AGREEMENT WITH HONG KONG ON TRANSFER OF SENTENCED PERSONSSenate Consideration of Treaty Document 105-7
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[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 ---------- 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.