[Senate Treaty Document 104-35]
[From the U.S. Government Publishing Office]
104th Congress Treaty Doc.
SENATE
2d Session 104-35
_______________________________________________________________________
INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD, DONE IN
MANAGUA, NICARAGUA, ON JUNE 9, 1993, SIGNED ON BEHALF OF THE UNITED
STATES AT THE OAS HEADQUARTERS IN WASHINGTON ON JANUARY 10, 1995
September 30, 1996.--Convention was read the first time and, together
with the accompanying papers, referred to the Committee on Foreign
Relations and ordered to be printed for the use of the Senate
LETTER OF TRANSMITTAL
----------
The White House, September 30, 1996.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Inter-American
Convention on Serving Criminal Sentences Abroad, drawn up by
the Committee on Juridical and Political Affairs within the
Permanent Council of the Organization of American States (OAS)
and composed of representatives of the Member States. The
Convention was adopted and opened for signature at the twenty-
third regular session of the General Assembly meeting in
Managua, Nicaragua, on June 9, 1993, and signed on behalf of
the United States at the OAS Headquarters in Washington on
January 10, 1995. The provisions of the Convention are
explained in the report of the Department of State that
accompanies this message.
Although the United States is already a party to the
multilateral Council of Europe Convention on the Transfer of
Sentenced Persons, which entered into force for the United
States, following Senate advice and consent to ratification, on
July 1, 1985, only two other OAS Member States have become
parties to that Convention. Ratification of the Inter-American
Convention on Serving Criminal Sentences Abroad would help fill
a void by providing a mechanism for the reciprocal transfer of
persons incarcerated in prisons in OAS Member States, to permit
those individuals to serve their sentences in their home
countries. A multilateral prisoner transfer convention for the
Americas would also reduce, if not eliminate, the need for the
United States to negotiate additional bilateral prisoner
transfer treaties with countries in the hemisphere.
I recommend that the Senate promptly give its advice and
consent to the ratification of this Convention, subject to an
understanding and a reservation that are described in the
accompanying State Department report.
William J. Clinton.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, August 9, 1996.
The President,
The White House.
The President: I have the honor to submit to you, with the
recommendation that it be transmitted to the Senate for its
advice and consent to ratification, the Inter-American
Convention on Serving Criminal Sentences Abroad, which was
adopted and opened for signature at the twenty-third regular
session of the OAS General Assembly meeting in Managua,
Nicaragua, on June 9, 1993. It was signed on behalf of the
United States at the OAS Headquarters in Washington on January
10, 1995. As of April 13, 1996, it had been signed by six other
countries: Costa Rica, Venezuela, Canada, Panama, Mexico, and
Ecuador. Two countries, Canada and Venezuela, have deposited
instruments of ratification: Canada on June 4, 1995, and
Venezuela on March 14, 1996. The Convention entered into force
on April 13, 1996, thirty days after the deposit of the second
instrument of ratification. The Department of State is hopeful
that once the United States ratifies the Convention, other
states in the region will take the necessary steps to become
party to the Convention.
The purpose of the Convention is to facilitate the transfer
of foreign prisoners to their home countries by establishing
procedures that can be initiated by prisoners who prefer to
serve their sentences there. The means employed to achieve this
purpose are basically similar to those embodied in bilateral
prisoner transfer treaties that are now in force between the
United States and eight other countries, and in the
multilateral Council of Europe Convention on the Transfer of
Sentenced Persons. The major advantages of concluding a
multilateral convention with the OAS member States are the
establishment of uniform procedures and the saving of resources
that would be required to negotiate and bring into force
bilateral treaties with a large number of countries in the
hemisphere.
The general principles of the Convention are stated in
Article II, in which the parties undertake to afford each other
the fullest cooperation in respect of the transfer of sentenced
persons. The Article provides, subject to the conditions of
Article 3, that a sentence imposed upon a national of another
state party may be served by the sentenced person in the state
of which that person is a national.
Article III sets out the conditions for transfer. The seven
conditions are: that the sentnece is final; that the sentenced
person consents to the transfer, having been previously
informed of the legal consequences of such a transfer; that the
act for which the sentence has been imposed constitutes a crime
in the State to which the prisoner is to be transferred; that
the person is a national of the state to which he or she is to
be transferred; that the sentence to be served is not the death
penalty; that at least six months of the sentence remains to be
served at the time the request for transfer is made; and that
administration of the sentence is not contrary to domestic law
in the state to which the person is to be transferred.
Article IV obliges a Party to inform any sentenced person
to whom the Convention may apply of the substance of the
Convention. Provision is also made for keeping the sentenced
person informed of the processing of a transfer request.
Articles V and VI provide modalities for processing
requests and replies and specify supporting documents that may
be required in connection with transfer requests. Article V
states that a request for transfer of a sentenced person from
one state to another may be made by the sentencing state, the
receiving state, or the sentenced person. Article V also
provides that if the sentence is handed down by a state or
province with criminal jurisdiction independent from that of
the federal government, the approval of the authorities of that
state or province shall be required for the transfer. Article
VI requires that the sentencing state inform the requesting
state immediately of its decision not to approve the transfer
of a sentenced person, and, whenever appropriate, explain its
reasons for the refusal.
To ensure that the Convention may be implemented
consistently with existing legislation pertaining to prisoner
transfer, I recommend that the following understanding to
Articles III, IV, V, and VI be included in the United States
instrument of ratification:
The United States of America understands that the
consent requirements in Articles III, IV, V, and VI are
cumulative; that is, that each transfer of a sentenced
person under this Convention shall require the
concurrence of the sentencing state, the receiving
state, and the prisoner, and that in the circumstances
specified in Article V, paragraph 3, the approval of
the state or province concerned shall also be required.
I also recommend the following reservation to Article V:
With respect to Article V, paragraph 7, the United
States of America will require that whenever one of its
nationals is to be returned to the United States, the
sentencing state provide the United States with the
documents specified in that paragraph in the English
language, as well as the language of the sentencing
state. The United States undertakes to furnish a
translation of those documents into the language of the
requesting state in like circumstances.
Article VII deals with the rights of the sentenced person.
A sentenced person who is transferred under this Convention may
not be arrested, tried, or sentenced again in the receiving
state for the same offense upon which the sentence to be
executed is based. Except as provided under Article VIII, the
sentence of a sentenced person who is transferred shall be
served in accordance with the laws and procedures of the
receiving state, including application of any provisions
relating to reduction of time of imprisonment or of alternative
service of the sentence. The receiving state may not enforce a
sentence so as to lengthen that sentence beyond the date on
which it would expire under the terms of the sentence of the
court in the sentencing state.
Article VIII provides that the sentencing state shall
retain full jurisdiction for the review of sentences issued by
its courts, and retains the power to grant pardon, amnesty, or
mercy to the sentenced person. Upon notification to the
receiving state of such decision, that state must take the
corresponding measures immediately.
Article IX provides for the application of the Convention
in special cases. Recognizing that this Convention may be
applicable to persons subject to supervision or other measures
under one of the state party's laws relating to youthful
offenders, consent for the transfer of such persons shall be
obtained from the person legally authorized to grant it. Also,
by special agreement between the parties, the Convention may be
applied to persons whom the competent authority in the
sentencing state has pronounced unindictable (most likely,
because the appropriate authorities have judged the persons
mentally incompetent), so that such persons may receive
treatment in the receiving state. In accordance with their
laws, the parties shall agree on the type of treatment to be
accorded such individuals upon transfer. For the transfer,
consent must be obtained from the person legally authorized to
grant it.
Article X deals with the transfer of a sentenced person
across the territory of a third state party to the convention.
In such case, the third state shall be notified by transmittal
of the decision granting the transfer by the state under whose
custody the transfer is to be effected. The state of transit
may or may not consent to the transit of the sentenced person
through its territory.
Article XI provides that each state party shall, upon
signing, ratifying, or acceding to the Convention, advise the
General Secretariat of the Organization of American States of
the central authority it has designated to perform the
functions under the Convention. For the United States, the
central authority shall be the U.S. Attorney General, who also
has that responsibility under the multilateral Council of
Europe Convention on the Transfer of Sentenced Persons, as well
as under the bilateral prisoner transfer treaties between the
United States and other countries.
Article XII provides that none of the stipulations of the
Convention shall be construed to restrict other bilateral or
multilateral treaties or other agreements between the parties.
Articles XIII to XIX contain the final clauses of the
Convention. Article XVI permits states to set forth
reservations to the Convention at such time as they approve,
sign, ratify, or accede to it. Article XVIII deals with
denunciation of the Convention by one of the parties. Any state
party may denounce the Convention at any time by registering
its denunciation with the General Secretariat of the
Organization of American States; denunciation shall be
effective one year from the date of such denunciation. The
provisions of the Convention shall remain in force, however,
for the denouncing state with respect to sentenced persons
transferred in accordance with the Convention, until the
respective sentences have been served. Requests for transfer
being processed at the time the Convention is denounced would
continue to be processed and executed unless the parties agreed
otherwise.
It is my belief that this Convention affords substantial
benefits to the United States. With the proposed understanding,
the Convention is fully consistent with the provisions of
Public Law 95-144, 18 U.S.C. Sec. Sec. 4110-4115, enacted by
the Congress to implement treaties relating to the transfer of
offenders to or from foreign countries. No new legislation will
be required.
The Department of Justice joins in recommending that this
Convention be transmitted to the Senate at an early date for
its advice and consent to ratification, subject to the
understanding and reservation to Articles III, IV, V, and VI
previously described.
Respectfully submitted,
Warren Christopher.