MHA issues Notification on Agreement on Transfer of Sentenced Persons between India, Spain

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The Ministry of Home Affairs (Women Safety Division) on November 27, 2018 issued a Notification detailing the “Agreement between the republic of India and the kingdom of Spain on the transfer of sentenced persons”. The Agreement was signed on May 30, 2017 and was ratified by the Government of India on July 3, 2017 and by the Government of Spain on May 30, 2018.

The Notification stated:

In exercise of the powers conferred by sub-sections (1) and (2) of Section 3 of the Repatriation of Prisoners Act, 2003 (49 of 2003), the Central Government hereby directs that the provisions of the said Act shall apply to the Government of the Kingdom of Spain.

Highlights of the Agreement:

The Government of the Republic of India and the Government of the Kingdom of Spain, hereinafter referred to as the Contracting States, desiring to facilitate the social rehabilitation of sentenced persons into their own countries, and considering that this objective should be fulfilled by giving foreign nationals, who have been convicted and sentenced as a result of their commission of a criminal offence, the opportunity to serve their sentences in their own society, have agreed as follows:

•General Principles

1. A person sentenced in the territory of one Contracting State may be transferred to the territory of the other Contracting State in accordance with the provisions of this Agreement in order to serve the sentence imposed on him. To that end, he may express to the transferring State or the receiving State his willingness to be transferred under this Agreement.

2. Transfer may be requested by any sentenced person who is a national of a Contracting State or by any other person who is entitled to act on his behalf in accordance with the law of the Contracting State by making an application to the Contracting State and in the manner prescribed by the Government of that Contracting State.

•Central Authorities

1. Authorities in charge of the implementation of this Agreement for the Contracting States are:

- For the Republic of India: Ministry of Home Affairs.

- For the Kingdom of Spain: Ministry of Justice

2. In case either Contracting State changes its competent authorities, it shall notify the other State of the same through diplomatic channels.

•Conditions for transfer

1. A sentenced person may be transferred under this Agreement on the following conditions:

(a) the person is a national of the receiving State;

(b) the death penalty has not been imposed on the sentenced person; except the case where the sentence has been commuted;

(c) the judgment is final;

(d) no criminal proceedings are pending against the sentenced person in the transferring State in which his presence is required;

(e) the sentenced person has not been convicted for an offence under the military law except in circumstances where the Contracting States agree otherwise;

(f) at the time of receipt of the request for transfer, the sentenced person still has at least one year of the sentence to serve;

(g) that the acts or omissions for which that person was sentenced in the transferring State are those which are punishable as a crime in the receiving State, or would constitute a criminal offence if committed on its territory;

(h) transfer of custody of the sentenced person to the receiving State shall not be detriment to the sovereignty, security or any other essential interest of the transferring State;

(i) consent to the transfer is given by the sentenced person or, where in view of his age or physical or mental condition either Contracting State considers it necessary, by any other person entitled to act on his behalf in accordance with the law of the Contracting State; and

(j) the transferring and receiving States agree to the transfer.

2. In exceptional cases, the transferring and receiving States may agree to a transfer even if the remaining period to be served by the sentenced person is less than specified in paragraph 1(f).

•Obligation to furnish information

1. If the sentenced person has expressed an interest to the transferring State in being transferred under this Agreement, the transferring State shall send the following information and documents to the receiving State unless either the receiving or the transferring State has already decided that it will not agree to the transfer:

(a) the name and nationality, date and place of birth of the sentenced person and his address, if any, in the receiving State along with a copy of his passport or any other personal identification documents, and Fingerprints of the Sentenced Person, as possible;

(b) a statement of the facts upon which the sentence was based;

(c) the nature, duration and date of commencement of the sentence, a statement indicating how much of the sentence has already been served, including information on any pre-trial detention, remission, or any other factor relevant to the enforcement;

(d) a certified copy of the judgment and a copy of the relevant provisions of the law under which the sentence has been passed against the sentenced person;

(e) Whenever appropriate, any medical, social or penitentiary report on the sentenced person, information about his treatment in the sentencing State, any recommendation for his further treatment in the administering State,;

(f) any other information which the receiving State may specify as required, to enable it to consider the possibility of transfer and to enable it to inform the sentenced person of the full consequences of transfer for him under its law;

(g) the request of the sentenced person to be transferred or of a person entitled to act on his behalf in accordance with the law of the transferring State; and

(h) A statement from the Transferring State agreeing to the transfer of the Sentenced Person.

2. For the purposes of enabling a decision to be made on a request under this Agreement, the receiving State shall send the following information and documents to the transferring State unless either the receiving or the transferring State has already decided that it will not agree to the transfer:

(a) a statement or document indicating that the sentenced person is a national of the receiving State;

(b) a copy of the relevant law of the receiving State which provides that the acts or omissions on account of which the sentence has been imposed in the transferring State constitute a criminal offence according to the law of the receiving State, or would constitute a criminal offence if committed on its territory;

(c) a statement regarding any law regulation relating to the duration and enforcement of the sentence in the receiving State after the sentenced person’s transfer including, if applicable, a statement of the effect of paragraph 2 of Article 9 of this Agreement on his transfer;

(d) the willingness of the receiving State to accept the transfer of the sentenced person and an undertaking to administer the remaining part of the sentence of the sentenced person; and

(e) any other information or document which the transferring State may consider necessary.

•Final Provisions

1. This Agreement shall enter into force thirty days after the date on which the Contracting States have notified each other in writing that their respective requirements for the entry into force of the Agreement have been compiled with.

2. The Agreement shall remain in force for an indefinite period. It may, however, be terminated by ither of the Contracting State by giving a written notice of termination to the other Contracting State. The termination shall take effect after six months of the date of such notice.

3. Notwithstanding any termination, this Agreement shall continue to apply to the enforcement of sentences of prisoners who have been transferred under this Agreement before the date on which such termination takes effect.

The Notification also explains the following in detail: Requests and replies; Consent and its verification; Effect of transfer for the receiving State; Continued enforcement of sentence; Effect of completion of sentence for the transferring State; Review of judgment and Pardon, amnesty or commutation; Termination of enforcement of sentence; Information on enforcement of sentence; Transit; Costs; Language; Scope of Application; Settlement of Disputes; Handing Over of Sentenced Persons; and Amendments.

To view the entire Official Notification in detail, please view the file attached herein.

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