TRANSFER OF OFFENDERS

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whereas it is expedient to provide for transfer of a citizen of Pakistan convicted of an offence in a foreign country to Pakistan and a citizen of a foreign country convicted of an offence in Pakistan to that country and for matters connected therewith or ancillary thereto.

And the president is satisfied that circumstances exist which render it necessary to take immediate action. Now therefore in pursuance of the proclamation of emergency of the fourteenth day of October 1999 and the provincial constitution. Order no 9 and in exercise of all powers enabling him in that behalf, the president of the Islamic Republic of Pakistan is pleased to make and promulgated the following ordinance.

Where an agreement for mutual transfer of offenders has been entered into between Pakistan and any specified country whether before or after the commencement of this ordinance the competent authority shall by notification in the official gazette declare that the provisions of this ordinance shall apply in respect of such country.

COMPETENT AUTHORITY TO MAKE AN APPLICATION REQUESTING THE TRANSFER OF AN OFFENDER.

  • The competent authority may make an application to an appropriate authority in a specified country requesting the transfer to that country of any offender who is or is suspected to be a citizen of that country.

  • Notwithstanding anything contained in sub-section1 any offender who claims to be a citizen of a specified country may through the concerned inspector general of prisons, make an application to the competent authority to be transferred to the specified country of which he claims to be a citizen and the competent authority may where considers it appropriate make a request on behalf of such offender under sub-section 1 to the appropriate authority of such specified country.

  • Every application for a request under this section shall be made in such form and be accompanied by such documents as may be prescribed.

  • Where the competent authority makes an application at the request of an offender, it shall inform such offender in writing of the action or decision taken both by the competent authority and the appropriate authority of the specified country in relation to his request for a transfer.

APPLICATION TO BE MADE BY AN APPROPRIATE AUTHORITY.

An application made to the competent authority by an appropriate authority of a specified country for the transfer to Pakistan of an offender who claims to be a citizen of Pakistan shall be entertained if–

  • such application is made in the form prescribed for the purpose.

  • A copy of the order, decision or judgment by which such offender was sentenced to the term of imprisonment, certified as correct by the appropriate authority of such specified country is attached to the application.

  • Where the competent authority by order allows an application made under sub-section 1 the copy of the order, decision or judgment as the case may be attached to an application shall be proof of the facts stated therein and shall have effect as if it was an order, decision or judgment as the case may be passed by a court of competent jurisdiction in Pakistan.

The warrant to be issued under sub-section 1 shall be in the prescribed form under the hand of the competent authority. The competent authority shall on the date of issuing of a warrant under subsection 1 cause a copy thereof to be served on the concerned inspector general of prisons.

The effect of a warrant issued by the competent authority under section 7 shall be to authorize–

  • the taking of the offender to any place within Pakistan and his delivery at a place of departure from Pakistan into the custody of person duly authorized by the appropriate authority in the specified country to which he is being transferred to take such custody of the offender and

  • the removal of the offender by the person into whose custody he was delivered to any place outside Pakistan.

Any offender committed to custody under section 9 or 10 who escapes from such custody may be sent to any place in Pakistan in like manner as a person escaping from custody under a warrant for his arrest issued in that place in respect of an offence committed therein. Where any offender who is in custody is required to be removed from the place where he is held in custody to any other place in Pakistan he shall be deemed to continue to be in legal custody until he reaches the place to which he is required to be transferred.

An offender who is transferred to Pakistan in terms of section 9 shall be subject to any remission of the sentence of imprisonment, imposed on him in the specified country where he was convicted to which he may have become entitled to on the date of his transfer in accordance with the laws relating to remission of a sentence in force in such specified country. Nothing in this ordinance shall be so construed as to limit or take away the power of the president to grant pardon or remission of sentence to any offender under article 45 of the constitution of the Republic of Pakistan or by any other authority under any law of Pakistan for the time being in force.

The sentence of imprisonment imposed on any offender who is a citizen is Pakistan in any specified country shall not be subject to any appeal or revision in any court of Pakistan notwithstanding the fact that the order, decision or judgment imposing such sentence is deemed to be an order, decision or judgment imposed by a court of competent jurisdiction in Pakistan. The competent authority may by notification in the official gazette make rules for carrying out the purpose of this ordinance.

Transfer regimes are based on bilateral or multilateral agreements that offer a framework for transferring prisoners.

In 1985, the Seventh UN Congress on the Prevention of Crime and the Treatment of offenders adopted the UN Model Agreement on the Transfer of Foreign Prisoners and Recommendations on the treatment of foreign prisoners (see page 30). This agreement provides a model not only for bilateral agreements but also for multilateral agreements that all UN Member States can adapt to their specific legal systems.

Several international instruments are also relevant to the international transfer of sentenced persons, including those referring to rehabilitation and human rights of prisoners. Among them is the United Nations Transnational Organized Crime Convention, which states, in Article 17, that:

“States Parties may consider entering into bilateral or multilateral agreements or arrangements on the transfer to their territory of persons sentenced to imprisonment or other forms of deprivation of liberty for offences covered by this Convention, in order that they may complete their sentences there.”

UNODC response

UNODC is active in supporting States to cooperate in the transfer of sentenced persons to ensure that they are treated fairly and so as to ensure the healthy functioning of criminal justice systems.

To support the implementation and use of transfer mechanisms, States are required to ensure that their national legislation facilitates such cooperation. UNODC can offer technical assistance to States wishing to implement new or strengthen existing transfer regimes at the level of domestic legislation, as well as at the level that regional and international agreements are reached and relied upon.

In 2012 UNODC is publishing a Handbook on the International Transfer of Sentenced Persons to explain how transferring sentenced persons to serve their sentences in their home countries can contribute both to their fair treatment and effective rehabilitation.

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