[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.




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