate in facilitating the transit through its territory of sentenced persons being transferred pursuant to such arrangements, except that it may refuse to grant transit to any sentenced person who is one of its own citizens. The Party intending to make such a transfer shall give advance notice to the other Party of such transit.

ARTICLE 17

Costs and Language

1. Any costs incurred in the application of this Agreement shall be borne by the receiving State, except costs incurred exclusively in the territory of the transferring State.

2. All communications from Canada related to this Agreement shall be made in Arabic with a translation into English or French, and from the Arab Republic of Egypt in Arabic with a translation into English or French.

ARTICLE 18

Temporal Application

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

ARTICLE 19

Final Provisions

1. This Agreement shall enter into force on the date on which the Parties have informed one another by an exchange of diplomatic notes that their respective procedures for approval have been completed.

2. This Agreement shall remain in force for five years from the date upon which it enters into force. Thereafter it shall continue in force for successive periods of five years. It shall be renewed automatically unless either Party gives written notice to the other Party at least six months before the conclusion of any such period, of its intention to terminate it.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.

DONE at Cairo in two originals, this tenth day of November 1997, in the English, French and Arabic languages, all versions being equally authentic.

Lloyd Axworthy

FOR THE GOVERNMENT OF CANADA

Amre Moussa

FOR THE GOVERNMENT OF THE ARAB REPUBLIC OF EGYPT