[Senate Treaty Document 105-7]
[From the U.S. Government Publishing Office]
105th Congress Treaty Doc.
SENATE
1st Session 105-7
_______________________________________________________________________
AGREEMENT WITH HONG KONG ON THE TRANSFER OF SENTENCED PERSONS
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
THE AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND THE GOVERNMENT OF HONG KONG FOR THE TRANSFER OF SENTENCED PERSONS,
SIGNED AT HONG KONG ON APRIL 15, 1997
May 6, 1997.--Agreement 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, May 5, 1997.
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 Agreement
Between the Government of the United States and the Government
of Hong Kong for the Transfer of Sentenced Persons signed at
Hong Kong on April 15, 1997. I transmit also, for the
information of the Senate, the report of the Department of
State with respect to this Agreement.
At present, transfers of sentenced persons between the
United States and Hong Kong (in either direction) are conducted
pursuant to the 1983 multilateral Council of Europe Convention
on the Transfer of Sentenced Persons, which is in force for
both the United States and the United Kingdom, and which the
latter has extended to Hong Kong. Effective July 1, 1997,
however, when Hong Kong reverts to the sovereignty of the
People's Republic of China, the Council of Europe Convention
will no longer provide a basis for such transfers.
The agreement signed on April 15, 1997, will provide a
basis for such transfers to continue after Hong Kong's
reversion. The agreement is modeled after both the Council of
Europe Convention and other bilateral prisoner transfer
treaties to which the United States is a party. It would
establish essentially the same procedures as are now followed
with respect to transfers of prisoners between the United
States and Hong Kong, and would continue the requirement that
all transfers be consented to by the sentencing state, the
sentenced person, and the receiving state. When the sentenced
person has been sentenced under the laws of a State of the
United States, the consent of the authorities of that State
will also be required.
I recommend that the Senate of the Untied States promptly
give its advice and consent to the ratification of this
Agreement.
William J. Clinton.
LETTER OF SUBMITTAL
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Department of State,
Washington, April 21, 1997.
The President,
The White House.
The President: I have the honor to submit to you the
Agreement between the Government of the United States of
America and the Government of Hong Kong for the Transfer of
Sentenced Persons (``the Agreement''), which was signed at Hong
Kong on April 15, 1997. I recommend that the Agreement be
transmitted to the Senate for its advice and consent to
ratification.
The purpose of the Agreement is to facilitate, after Hong
Kong reverts to the sovereignty of the People's Republic of
China on July 1, 1997, the transfer of persons sentenced in the
United States and in Hong Kong to their home territory to serve
their sentences. The Agreement achieves this purpose by
establishing procedures that can be initiated by sentenced
persons who prefer to serve their sentences in their home
territory. The means employed to achieve this purpose are
similar in all important respects to those embodied in existing
bilateral prisoner transfer treaties 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 United States and Hong Kong have been exchanging
prisoners under the terms of the Council of Europe Convention,
to which the United States and the United Kingdom are parties
and which has been extended by the latter to Hong Kong and
other specific territories under U.K. sovereignty. The People's
Republic of China is not a party to the Council of Europe
Convention and has not agreed that the Convention should
continue to apply to Hong Kong after reversion to Chinese
sovereignty on July 1, 1997. Nonetheless, the Chinese
government, acting through the Sino-U.K. Joint Liaison Group,
authorized the Hong Kong government to negotiate a bilateral
agreement on transfer of sentenced persons with the United
States to apply after reversion. The attached agreement
represents the results of these authorized negotiations.
Article 1 contains definitions of the terms used in the
Agreement.
The general principles of the Agreement are stated in
Article 2, in which the parties undertake to apply the
Agreement in their respective territories and to transfer
sentenced persons to the other party to serve the sentence
imposed by the transferring party. For these purposes, Hong
Kong constitutes Hong Kong Island, Kowloon, and the New
Territories.
Article 3 provides that each party designate a ``central
authority'' to implement the Agreement; both parties designate
their respective Attorneys General.
Article 4 sets out the conditions for transfer, which are:
that the act or omission for which the sentence has been
imposed constitutes a crime under the laws of the receiving
Party; that the sentenced person is a permanent resident of
Hong Kong (where Hong Kong is the receiving Party); that the
sentenced person is a citizen or national of the United States
(where the United States is the receiving party); that at least
one year of the sentence remains to be served at the time the
request for transfer is received (in exceptional cases, the
parties may agree to a transfer even if less time has been
served); that the judgment is final and no further proceedings
relating to the offenses are pending within the jurisdiction of
the transferring party; and that both Parties and the person to
be transferred agree to the transfer. When the United States is
the transferring party, and the sentenced person has been
sentenced by a state court of the United States, the consent of
state authorities is also required in addition to the consent
of federal authorities.
Article 5 requires that the person to be transferred has
consented voluntarily and with knowledge of the consequences
thereof, and that an official designated by the receiving party
has verified that the consent was voluntary.
Article 6 provides that enforcement of the sentence by the
transferring Party will be suspended once the sentenced person
is taken charge of by the receiving Party and that the sentence
shall not be enforced if the receiving Party considers
enforcement of the sentence to have been completed.
Article 7 obliges a Party to inform any sentenced person to
whom the Agreement may apply of the substance of the Agreement.
Provision is also made for keeping the sentenced person
informed of the processing of a transfer request.
Article 7 also provides modalities for processing requests
and replies and specifies supporting documents that may be
required in connection with transfer requests. It permits a
request for transfer of a sentenced person from one Party to
the other to be made by the transferring (sentencing) Party,
the receiving Party, or the sentenced person.
Article 8 addresses the continued enforcement of the
sentence after transfer, providing that such enforcement shall
be governed by the laws of the receiving Party and may be
adapted in certain circumstances.
Article 9 provides, however, that the transferring Party
shall retain exclusive jurisdiction for purposes of reviewing
the conviction.
Article 10 requires either Party to cooperate in
facilitating the transit of a sentenced person being
transferred to another Party from a third jurisdiction.
Article 11 addresses the language to be used in making
requests and the allocation of expenses. Written communications
between the Parties must be in an official language of the
Party to which they are addressed. It is understood that, for
these purposes, English will be considered the official
language of the United States.
Article 12 provides for the settlement of disputes through
diplomatic channels if the Central Authorities are unable to
reach agreement.
Article 13 permits application of the Agreement to persons
sentenced before or after the Agreement's entry into force.
Article 14 provides that the agreement will enter into
force thirty days after the Parties have notified each other in
writing that their respective requirements for entry into force
of the Agreement have been completed. Either party may
terminate the Agreement upon three months written notice to the
other Party.
It is my belief that this Agreement affords substantial
benefits to the United States. The Agreement 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. Consistent with the Hong Kong Policy Act of
1992, we would consider Hong Kong to be a country for purposes
of Public Law 95-144. Thus no new legislation will be required.
The Department of Justice joins in recommending that this
Agreement be transmitted to the Senate at the earliest possible
opportunity for its advice and consent to ratification, subject
to the understanding previously described.
Respectfully submitted,
Madeleine Albright.