TONGA

TRANSFER OF PRISONERS ACT 1997

No. 8 of 1997

I assent,
TAUFA'AHAU TUPOU IV,
15th September, 1997

AN ACT

TO IMPLEMENT TREATIES ON THE TRANSFER OF PERSONS FOUND GUILTY OF CRIMINAL OFFENCES

[27th August, 1997]

BE IT ENACTED by the King and Legislative Assembly of Tonga in the Legislature of the Kingdom as follows:

Short Title 

1. This Act may be cited as the Transfer of Prisoners Act 1997.

Definitions

2. In this Act-

"foreign prisoner" means a citizen or a national of a foreign state who has been found guilty of a criminal offence and is subject to imprisonment in Tonga;

"foreign state" means a state which has entered into a treaty on the transfer of prisoners with Tonga and is listed in the Schedule to this Act;

"Minister" means the Minister of Justice of the Kingdom of Tonga;

"Tongan prisoner" means a Tongan subject within the meaning of the Nationality Act, or a person who has close ties with Tonga, who has been found guilty of a criminal offence and is subject to imprisonment in a foreign state.

Transfer of Tongan prisoner to Tonga.

3. A Tongan prisoner who requests transfer to Tonga pursuant to a treaty on the transfer of prisoners entered into between Tonga and the foreign state in which he was found guilty shall be dealt with in accordance with this Act.

Effect of transfer.

4. Where a Tongan prisoner is transferred to Tonga, the conviction and sentence by a court of the foreign state from which he is transferred is deemed to be a conviction and sentence imposed by a court of competent jurisdiction in Tonga for a criminal offence.

Evidence.

5. On the transfer of a Tongan prisoner, documents supplied by the foreign state from which the prisoner is transferred setting out the conviction and sentence imposed are, if they purport to be signed by a Judicial official or director of a person of the foreign state, in the absence of evidence to the contrary, evidence of the facts alleged therein without proof of the signature or official character of the person by whom they purport to be signed.

Procedure of Transfer.

6. (1) Where the Minister is informed on behalf of a foreign state that a Tongan prisoner has requested transfer to Tonga and that the responsible authority in that state agrees to such transfer the Minister shall cause the foreign state to be advised whether the Cabinet approves or disapproves the transfer of such prisoner and where it approves the transfer, he shall make the necessary arrangements therefor.

(2) A request from a Tongan prisoner for transfer to Tonga shall not be approved unless-

(a)	(i) he is a Tongan subject notwithstanding that he may also be a national of any other country including the foreign state where he is being imprisoned; or

(ii) he has close ties with Tonga of a kind that may be recognised by Cabinet for the purposes of this Act;

(b) his imprisonment is a result of a final judgement;

(c) that at the time of receipt of his request by the Minister he still has at least six months of his sentence to serve or that his sentence is indeterminate;

(d) that both Tonga and the foreign state where he is being imprisoned agree to the transfer.

Conviction and sentence cannot be reviewed.

7. The conviction of, and the sentence imposed upon, a Tongan prisoner transferred to Tonga under this Act shall not be subject to any appeal or to any form of review in Tonga.

Warrant for incarceration.

8. A Tongan prisoner transferred to Tonga under this Act shall be detained in prison as if his conviction and sentence in the foreign country was imposed by a court of competent jurisdiction in Tonga for a criminal offence, and the warrant of the Minister to that effect shall be sufficient authority for his imprisonment.

Remission.

9. (1) A Tongan prisoner transferred to Tonga-

(a) shall be credited with any remission of his sentence that was credited to him at the date of his transfer by the foreign state in which he was convicted and sentenced; and

(b) is eligible to earn remission as if he had been committed to custody on the date of his transfer pursuant to a sentence imposed by a court in Tonga.

(2) For the purpose of this section the date of transfer of a Tongan prisoner shall be the date on which he is delivered to the responsible authority designated by the Minister.

Pardon.

10. Where a foreign state has exercised the power to pardon a Tongan prisoner transferred to Tonga, that prisoner shall no longer be subject to imprisonment or any other form of supervision by reason only of the sentence imposed for the offence in respect of which the pardon was granted.

Transfer of foreign prisoners from Tonga.

11. A foreign prisoner may request transfer to a foreign state by applying to the Minister and may be transferred if approval is given pursuant to section 13 of this Act.

Obligation to provide information.

12. The Minister shall, on request by a foreign prisoner, provide him with a copy of the treaty on the transfer of prisoners entered into between Tonga and a foreign state designated in the request.

Delivery.

13. Where the transfer of a foreign prisoner to a foreign state has been approved by Tonga and the foreign state concerned, he shall be delivered to the responsible authority designated by that foreign state.

Prisoners in lawful custody during transfer.

14. A prisoner shall, while he is being transferred under this Act, be deemed to be in the lawful custody of the person duly authorised to conduct him and to be subject to the same restraint and, in the event of misbehaviour, to the same punishment as if he were in prison in Tonga and as if the person conducting him were a prison officer; and if the prisoner escapes or attempts to escape from such custody the prisoner and any person aiding or attempting to aid him in such escape shall be liable on conviction to the same penalty as if such escape or attempt to escape were an escape or attempt to escape from such a prison.

Schedule.

15. His Majesty in Council may, by order, amend the Schedule by adding thereto or deleting therefrom the name of any foreign state that has entered into or terminated a treaty with Tonga on the transfer of prisoners.

Regulations.

16. The Minister, with the consent of Cabinet, may make regulations for the carrying out of the purposes of this Act.

SCHEDULE

Passed by the Legislative Assembly this 27th day of August, 1997.

------------------------------