The conclusion of an agreement on the transfer of sentenced persons between Lebanon and Syria raises a set of profound legal and constitutional questions that go beyond the procedural dimension related to the enforcement of sentences. It touches upon the very core of the principle of legality, the balance of powers, guarantees of a fair trial, and its implications for the rights of individuals subject to it. This agreement falls within a complex international legal framework governed by rules of public international law, comparative practices in bilateral agreements, and domestic constitutional constraints.
The legal scholar Ghida Frangieh, in a report published by The Legal Agenda, examines the legal dimensions of the agreement, highlighting in particular the mechanism of its conclusion and whether it complied with the constitutional procedures stipulated under Lebanese law. Article 52 of the Lebanese Constitution assigns to the President of the Republic, in coordination with the Council of Ministers, the authority to negotiate and conclude international treaties. However, it requires that certain categories of treaties be submitted to Parliament for approval, particularly those that cannot be terminated annually, that entail financial obligations, or that affect citizens’ rights.
This interpretation is reinforced by comparison with similar agreements concluded with other countries, which were adopted following parliamentary approval, including agreements with Russia (Law No. 49/2017), Bulgaria (Law No. 467/2002), and Cyprus (Law No. 481/1995). Additionally, the Arab Convention on the Transfer of Inmates of Correctional and Rehabilitation Institutions, adopted within the framework of the League of Arab States and entering into force in 2013, was ratified by Decree No. 8780/2022.
With regard to bilateral agreements with Syria, several have also been concluded following parliamentary approval, including the annex to the 1997 judicial cooperation agreement relating to litigation rights and recognition of arbitration mechanisms between the two countries (Law No. 630/1997). By contrast, a cooperation agreement between the judicial institutes of both countries for the exchange of expertise was concluded by decree without parliamentary approval (Decree No. 11433/2003).
It is also noteworthy that the two States had previously signed a similar agreement in 2010 regulating the transfer of sentenced persons, titled “Agreement on the Transfer of Persons Sentenced to Custodial Penalties,” signed on 18 July 2010 by the Lebanese Minister of Justice Ibrahim Najjar and his Syrian counterpart Ahmad Hamoud Younes. Although this agreement was published on the website of the Lebanese-Syrian Higher Council, no evidence could be found that it was ratified in accordance with constitutional procedures, whether by decree or by law, suggesting that it never entered into force.
Based on this standard, the classification of the current agreement raises questions, particularly given its indefinite nature, as it remains in force until terminated by one of the parties. This suggests that it should be subject to parliamentary approval. If it were concluded solely by a decree issued by the executive branch without parliamentary involvement, this could raise concerns of constitutional violation, particularly regarding the overstepping of powers and the principle of separation of powers.
The legal discussion does not stop at the issue of conclusion, but extends to the nature of the legal regime established by the agreement. It does not result in the extinguishment or termination of the sentence but rather in the transfer of its enforcement from one State to another, in accordance with the principle of “continuity of enforcement of sentences.” This means that the judgment issued by the courts of the sentencing State remains legally valid, while the receiving State carries out the execution of the sentence under its domestic law, without altering its nature or aggravating it.
This principle is well established in international agreements on the transfer of sentenced persons, as it balances the sovereignty of the sentencing State with humanitarian and procedural considerations relating to the individual, such as enabling them to serve their sentence in a social and cultural environment closer to them. However, this balance depends on the clarity of legal safeguards governing the relationship between the original judgment and the mechanisms of enforcement in the receiving State.
In this context, the conditions required for the transfer of sentenced persons are fundamental to protecting their rights and preventing abuse by either State. Among the most important of these conditions is the principle of dual criminality, requiring that the acts for which the person was convicted be criminalized in both legal systems, as well as the requirement of the sentenced person’s consent, reflecting respect for their free will and preventing coercive transfers that may amount to inhuman or degrading treatment.
Similar agreements typically also require the consent of both States involved, reinforcing the sovereign nature of this form of judicial cooperation. However, such consent may sometimes be used to refuse transfers based on broad and undefined concepts such as “national security” or “public order,” raising concerns about the expansion of State discretion at the expense of individual rights.
Another significant legal issue concerns the distinction between categories of detainees, particularly between sentenced persons and pretrial detainees. The former are subject to final or enforceable judgments and fall within the regime of sentence enforcement, allowing the executive authority some discretion in organizing its execution, including transfer. Pretrial detainees, however, remain subject to the presumption of innocence, and any decisions regarding their status, including transfer, fall exclusively within judicial authority.
This distinction reflects the principle of separation of powers, which prevents the executive from interfering in judicial functions or influencing the course of justice. Therefore, any attempt to extend the application of such agreements to pretrial detainees without adequate judicial safeguards may constitute a violation of this principle and endanger individual rights.
The agreement also raises questions regarding post-transfer guarantees, particularly in relation to sentence enforcement in the receiving State. While the sentence is supposed to continue in accordance with the original judgment, its execution is subject to the laws of the receiving State, which may result in differences in calculating sentence duration, conditions for early release, or even the granting of pardon.
The issue here lies in the absence of clear provisions governing the relationship between the two legal systems and defining the limits of the receiving State’s authority to modify or reduce the sentence. In some agreements, it is explicitly stated that the sentence may not be aggravated and that its nature and duration must be respected, while allowing for adaptation to domestic law. In the absence of such safeguards, differing interpretations may arise, undermining legal certainty and creating instability for sentenced individuals.
Closely related is the issue of pardon or sentence reduction after transfer, one of the most sensitive aspects of such agreements. While some legal systems allow the executing State to grant pardon or reduction, this may conflict with the will of the sentencing State and raise questions about respect for its judicial sovereignty. In the absence of explicit regulation, recourse must be made to general principles of international law and comparative practice.
Finally, the human rights dimension cannot be overlooked. The transfer of sentenced persons must take place in full compliance with international human rights standards, including the right to a fair trial, the prohibition of torture and inhuman or degrading treatment, and respect for the dignity of detainees. This requires ensuring that the receiving State provides detention conditions consistent with these standards and that the individual will not be subjected to violations or discrimination.
It also requires verifying that the consent of the sentenced person is free and informed, and that they fully understand the legal consequences of transfer, including differences in enforcement regimes and potential impacts on their procedural rights. This safeguard is essential to prevent the transfer system from being used as a tool of coercion.
In conclusion, the agreement on the transfer of sentenced persons reveals a complex interplay between considerations of sovereignty, judicial cooperation, and human rights guarantees, within a legal framework that requires precision, clarity, and strict adherence to constitutional principles. It also highlights the need for such agreements to be subject to broad institutional and public debate, involving various legal stakeholders, to ensure compliance with national and international standards.
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