Research on EU Criminal Judicial Assistance and Bilingual Chinese-English Official Documents

Author: Zhao Bingzhi
Publisher:
Publish Date: 2003-04-01
Features: Excerpt (IV) Transit through a Third Country Although the European continent is not very large, there are many countries. If a transfer of prisoners occurs between two non-adjacent states, the issue of transit through a third country arises, and the resolution of this issue depends on the attitude of the transit state. ① Article 16 of the Convention on Transit is formulated in reference to Article 21 of the European Convention on Extradition and Article 13 of the European Convention on the International Validity of Criminal Judgments. It establishes rules for guiding the transfer of convicted persons from the sentencing state to the executing state via another contracting state. First, contracting states are obligated to grant transit requests in accordance with their domestic laws. However, this obligation only becomes binding under the following two conditions: (1) the transit request must be submitted by another contracting state; (2) the requesting state must have reached an agreement with another contracting state or a third state for the transfer of the convicted person. The latter condition means that the obligation to grant transit only binds the contracting state when the sentencing state and the executing state have reached an agreement on the transfer of the convicted person. It should be noted that the obligation to grant transit applies only to requests from contracting states. If the request is made by a third state, Article 16(4) of the Convention applies. This means that if a third state outside the contracting states submits a transit request, agreeing to the request is merely a matter of choice rather than an obligation. If the third state that submitted the transit request has reached an agreement with another contracting state for the transfer of the convicted person, then "may" rather than "shall" grant its transit request. Second, the requested state may refuse to agree to transit in specific circumstances, including: (1) the convicted person is a national of the requested state; (2) according to its domestic law, the crime for which the sentence was imposed does not constitute a crime. The requested state may detain the convicted person only for the time required for transit through its territory. The requesting state may require the requested state to make a commitment not to prosecute the convicted person for any crime or sentence imposed before they leave the territory of the sentencing state, or to restrict their freedom in other ways within the transit state. Article 16(1) does not exclude the transit of nationals of the transit state, but Article 16(2) grants contracting states the right to refuse transit if the parties are their nationals (of course, the above provisions also apply to transit achieved by air and where the parties make a declaration under Article 7 of the Convention); it also grants contracting states the right to refuse to grant transit if the crime for which the sentence is imposed does not constitute a crime under their domestic law. Third, the convicted person is immune from arrest and prosecution in the transit state. The requested state is required to guarantee that the convicted person enjoys immunity from any crime or sentence imposed before they leave the territory of the sentencing state, except in the case where the transit state detains the convicted person only for the time required for transit through its territory. Finally, if the transport of the convicted person is by air over the territory of a party state without a landing plan in that state, no transit request is required. However, states may submit declarations to the Secretary-General of the Council of Europe at the time of signing or depositing of instruments of ratification, acceptance, or accession, requesting that such transit also be notified to them. It is clear that, unlike the practice under Article 21(4) of the European Convention on Extradition, which requires notification to the transit state in such cases, Article 16(6) of the Convention leaves it to each contracting state to decide through a declaration whether it needs notification of such transit. Additionally, regarding the means of transmitting transit requests and replies, it is the same as the means of transmitting transfer requests and replies, i.e., in principle, requests and replies must be transmitted through the ministries of justice of the two relevant states, but contracting states may declare that they adopt other means of transmission.