| United Nations | A/RES/45/119 |
General Assembly
Distr. GENERAL
14 December 1990
ORIGINAL:
ENGLISH
A/RES/45/119
68th plenary meeting
14 December 1990
45/119. Model Treaty on the Transfer of Supervision of Offenders
Conditionally Sentence or Conditionally Released
The General Assembly,
Bearing in mind the Milan Plan of Action, adopted by the Seventh
United Nations Congress on the Prevention of Crime and the Treatment of
Offenders and approved by the General Assembly in its resolution 40/32 of 29
November 1985,
Bearing in mind also the Guiding Principles for Crime Prevention and
Criminal Justice in the Context of Development and a New International
Economic Order, principle 37 of which stipulates that the United Nations
should prepare model instruments suitable for use as international and
regional conventions and as guides for national implementing legislation,
Recalling resolution 13 of the Seventh Congress, on the transfer of
supervision of foreign offenders who have been conditionally sentenced or
conditionally released, in which the Committee on Crime Prevention and Control
was requested to study this subject and to consider the possibility of
formulating a model treaty in this area,
Acknowledging the valuable contributions made by Governments,
non-governmental organizations and individual experts to the drafting of a
model treaty on the transfer of supervision of offenders conditionally
sentenced or conditionally released, in particular the International Expert
Meeting on the United Nations and Law Enforcement, held under the auspices of
the United Nations at Baden, Austria, from 16 to 19 November 1987, the
Interregional Preparatory Meeting for the Eighth United Nations Congress on
the Prevention of Crime and the Treatment of Offenders on topic V, "United
Nations norms and guidelines in crime prevention and criminal justice:
implementation and priorities for further standard setting" and the
regional preparatory meetings for the Eighth Congress,
Convinced that the establishment of bilateral and multilateral
arrangements for transfer of supervision of offenders conditionally sentenced
or conditionally released will greatly contribute to the development of more
effective international co-operation in penal matters,
Conscious of the need to respect human dignity and recalling the rights
conferred upon every person involved in criminal proceedings, as embodied in
the Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights,
1. Adopts the Model Treaty on the Transfer of Supervision of Offenders
Conditionally Sentenced or Conditionally Released, contained in the annex to
the present resolution, as a useful framework that could be of assistance to
States interested in negotiating and concluding bilateral or multilateral
treaties aimed at improving co-operation in matters of crime prevention and
criminal justice;
2. Invites Member States, if they have not yet established treaty
relations with other States in the area of the transfer of supervision of
offenders conditionally sentenced or conditionally released, or if they wish
to revise existing treaty relations, to take into account the Model Treaty
whenever doing so;
3. Urges all Member States to strengthen international co-operation in
criminal justice;
4. Also urges Member States to inform the Secretary-General
periodically of efforts undertaken to establish arrangements on the transfer
of supervision of offenders conditionally sentenced or conditionally released;
5. Requests the Committee on Crime Prevention and Control to conduct
periodic reviews of the progress attained in this field;
6. Requests the Secretary-General to assist Member States, at their
request, in the development of treaties on the transfer of supervision of
offenders conditionally sentenced or conditionally released and to report
regularly thereon to the Committee.
ANNEX
Model Treaty on the Transfer of Supervision of Offenders
Conditionally Sentenced or Conditionally Released
The and the
Desirous of further strengthening international co-operation and mutual
assistance in criminal justice, on the basis of the principles of respect for
national sovereignty and jurisdiction and of non-interference in the internal
affairs of States,
Believing that such co-operation should further the ends of justice, the
social resettlement of sentenced persons and the interests of the victims of
crime,
Bearing in mind that the transfer of supervision of offenders
conditionally sentenced or conditionally released can contribute to an
increase in the use of alternatives to imprisonment,
Aware that supervision in the home country of the offender rather than
enforcement of the sentence in a country where the offender has no roots also
contributes to an earlier and more effective reintegration into society,
Convinced, therefore, that the social rehabilitation of offenders and the
increased application of alternatives to imprisonment would be promoted by
facilitating the supervision of conditionally sentenced or conditionally
released offenders in their State of ordinary residence,
Have agreed as follows:
ARTICLE 1
Scope of application
1. The present Treaty shall be applicable, if, according to a final
court decision, a person has been found guilty of an offence and has been:
(a) Placed on probation without sentence having been pronounced;
(b) Given a suspended sentence involving deprivation of liberty;
(c) Given a sentence, the enforcement of which has been modified
(parole) or conditionally suspended, in whole or in part, either at the time
of the sentence or subsequently.
2. The State where the decision was taken (sentencing State) may
request another State (administering State) to take responsibility for
applying the terms of the decision (transfer of supervision).
ARTICLE 2
Channels of communications
A request for the transfer of supervision shall be made in writing. The
request, supporting documents and subsequent communication shall be
transmitted through diplomatic channels, directly between the Ministries of
Justice or any other authorities designated by the Parties.
ARTICLE 3
Required documents
1. A request for the transfer of supervision shall contain all
necessary information on the identity, nationality and residence of the
sentenced person. The request shall be accompanied by the original or a copy
of any court decision referred to in article 1 of the present Treaty and a
certificate that this decision is final.
2. The documents submitted in support of a request for transfer of
supervision shall be accompanied by a translation into the language of the
requested State or into another language acceptable to that State.
ARTICLE 4
Certification and authentication
Subject to national law and unless the Parties decide otherwise, a
request for transfer of supervision and the documents in support thereof, as
well as the documents and other material supplied in response to such a
request, shall not require certification or authentication.
ARTICLE 5
Decision on the request
The competent authorities of the administering State shall examine what
action to take on the request for supervision in order to comply, as fully as
possible, with the request under their own law, and shall promptly communicate
their decision to the sentencing State.
ARTICLE 6
Dual criminality
A request for transfer of supervision can be complied with only if the
act on which the request is based would constitute an offence if committed in
the territory of the administering State.
ARTICLE 7
Grounds for refusal
If the administering State refuses acceptance of a request for transfer
of supervision, it shall communicate the reasons for refusal to the sentencing
State. Acceptance may be refused where:
(a) The sentenced person is not an ordinary resident in the
administering State;
(b) The act is an offence under military law, which is not also an
offence under ordinary criminal law;
(c) The offence is in connection with taxes, duties, customs or
exchange;
(d) The offence is regarded by the administering State as being of a
political nature;
(e) The administering State, under its own law, can no longer carry out
the supervision or enforce the sanction in the event of revocation because of
lapse of time.
ARTICLE 8
The position of the sentenced person
Whether sentenced or standing trial, a person may express to the
sentencing State his or her interest in a transfer of supervision and his or
her willingness to fulfil any conditions to be imposed. Similarly, such
interest may be expressed by his or her legal representative or close
relatives. Where appropriate, the Contracting States shall inform the
offender or his or her close relatives of the possibilities under the present
Treaty.
ARTICLE 9
The rights of the victim
The sentencing State and the administering State shall ensure in the
transfer of supervision that the rights of the victims of the offence, in
particular his or her rights to restitution or compensation, shall not be
affected as a result of the transfer. In the event of the death of the
victim, this provision shall apply to his or her dependants accordingly.
ARTICLE 10
The effects of the transfer of supervision
on the sentencing State
The acceptance by the administering State of the responsibility for
applying the terms of the decision rendered in the sentencing State shall
extinguish the competence of the latter State to enforce the sentence.
ARTICLE 11
The effects of the transfer of supervision
on the administering State
1. The supervision transferred upon agreement and the subsequent
procedure shall be carried out in accordance with the law of the administering
State. That State alone shall have the right of revocation. That State may,
to the extent necessary, adapt to its own law the conditions or measures
prescribed, provided that such conditions or measures are, in terms of their
nature or duration, not more severe than those pronounced in the sentencing
State.
2. If the administering State revokes the conditional sentence or
conditional release, it shall enforce the sentence in accordance with its own
law without, however, going beyond the limits imposed by the sentencing State.
ARTICLE 12
Review, pardon and amnesty
1. The sentencing State alone shall have the right to decide on any
application to reopen the case.
2. Each Party may grant pardon, amnesty or commutation of the sentence
in accordance with the provisions of its Constitution or other laws.
ARTICLE 13
Information
1. The Contracting Parties shall keep each other informed, in so far as
it is necessary, of all circumstances likely to affect measures of supervision
or enforcement in the administering State. To this end they shall transmit to
each other copies of any relevant decisions in this respect.
2. After expiration of the period of supervision, the administering
State shall provide to the sentencing State, at its request, a final report
concerning the supervised person's conduct and compliance with the measures
imposed.
ARTICLE 14
Costs
Supervision and enforcement costs incurred in the administering State
shall not be refunded, unless otherwise agreed by both the sentencing State
and the administering State.
ARTICLE 15
Final provisions
1. The present Treaty is subject to ratification, acceptance or
approval . The instruments of ratification, acceptance or approval shall be
exchanged as soon as possible.
2. The present Treaty shall enter into force on the thirtieth day after
the day on which the instruments of ratification, acceptance or approval are
exchanged.
3. The present Treaty shall apply to requests made after its entry into
force, even if the relevant acts or omissions occurred prior to that date.
4. Either Contracting Party may denounce the present Treaty by giving
notice in writing to the other Party. Such denunciation shall take effect six
months following the date on which it is received by the other Party.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by
their respective Governments, have signed the present Treaty.
DONE at on in the
and languages, both/all texts being equally authentic.