Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister for Foreign and European Affairs,
Considering articles 52 to 55 of the Constitution;
Vu la Act No. 2009-1795 of 31 December 2009 authorizing the approval of the agreement between the Government of the French Republic and the Government of the Republic of India on the transfer of convicted persons;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France,
Decrete:
The agreement between the Government of the French Republic and the Government of the Republic of India on the transfer of convicted persons, signed in New Delhi on 25 January 2008, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign and European Affairs are responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.
C O N V E N T I O N
BETWEEN THE GOVERNMENT OF THE FRANÇAISE REPUBLIC AND THE GOVERNMENT OF THE INDIA REPUBLIC ON THE TRANSFERENCE OF PERSONS CONDAMNED TODAY, 25 JANUARY 2008
The Government of the French Republic and the Government of the Republic of India, hereinafter referred to as the Contracting States,
Desiring to facilitate the social reintegration of convicted persons in their own country;
And considering that this objective must be achieved by offering foreigners convicted of a criminal offence the possibility of serving their sentences in their own social environment,
The following agreed:
Article 1
Definitions
For the purposes of this Convention:
(a) " Judgement " means a court decision making a conviction;
(b) "Condemnation" means any penalty or custodial measure imposed by a court or tribunal in the exercise of its criminal jurisdiction for a specified or indeterminate period. For the purposes of this Convention, the term "conviction" also includes final court decisions condemning the death penalty commuted after, in the transfer State, by a decision of amnesty or pardon, in a custodial sentence for a fixed or indeterminate period of time;
(c) "Convicted person" means a person against whom a sentence of imprisonment has been imposed by a court or a criminal court;
(d) "State of reception" means the State to which the sentenced person may or has already been transferred to carry out his or her sentence;
(e) "State of transfer" means the State in which the conviction has been pronounced against the person who may or has already been transferred.
Article 2
General principles
1. A person convicted in the territory of a Contracting State may be transferred to the territory of the other Contracting State in accordance with the provisions of this Convention to carry out the penalty imposed against him. For this purpose, the sentenced person may express, either to the transfer State or to the receiving State his or her will to be transferred under this Convention.
2. The transfer may be requested either by the transfer State or by the host State. The official request for transfer is addressed to the requesting State. When the sentenced person expresses his or her will to be transferred to the transfer State and if he or she has prescribed a particular procedure, the request for transfer is made in accordance with this procedure. Such a request may also be made by any other person authorized to act on his or her behalf in accordance with the law of the transfer State.
Article 3
Conditions of transfer
1. A convicted person may only be transferred under this Convention under the following conditions:
(a) the person is a national of the receiving State;
(b) the judgment is final and no proceedings, proceedings or other criminal proceedings are pending against the person convicted in the transfer State;
(c) at the date of receipt of the transfer request, the duration of the remaining sentence shall be at least six months;
(d) the penalty to be imposed is a deprivation of liberty and not the death penalty;
(e) the acts or omissions that gave rise to the conviction constitute a criminal offence under the law of the receiving State or would constitute a criminal offence if they occurred in its territory;
(f) the transfer to the receiving State of the responsibility of the custody of the sentenced person shall not affect the sovereignty, security or any other interest of the transfer State;
(g) the sentenced person or, if any of the Contracting States considers it necessary because of the age or physical or mental state of the convicted person, any other person mandated to act on his or her behalf in accordance with the law of the transfer State consents to the transfer;
and
(h) the transfer State and the receiving State consent to the transfer.
2. In exceptional cases, the transfer State and the host State may agree to a transfer even if the duration of the remaining sentence is less than six months.
Article 4
Obligation to provide information
1. Any person sentenced to whom this Convention may apply must be informed by the State of transfer of the content of this Convention.
2. In order to allow a decision on an application made under this Convention, the transfer State shall send the following information and documents to the host State:
(a) the name and nationality, date and place of birth of the convicted person;
(b) its address, if any, in the host State;
(c) a statement of the facts leading to conviction;
(d) the nature, duration and date of the commencement of execution of the sentence;
(e) a certified copy of the judgment and a copy of the relevant provisions of the legislation under which the conviction was pronounced against the convicted person;
(f) whenever appropriate, any medical or social report on the sentenced person, or any information concerning his treatment in the transfer State or any recommendation for the continuation of such treatment in the receiving State;
(g) any other information that the host State may specify as necessary in a specific case to allow it to study the possibility of the transfer and to inform the sentenced person of all the consequences of that transfer in the light of its legislation;
(h) the request for the transfer of the sentenced person, or a statement on his or her part, or, if either of the Contracting States considers it necessary because of the age or physical or mental state of the convicted person, of any other person mandated to act on his or her behalf in accordance with the law of the transfer State, attesting that he or she consents thereto;
and
(i) a statement indicating the duration of the sentence that has already been executed, including any information relating to pre-trial detention, a reduction of sentence or any other element relating to the execution of the sentence.
3. In order to allow a decision on an application made under this Convention, the host State shall send the following information and documents to the transfer State, unless one or the other of the two States has already decided not to accept the transfer:
(a) a statement or document certifying that the sentenced person is a national of the receiving State;
(b) a copy of the legal provisions of the receiving State from which it results that the acts or omissions that have given rise to the conviction in the transfer State constitute a criminal offence under the law of the receiving State or would constitute one if they were committed in its territory;
(c) a statement concerning the effects on the sentenced person of any law or regulation relating to the duration and execution of his or her conviction in the receiving State, after his or her transfer, including, where appropriate, a statement concerning the effects of article 8, paragraph 2, of this Convention on the Transfer of that person;
(d) a statement by the receiving State expressing its willingness to accept the transfer of the sentenced person and to execute the rest of the sentence imposed against him in accordance with the provisions of this Convention;
and
(e) any other information or documents that the transfer State deems necessary.
Article 5
Requests and answers
1. Requests for transfer must be made in writing and sent by the central authority of the requesting State, through diplomatic channels, to the central authority of the requested State. The answers should be transmitted by the same way.
2. For the purposes of paragraph 1 of this article, the central authority is, with respect to France, the Ministry of Justice and with regard to India, the Ministry of the Interior.
3. The requested State must inform the requesting State, as soon as possible, of its decision to accept or not accept the requested transfer.
Article 6
Compliance and verification
1. The transfer State must ensure that the person who must give consent to the transfer, in accordance with paragraph 1 (g) of Article 3 of this Convention, voluntarily and fully aware of the legal consequences arising therefrom. The procedure to be followed in this regard is governed by the law of the transfer State.
2. The transfer State must give the host State the opportunity to verify that consent has been given under the conditions provided for in paragraph 1 of this article.
Article 7
Consequences of the transfer for the host state
1. The competent authorities of the receiving State shall continue the execution of the conviction, by a judicial or administrative decision, in accordance with their national legislation, under the conditions provided for in Article 8 of this Convention.
2. The execution of the conviction is governed by the law of the host State which is solely competent to adopt all appropriate decisions, subject to the provisions of Articles 10 and 11 of this Convention.
Article 8
Prosecution of execution of sentence
1. The host State is bound by the legal nature and duration of the conviction as determined in the transfer State.
2. However, if the nature or duration of this sentence are incompatible with the legislation of the receiving State or if the law of that State requires it, the receiving State may, by judicial or administrative decision, adapt this sentence to the penalty or measure provided for by its own laws. This penalty or measure corresponds, as far as possible, to its nature and duration, to that imposed by the judgment of the transfer State. It cannot, however, aggravate, by its nature or duration, the condemnation pronounced by the transfer State.
Article 9
Consequences of execution of sentence
for the transfer State
The notification by the host State to the transferring State, in accordance with paragraph 1 (a) of Article 13 of this Convention, of the execution of the conviction has the effect of causing the conviction to lose its enforceability in the transferring State.
Article 10
Review of the judgement
Only the transfer State has the right to rule on a request to review the judgment.
Article 11
Thanks, amnesty, commutation of sentence
Any of the Contracting States may grant grace, amnesty or commutation of sentence in accordance with its Constitution or other legal rules.
Article 12
Termination of execution of sentence
The receiving State must terminate the execution of the sentence as soon as it has been informed by the State of transfer of any decision or measure that has the effect of removing its enforceability from the conviction.
Article 13
Information concerning the execution of the sentence
1. The host State must inform the transfer State:
(a) when the execution of the conviction ended;
or
(b) when the convicted person escapes before the completion of the sentence. In this case, the host State must take all measures to stop this person so that it carries out the rest of its sentence, regardless of the criminalization of the escape in the legislation of the host State.
2. The host State shall provide a special report concerning the execution of the conviction if the transfer State so requests.
Article 14
Transit
1. If either of the Contracting States enters into an agreement with a third State for the transfer of convicted persons, the other Contracting State shall facilitate the transit in its territory of convicted persons transferred under such agreement.
2. The State intending to carry out this transfer must first notify the other State. This notification shall include the necessary information, including information for the application of the following paragraph.
3. The State in whose territory the transit is to be carried out may refuse to grant the transit if the sentenced person is one of its nationals or if the offence that gave rise to the conviction does not constitute a transit under its legislation.
4. The State to which transit is requested may keep the person sentenced in detention for the strictly necessary period of transit in its territory.
5. No transit request is required if the airway is used above the territory of a State and no landing is planned. However, the transiting State informs the State whose territory must be overflowed.
Article 15
Fees
The costs incurred by the application of this Convention shall be borne by the host State, with the exception of the costs incurred exclusively in the territory of the transfer State. However, the host State may request payment of all or part of the transfer fees to the sentenced person or to third parties.
Article 16
Language
Requests and all related documents are accompanied by a translation into the language or one of the official languages of the requested State.
Article 17
Time application
This Convention shall apply to the execution of convictions pronounced before and after its entry into force.
Article 18
Final provisions
1. This Convention is subject to ratification. Each Contracting State shall notify the other as soon as possible, in writing, by diplomatic means, of the fulfilment of the procedures required by its Constitution for its entry into force. This Convention shall enter into force on the first day of the second month following the date of the last notification.
2. The Convention shall remain in force for six months from the date on which one of the Contracting States shall notify the other Contracting State in writing of its intention to terminate it.
3. Notwithstanding any denunciation, this Convention will continue to apply to the enforcement of the convictions of convicted persons transferred under this Convention prior to the effective date of this denunciation.
The undersigned, duly authorized to do so by their respective Governments, have signed this Convention.
Made in triple copies in New Delhi on 25 January 2008, in French, English and Hindi languages, the three texts being equally authentic.
For the Government
of the French Republic:
Rachida Dati
Keeping the seals,
Minister of Justice
For the Government
of the Republic of India:
Shivray Patil
Minister of Interior
Done in Paris, March 16, 2010.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
Minister for Foreign Affairs
and European,
Bernard Kouchner
