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Posts Tagged ‘Transfer’

Preconditions and procedures on the Transfer of Sentenced Persons

Article by Taschevapartner

1. The preconditions and the procedure on the transfer of sentenced persons is arranged in the Criminal Procedure Code# of the Republic of Bulgaria, since there are no other ratified, promulgated and effective international treaties on the matter.
2. The Republic of Bulgaria and the Kingdom of Netherlands, as Member States of the Council of Europe and desirous for further developing international co-operation in the field of criminal law, have signed and ratified the Convention on the Transfer of Sentenced Persons#.
3. The specified Convention assists the realization of the aim of justice and the social incorporation to give an opportunity to foreigners who are deprived of their liberty as a result of their commission of a criminal offence to serve their sentences within their own countries. The transfer of the sentenced persons is carried out in accordance with the provisions of this Convention, while the countries are obliged to apply the decrees in close cooperation.
4. The States who have signed the Convention are obligated to provide the sentenced persons with information of the possibilities of the application of this Convention.
5. The transfer is carried out only with the express and voluntary agreement of the sentenced person, stated either before the sentencing State or before the administering State. If the sentenced person has expressed an interest to the sentencing State in being transferred under this Convention, that State shall inform the administering State as soon as possible of this sentenced person and his/her sentence.
6. The preconditions for the transfer given in art.3 of the Convention are the following:
1. The sentenced person is a citizen of the administering State.
2. The judgment is final (cannot be appealed).
3. At the time of receipt of the request for transfer, the sentenced person still has at least six months of the sentence left to serve or the term of the sentence is indefinite.
4. When the sentenced person or his/her representative (when one of the two states considers it necessary to have a representative due to age, physical or mental condition) has given his/her consent about the transfer.
5. Actions or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory.
6. The sentencing State and the administering state have consented to the transfer.

7. The request for transfer shall be made in writing and shall be addressed by the Ministry of Justice of the requesting State (in our case – the Kingdom of the Netherlands) to the Ministry of Justice of the requested State (in our case – the Republic of Bulgaria). The requested State shall promptly inform the requesting State on its decision.

8. Upon a deposited request for the transfer, the sentencing State furnishes the administering State with a certified copy of the judgment and the law on which it is based, a statement indicating how much of the sentence has already been served including information on any pre-trial detention, a declaration containing the consent for the transfer, as well as any medical or social report of the sentenced person, if any.

9. The sentenced person shall be informed, in writing, of any action taken by the sentencing state or by the administering state under the preceding paragraphs, as well as of any decisions taken by either State concerning the request for transfer.

10. The execution of the transfer of the sentenced person shall happen in the following order: the suspension of the enforcement of the sentence in the sentencing State and the occurrence of the obligation of the administering State to continue the enforcement of the punishment or the conversion of the sentence in accordance with its applicable law.

11. The administering State may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or legislation.

Tascheva and Partner is a leading multi-disciplinary law partnership and a tax consultancy practice providing expertise in all areas of civil and commercial law to a client base of leading domestic and international companies and private individuals. Additionally the firm offers dispute resolution services and, if required, litigation before the Bulgarian courts.

Nelli Tascheva is a Managing Partner of Tascheva and Partner. Her role is wide-ranging and in addition to her client work, she has particular responsibility for the partnership’s reputation and values.

Nelli’s clients include national and international companies and both domestic and foreign government agencies and entities. With over 30 years’ legal experience as in-house legal counsel, arbitrator and attorney, Nelli is widely recognized as a valued and trusted advisor. Nelli has advised on an extensive range of transactions in various industries and business sectors, including real estate, large-scale greenfield investments, disposals and acquisitions of businesses and the establishment of joint-ventures. Nelli is member of a number of professional international and domestic organizations.

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