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Treaty between the Government of Canada and the Government of the Argentine Republic on the Transfer of Offenders [2008] CATSer 5 (11 August 2008)

E104972

TREATY BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE ARGENTINE REPUBLIC ON THE TRANSFER OF OFFENDERS

THE GOVERNMENT OF THE ARGENTINE REPUBLIC AND THE GOVERNMENT OF CANADA, hereinafter referred to as "the Parties";

WISHING to promote mutual cooperation in the field of criminal justice;

PERSUADED that the essential object of sentences is the social reintegration of convicted persons;

CONSIDERING that to achieve such object it would be advantageous to give foreign national offenders, who were deprived of their freedom for having committed a crime, the possibility of serving the sentence in the country of their nationality.

HAVE AGREED as follows:

ARTICLE I

General principles

1. Sentences or security measures imposed in the Argentine Republic on Canadian citizens may be served in Canada in penal institutions or under the supervision of Canadian authorities in accordance with the provisions of this Treaty.

2. Sentences or security measures imposed in Canada on nationals of the Argentine Republic may be served in the Argentine Republic in penal institutions or under the supervision of authorities of the Argentine Republic in accordance with the provisions of this Treaty.

3. A person's status as national of the Receiving State shall be taken into account at the moment the transfer is requested.

ARTICLE II

Definition

For the purposes of this Treaty:

a) "Sentencing State" means the Party convicting the offender and from which the offender shall be transferred;

b) "Receiving State" means the Party to which the offender shall be transferred; and

c) "offender" means a person who, in the territory of either Party, has been sentenced to imprisonment, a term of conditional release or any other form of community supervision.

ARTICLE III

Requirements for transfer

To act in accordance with the Treaty, the following requirements shall be met:

a) That the conduct for which the offender was sentenced is one which is punishable as a crime in the Receiving State. For this purpose, no account shall be taken of differences in terminology or those that have no bearing on the nature of the offence;

b) That the offender is a citizen or national of the Receiving state, as the case may be;

c) That the person has not been convicted of a strictly military offence;

d) That at least six months of the sentence remain to be served at the time of the application;

e) That the sentence is final, in other words, that no proceeding by way of appeal or by extraordinary review procedure of the conviction or sentence is pending in the Sentencing State and that the prescribed time for appeal has expired;

f) That the offender has consented to the transfer; and

g) That the Sentencing and Receiving States agree to the transfer.

ARTICLE IV

Authority

1. The Parties shall communicate through diplomatic channels or other channels agreed to by the Parties with the authority responsible for performing the functions envisaged in this Treaty.

2. For the purposes of paragraph 1 of this article, the designated authority shall be in relation to the Argentine Republic, the Ministry of Justice, Security and Human Rights; in relation to Canada, the Solicitor General of Canada.

Article V

Information and consent

1. The competent authorities of the Sentencing State shall inform all offenders who are nationals of the other Party about the substance of this agreement.

2. The consent of the offender to be transferred shall be stated in writing.

3. The formalities for the expression of consent shall be governed by the law of the Sentencing State.

ARTICLE VI

Requests and replies

1. The offender may present his or her request for transfer to the Sentencing State or the Receiving State.

2. The request for transfer may be made by the Sentencing State or the Receiving State.

3. Requests and replies shall be made in writing and communicated without delay to the Parties referred to in Article IV through the channel described in that referred article.

4. The Receiving State and the Sentencing State shall retain absolute discretion to approve or refuse the transfer.

5. In making their decision, each Party shall consider all factors that may contribute to the offender's social reintegration.

6. An offender shall be informed, in writing, of any action and decision taken by either state on the request.

ARTICLE VII

Consent and its verification

Before the transfer, the Sentencing State shall afford an opportunity to the Receiving State, if it so desires, to verify through an officer designated by the Receiving State, that the offender's consent to the transfer has been given voluntarily and with full knowledge of the legal consequences thereof.

ARTICLE VIII

Obligation to furnish information

1. The Sentencing State shall furnish to the Receiving State a certified copy of the judgement convicting the offender, a statement of facts upon which the sentence was based, a copy of the laws applied, information on the nature, duration and date of commencement of the sentence and a statement indicating how much of the sentence has already been served, including any pre-trial detention and remission of sentence.

2. The Sentencing State shall provide, whenever appropriate, any medical or social reports on the offender, information about his or her treatment in the Sentencing state and any recommendations for further treatment.

3. The Receiving State may request any additional information regarding the offender to enable it to carry out the provisions of this Treaty.

4. The above information shall be translated into an official language of the Receiving state and duly authenticated.

ARTICLE IX

Procedure for transfer

1. The transfer of the offender shall occur at a place agreed to by both Parties.

2. The Receiving State shall be responsible for the custody and transport of the offender to the prison, penitentiary, or place where the sentence shall be completed.

3. The Receiving State shall be responsible for expenses incurred by it in the transfer of the offender from the time when the offender passes into its custody until the completion of the sentence.

ARTICLE X

Procedures for execution of sentence

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

2. If, however, the sentence is incompatible with the laws of the Receiving State, that State may adapt the sentence to one which is prescribed by its own law for a similar offence. The sentence shall not aggravate, by its nature or duration, the sanctions imposed in the Sentencing State or exceed the prescribed maximum in the Receiving State.

3. Except as otherwise provided in this Treaty, the completion of the transferred offender's sentence shall be in accordance with the laws and procedures of the Receiving State. However, the Sentencing State shall retain the right to pardon or grant amnesty to the offender or commute his or her sentence, and the Receiving State shall take appropriate action upon receiving notification of such pardon, amnesty or commutation of sentence.

4. On receipt of a written request from the Sentencing State, the Receiving State shall provide information regarding the administration of the sentence.

5. An offender transferred under this Treaty may not again be detained, tried or sentenced in the Receiving State for the same offence upon which the sentence to be executed is based.

ARTICLE XI

Young offenders

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 on the type of treatment to be accorded to such individuals upon transfer. Consent for the transfer shall be obtained from the person legally authorized to consent on behalf of the young person.

ARTICLE XII

Adaptation to domestic law

In order to carrying out the purposes of this Treaty, each Party shall take whatever legislative measures are necessary and shall establish adequate administrative procedures so that the sentences imposed shall have legal effect within their respective territories.

ARTICLE XIII

Final provisions

1. This Treaty shall apply to the service of sentences pronounced before or after its entry into force.

2. This treaty shall be subject to ratification and shall enter into force on the date on which the respective instruments of ratification are exchanged. It shall remain in force indefinitely. Either Party may notify the other, in writing, at any time of its intention to terminate this Treaty and it shall cease to be in force 180 days after the date of notification.

IN WITNESS whereof, the undersigned, duly authorised by their respective Governments, have signed this Treaty.

DONE at Buenos Aires, on 3rd of July 2003, in two original versions in English, French and Spanish, each version being equally authentic.

Thomas MacDonald

FOR THE GOVERNMENT OF CANADA

Rafael Bielsa

FOR THE GOVERNMENT OF THE ARGENTINE REPUBLIC