Treaty on the Transfer of Sentenced Persons between the Socialist Republic of Vietnam and Hungary 2013

TREATY

ON THE TRANSFER OF SENTENCED PERSONS BETWEEN THE SOCIALIST REPUBLIC OF VIET NAM AND HUNGARY

The Socialist Republic of Viet Nam and Hungary (hereinafter jointly referred to as the “Parties”);

Taking into consideration the laws and regulations of the two States;

Considering to facilitate the successful reintegration of sentenced persons into society;

Considering that these objectives can be best fulfilled by giving foreign sentenced persons the opportunity to serve their sentences within their own society;

Recalling the Convention on Mutual Legal Assistance in Civil, Family Law and Criminal Matters signed on 18 January 1985 in Hanoi;

Noting that both Viet Nam and Hungary currently apply the terms of that Treaty;

Have agreed as follows:

ARTICLE 1

DEFINITIONS

For the purposes of this Treaty:

1. “national” means a person who only has nationality of Viet Nam or nationality of Hungary;

2. “Transferring Party” means the State from which the sentenced person may be, or has been transferred;

3. “Receiving Party” means the State to which the sentenced person may be, or has been transferred;

4. “sentenced person” means a person who is detained in a prison or any other institution in the Transferring Party by virtue of a judgment made by a court of the Transferring Party on account of a criminal offence; and

5. “sentence” means any punishment or measure involving deprivation of liberty ordered by a court of the Transferring Party for a limited period of time or life imprisonment on account of a criminal offence.

ARTICLE 2

GENERAL PRINCIPLES

1. The Parties shall cooperate in the widest possible manner in respect of the transfer of sentenced persons in accordance with the provisions of this Treaty.

2. A sentenced person may be transferred from the territory of the Transferring Party to the territory of the Receiving Party in accordance with the provisions of this Treaty in order to continue serving the sentence imposed on him or her by the Transferring Party.

3. A sentenced person may express his or her interest to the Transferring Party or to the Receiving Party in being transferred under this Treaty.

4. The transfer of sentenced persons may be requested by either the Transferring Party or the Receiving Party.

ARTICLE 3

CENTRAL AUTHORITIES

1. For the purpose of implementing this Treaty, each Party shall designate a central authority.

a) The central authority of Viet Nam shall be the Ministry of Public Security.

b) The central authority of Hungary shall be the Ministry of Public Administration and Justice.

2. Unless otherwise required by this Treaty, all communication concerning the transfer of sentenced persons under this Treaty shall be transmitted through the central authorities. The Parties shall notify each other about the changes regarding the central authorities through diplomatic channels.

ARTICLE 4

CONDITIONS FOR TRANSFER

Sentenced persons may be transferred under this Treaty only on the following conditions:

1. if the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the Receiving Party or would constitute a criminal offence if committed on its territory;

2. the sentenced person is a national of the Receiving Party, or had the last place of residence in the territory of the Receiving Party;

3. the Transferring and Receiving Parties agree on the transfer;

4. the transfer is consented to by the sentenced person or, where in view of the person's age or physical or mental condition, one of the Parties considers it necessary, by his or her legal representative;

5. at the time the request for transfer is received, the sentenced person has still at least one year of the sentence to serve; in exceptional cases, the Parties may agree to a transfer even if the sentenced person has less than one year of the sentence to serve; and

6. the judgment is final and no other legal proceedings relating to the offence or any other offence committed by the sentenced person are pending in the Transferring Party.

ARTICLE 5

GROUNDS FOR REFUSAL OF TRANSFER

Under this Treaty, the Transferring Party shall refuse to transfer a person who is serving a sentence in any of the following circumstances:

1. There are grounds to believe that the sentenced person would be subjected to torture, retaliation or suppression in the Receiving Party.

2. The transfer would prejudice sovereignty, national security, public order or other essential interests of the Transferring Party.

3. The person has been convicted or acquitted by a court of the Receiving Party for the same offence, or the criminal proceedings have been terminated, or the execution of the sentence has been cancelled.

4. The sentence cannot be executed in the Receiving Party due to statute of limitation for carrying out the sentence or other reasons described in the law of the Receiving Party.

ARTICLE 6

PROCEDURES FOR TRANSFER

1. Any sentenced person to whom this Treaty may apply shall be informed by the Transferring Party of the substance of this Treaty.

2. If a sentenced person expresses his or her interest in being transferred and the Transferring Party agrees to approve the request for transfer, the Transferring Party shall promptly inform the Receiving Party in writing, and provide the following information:

a) the name, the date and the place of birth of the sentenced person;

b) the residence and, if available, the permanent address of the sentenced person in the Receiving Party;

c) a statement of the facts upon which the conviction and sentence were based;

d) the nature, duration and date of commencement of the sentence, the termination date of the sentence, if applicable, and the length of time already served by the sentenced person and any remission to which he or she is entitled on account of work done, good behaviour, pre-trial confinement or other reasons;

e) a copy of the judgment and information about the law on which it is based; and

f) if available, any other additional information, including medical or social reports on the sentenced person, which may be of significance for the sentenced person’s transfer and for the continued enforcement of his or her sentence.

3. If a sentenced person expresses his or her interest in being transferred to the Receiving Party, the Receiving Party shall so inform the Transferring Party. If the Transferring Party is willing, in principle, to approve the request for transfer, the Transferring Party shall promptly inform the Receiving Party in writing, and provide the information referred to in paragraph 2 of this Article.

4. If the Receiving Party, having considered the information which the Transferring Party has provided, is willing to proceed with the transfer, it shall promptly inform the Transferring Party in writing, and provide the following information;

a) a statement indicating that the sentenced person is a national of the Receiving Party for the purposes of this Treaty;

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

c) a statement of the effect, in relation to the sentenced person, of any law or regulation relating to that person’s detention in the Receiving Party after that person’s transfer, including a statement, if applicable, of the effect of paragraph 3 of Article 10 upon that person’s transfer; and

d) a statement of any outstanding charges, convictions or criminal investigations in respect of the sentenced person.

5. If the Transferring Party is willing to proceed with the transfer, it shall promptly provide the Receiving Party with the following:

a) a declaration containing the sentenced person’s consent to the transfer; and

b) the written confirmation of the Transferring Party’s agreement to the transfer.

6. Where the Parties have agreed to the transfer, they shall make arrangements for the transfer of the sentenced person. Surrender of the sentenced person shall occur on a date and at a place agreed upon by both Parties.

7. If either Party decides not to agree to the transfer, it shall promptly inform the other Party of its decision in writing.

8. The Transferring Party shall inform the sentenced person in writing of any action taken by the Transferring Party or the Receiving Party under the preceding paragraphs of this Article.

ARTICLE 7

VERIFICATION OF CONSENT

1. The Transferring Party shall ensure that a sentenced person who gives consent to his or her transfer under this Treaty does so voluntarily and with knowledge of the consequences thereof. The procedure for giving such consent shall be governed by the law of the Transferring Party.

2. The Transferring Party shall permit a representative, designated by the Receiving Party, to contact directly with the sentenced person to verify his or her consent with the transfer in accordance with paragraph 1 of this Article.

ARTICLE 8

EFFECT OF THE TRANSFER IN THE TRANSFERRING PARTY

Taking over the sentenced person by the authorities of the Receiving Party shall have the effect of suspending the enforcement of the sentence by the authorities of the Transferring Party.

ARTICLE 9

REVIEW OF JUDGMENT

The Transferring Party shall retain exclusive jurisdiction for the review of the judgment.

ARTICLE 10

CONTINUED ENFORCEMENT

1. In case of continued enforcement, the Receiving Party shall enforce the sentence as if the sentence had been imposed in the Receiving Party.

2. The continued enforcement of the sentence after transfer shall be governed by the laws and procedures of the Receiving Party, including those governing the conditions of imprisonment, the confinement or other deprivation of liberty, and those providing for the reduction of the term of imprisonment, confinement or other deprivation of liberty by parole, conditional release, remission or otherwise.

3. If the sentence is by its nature or duration incompatible with the law of the Receiving Party, that Party may adapt the sanction in accordance with the punishment or measure prescribed by its own law for a similar offence. When adapting the sentence, the appropriate authorities of the Receiving Party shall be bound by the findings of facts, insofar as they appear from any opinion, conviction, judgment, or sentence imposed in the Transferring Party. The adapted sentence shall be neither more severe than that imposed by the Transferring Party in terms of nature or duration, nor exceed the maximum penalty prescribed by the law of the Receiving Party. When adapting the sentence, the competent authority of the Receiving Party may, however, not convert a life imprisonment to another penalty.

4. The Receiving Party shall modify or terminate the enforcement of the sentence, as soon as it is informed of any decision made by the Transferring Party to pardon the sentenced person, or of any other decision or measure of the Transferring Party that results in cancellation or reduction of the sentence.

5. If the Transferring Party requires, the Receiving Party shall provide the following information to the Transferring Party in relation to the continued enforcement of the sentence:

a) the date when the execution of the sentence has been completed;

b) if the sentenced person has escaped from custody before the sentence has been completed;

c) if the sentenced person is unable to complete the sentence for any reason; or

d) if the Transferring Party so requests, a report on the enforcement of the sentence.

ARTICLE 11

CONVERSION OF THE SENTENCE

1. In the case of conversion of sentence, the procedures provided for by the law of the Receiving Party apply. When converting the sentence, the competent authority:

a) shall be bound by the findings of the facts insofar as they appear explicitly or implicitly from the judgment imposed in the Transferring Party;

b) shall deduct the full period of deprivation of liberty served by the sentenced person; and

c) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the Receiving Party may provide for the offence or offences committed.

2. If the conversion procedure takes place after the transfer of the sentenced person, the Receiving Party shall

a) ensure to conduct the conversion procedure quickly and complete it before full period of deprivation of liberty has been served;

b) keep that person in custody or otherwise ensure his or her presence in the Receiving Party pending the outcomes of the procedure.

ARTICLE 12

TRANSIT

1. A Party shall, in accordance with its national laws, grant a request for transit of a sentenced person through its territory if such a request is made by the other Party and that Party has agreed with a third State on the transfer of that person to or from its territory.

2. A Party may refuse to grant transit:

a) if the sentenced person is one of its nationals, or

b) if the offence for which the sentence was imposed is not an offence under its national law.

3. No request for transit shall be required if transport is by air over the territory of a Party and no landing there is scheduled. However that Party shall be notified of any such transit.

ARTICLE 13

LANGUAGE AND COSTS

1. Requests for transfer as well as the documents and declarations shall be submitted in the language of the Transferring Party, furnished with translation in English.

2. All costs incurred in relation to the transfer of the sentenced person or the continued enforcement of the sentence after transfer shall be borne by the Receiving Party, except costs incurred exclusively within the territory of the Transferring Party.

ARTICLE 14

OTHER AGREEMENTS

This Treaty shall not affect the rights or obligations of the Parties under treaties or other international agreements to which any of them is a Party.

ARTICLE 15

SETTLEMENT OF DISPUTES

Any dispute arising out of the interpretation, application, or implementation of this Treaty shall be resolved through negotiations between the central authorities. If the central authorities are unable to reach an agreement, the dispute shall be resolved by the Parties through diplomatic channels.

ARTICLE 16

FINAL PROVISIONS

1. This Treaty shall enter into force on the thirtieth (30) day after receiving the last written notification through diplomatic channels in which the Parties notify each other on the completion of the necessary internal legal procedures for the entry into force of the Treaty.

2. This Treaty shall be applicable to the transfer of sentenced persons who have been sentenced either before or after the entry into force of this Treaty.

3. Upon the entry into force of this Treaty, Articles 79-95 of the Convention on Mutual Legal Assistance in Civil, Family Law and Criminal Matters signed on 18 January 1985 in Hanoi, shall cease to have any effect.

4. This Treaty will remain in force for an indefinite period.

5. Either Party may terminate this Treaty at any time by notice in writing to the other Party through diplomatic channels. Termination shall take effect six months after the date on which the notice is received.

6. Notwithstanding any termination, this Treaty shall continue to apply to the enforcement of the sentences of sentenced persons who have been transferred under this Treaty before the date on which such termination takes effect.

IN WITNESS WHEREOF, the undersigned, being duly authorized in accordance with their respective national laws, have signed this Treaty.

DONE at Budapest in duplicate, on this 16^th day of September in the year of 2013, in the Vietnamese, Hungarian and English languages, each text being equally authentic. In case of any divergence of interpretation, the English text shall prevail.