belgiquelex.be - Carrefour Bank of Legislation 12 FEBRUARY 2009. - Act enacting the Agreement between the Government of the Kingdom of Belgium and the Government of the Hong Kong Special Administrative Region of the People's Republic of China on the Transfer of Convicted Persons, signed in Brussels on 8 November 2006 (1) (2)
ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1
er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Agreement between the Government of the Kingdom of Belgium and the Government of the Hong Kong Special Administrative Region of the People's Republic of China on the Transfer of Convicted Persons, signed in Brussels on 8 November 2006, will come out its full and full effect.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 12 February 2009.
ALBERT
By the King:
Minister of Foreign Affairs,
K. DE GUCHT
Minister of Justice,
S. DE CLERCK
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Notes
(1) Session 2007-2008.
Senate.
Documents. - Bill tabled on 3 October 2008, No. 4-941/1.
Session 2008-2009.
Senate.
Report, No. 4-941/2.
Annales parliamentarians. - Discussion and voting: meeting of 4 December 2008.
House of Representatives.
Documents. - Project transmitted by the Senate, No. 52-1650/1. - Text adopted in plenary and subject to Royal Assent, No. 52-1650/2.
Annales parliamentarians. - Discussion and voting: meeting of 29 January 2009.
(2) This Agreement comes into force on 15 April 2009, in accordance with Article 13.
Agreement between the Government of the Kingdom of Belgium and the Government of the Hong Kong Special Administrative Region of the People ' s Republic of China on the transfer of convicted persons
The Government of the Kingdom of Belgium
and
Government of the Hong Kong Special Administrative Region of the People ' s Republic of China
("Hong Kong Special Administrative Region")
duly authorized by the Central People ' s Government of the People ' s Republic of China to conclude this Agreement
(hereinafter referred to as the "Contracting Parties")
Desiring to cooperate in the transfer of convicted persons to facilitate their social reintegration,
The following agreed:
ARTICLE 1
erDEFINITIONS
For the purposes of this Agreement:
(a) "Transfer Party" means the Party from the jurisdiction of which the convicted person may, or has been, transferred;
(b) "Reception Party" means the Party to the jurisdiction of which the convicted person may, or has been, transferred;
(c) "convicted person" means a person who is required to be detained in a prison, hospital or any other institution of the jurisdiction of the Party to transfer to serve his sentence;
(d) "conviction" means any penalty or custodial measure imposed by a court or tribunal in the course of the exercise of its criminal jurisdiction, including a sentence in addition or in substitution for another sentence.
ARTICLE 2
GENERAL PRINCIPLES
A convicted person may be transferred from the territory of the Party of transfer to the territory of the host Party in accordance with the provisions of this Agreement to purge the conviction imposed on him.
ARTICLE 3
CENTRAL AUTHORITY
(1) The Central Authorities of the Contracting Parties shall process the request for transfer in accordance with the provisions of this Agreement.
(2) The Central Authority for the Hong Kong Special Administrative Region is the Secretary of Justice or an officer authorized by the Secretary of Justice. The Central Authority for the Kingdom of Belgium is the Federal Public Service Justice. Either Party may change its Central Authority in which case it shall notify the other Party of that change.
(3) Without prejudice to Article 12, the Central Authorities shall communicate with each other either directly or through the Consulate General of Belgium in the Hong Kong Special Administrative Region to resolve all matters of general scope that concern the purposes pursued in this Agreement.
(4) The Central Authority or the authorities responsible for the execution of a transfer request in a Party may communicate directly with the Central Authority or the authorities responsible for the execution of a transfer request in the other Party with respect to the implementation of specific transfer requests.
ARTICLE 4
TRANSFER CONDITIONS
(1) A convicted person may be transferred only under the following conditions:
(a) The conduct that gave rise to the conviction that was pronounced would constitute a criminal offence under the law of the receiving Party if it had occurred within its jurisdiction;
(b) When the Hong Kong Special Administrative Region is the Home Party, the sentenced person is a permanent resident of the Hong Kong Special Administrative Region or has close ties with the Hong Kong Special Administrative Region;
(c) When Belgium is the Host Party, the sentenced person is one of its nationals, or has its usual and regular residence in Belgium;
(d) The sentencing of the sentenced person represents imprisonment, detention or any other form of deprivation of liberty in any institution:
(i) life;
(ii) for an indefinite period; or
(iii) for a specified duration of which at least one year remains to be served at the time of the transfer request;
(e) the judgment is final and there are no more trials related to the offence or any other offence pending in the Transfer Party;
(f) The Transfer Party and the Host Party and the Convicted Person agree on the transfer. Given the age or physical or mental state, if any of the Parties considers it necessary, the consent of the convicted person may be given by a person authorized to represent the convicted person.
(2) In exceptional cases, the Transfer Party and the Host Party may agree to a transfer even if the length of the remaining sentence to be served by the sentenced person is less than that provided for in subsection (1) (d) (iii) of this section.
(3) Each Party may refuse the transfer of a convicted person when it considers that the transfer may affect its essential interests.
ARTICLE 5
RISK CONDAMNATION
(1) A person transferred in accordance with the provisions of this Agreement shall not be tried or sentenced once again for an offence in the Party of Reception on the basis of the conduct for which the conviction was pronounced in the Party of Transfer.
(2) However, a transferred person may be detained, tried or convicted in the Home Party for an offence resulting from the conduct that was not the basis of the conviction imposed in the Transfer Party.
ARTICLE 6
TRANSFER PROCEDURE
(1) The Contracting Parties shall endeavour to inform the sentenced person of his or her right to be transferred in accordance with this Agreement.
(2) A transfer request may be made by the transfer Party or by the host Party to the other Contracting Party. If the sentenced person wishes to be transferred, he or she may express such a wish to the Transfer Party or the Host Party, which shall consider such a wish expressed in accordance with the criteria set out in Article 4 before deciding whether or not to request a transfer.
(3) When a transfer request has been made, the Transfer Party will provide the following information to the Host Party:
(a) a statement of the facts leading to conviction and a statement of the law creating the offence;
(b) the date of the termination of the sentence and, where applicable, the length of the sentence already served by the sentenced person and any remission of the sentence to which the sentenced person is entitled due to the work done, good conduct, preventive detention or for any other reason; and
(c) a copy of the conviction and sentence certificate.
(4) Each Contracting Party shall, as far as practicable, provide to the other Contracting Party, as long as it so requests, any relevant information, documents or statements before making a transfer request or before making a decision to accept or not transfer it.
(5) The Party of transfer shall give the opportunity to the Party of host, as long as the Party of host wishes, to verify, before the transfer, through an official person designated by the Party of host whom the convicted person has given his consent for the transfer in accordance with Article 4 (f) of this Agreement voluntarily and in full knowledge of the consequences of that transfer.
(6) The surrender of the person convicted by the Authorities of the Party of transfer to those of the host Party will occur at a date and in a place within the jurisdiction of the Party of transfer on which the two Contracting Parties have agreed.
ARTICLE 7
LEGALITY
The Transfer Party shall remain competent for the review of judgements and convictions handed down by its courts and tribunals.
ARTICLE 8
GRACE, AMNISTIA OR PEINE COMMUTATION
Each Contracting Party may grant the grace, amnesty or commutation of the sentence in accordance with its Constitution or other legal rules.
ARTICLE 9
FORSUITE DE L'EXECUTION DE LA CONDAMNATION
(1) Subject to subsection (5), the Reception Party shall execute the conviction as if the conviction had the same duration or expiration date as that recommended by the Transfer Party and as if the conviction had been pronounced in the Reception Party.
(2) The continuation of the enforcement of the sentence after the transfer will be governed by the legislation and procedures of the host Party, including those governing the conditions regulating the service of imprisonment, detention or other deprivation of liberty, as well as those providing for a reduction in the duration of imprisonment, detention or other deprivation of liberty through a conditional release, conditional release, other release
(3) In the event that the conviction is by its nature or by its duration incompatible with the legislation of the host Party, the same Party may adapt the conviction in accordance with the conviction that it would have rendered according to its own legislation for a similar offence. The appropriate sentence will not be more severe than that imposed by the Party of transfer in terms of nature or duration.
(4) The host Party may treat a person transferred according to the status of that person under its own legislation despite the status of that person under the legislation of the Transfer Party.
(5) The host Party shall amend or terminate the execution of the conviction as soon as it has been informed by the Party of transfer of any decision or measure by the Party of transfer pursuant to Articles 7 and 8 of this Agreement which would result in a cancellation or reduction of the conviction.
(6) The Host Party will inform the Transfer Party:
(a) when the sentenced person is released after serving his sentence;
(b) if the convicted person has been granted conditional or provisional liberty;
(c) if the convicted person escaped from detention before completing his sentence.
(7) In the event that the Party transfers the request, the host Party will provide any requested information that is in relation to the enforcement of the conviction.
ARTICLE 10
TRANSIT DE PERSONNES CONDAMNE
(1) If one of the Parties transfers a sentenced person to or from another jurisdiction, the other Party shall cooperate, in accordance with its legislation, to facilitate the transit of that person's territory. The Party intending to make such a transit shall notify the other Party in advance.
(2) A Party may refuse to grant transit if:
(a) in the case of the Hong Kong Special Administrative Region, the sentenced person is a permanent resident of the Hong Kong Special Administrative Region or, in the case of Belgium, the sentenced person is one of its nationals;
(b) the offence that gave rise to the conviction does not constitute an offence under its legislation; or
(c) the transferred person is the subject of research in that Party.
ARTICLE 11
LANGUAGE AND FRAIS
(1) The transfer request and documents relating to the Hong Kong Special Administrative Region will be submitted or accompanied by a translation into English or Chinese. The transfer request and documents relating to the Kingdom of Belgium will be submitted or accompanied by a translation into French or Dutch.
(2) The host Party shall pay the related expenses:
(a) the transfer of the sentenced person, with the exception of costs incurred exclusively in the territory of the Transfer Party; and
(b) the prosecution of the sentence after the transfer.
(3) However, the Host Party may request payment of all or part of the transfer fees by the sentenced person.
ARTICLE 12
DIFFERENDUM REGULATIONS
Any dispute arising out of the interpretation, implementation or application of this Agreement shall be resolved by diplomatic means if the Central Authorities fail to reach agreement.
ARTICLE 13
FINAL PROVISIONS
(1) Each Party shall notify the other Party in writing of the fulfilment of the respective procedures necessary for the entry into force of this Agreement. This Agreement shall enter into force thirty days after the date of the last of these two notifications.
(2) This Agreement shall apply to the execution of convictions pronounced before and after its entry into force.
(3) Either Party may denounce this Agreement at any time by a written notification to the other Party. In this event, this Agreement shall cease to have effect on the notieth day after the date of notification.
In faith, the undersigned, duly authorized by their respective Governments, have signed this Agreement.
Done in double copy in Brussels, this eighth day of November of the year two thousand six, in Chinese, English, French and Dutch, each of the four texts being equally authentic.
