CELEX: 22009A1202(01)
Language: en
Date: 2009-12-02 00:00:00
Title: Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and for their Treatment after such Transfer

2.12.2009          EN                            Official Journal of the European Union                                    L 315/37
          Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions
          and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the
                             Republic of Seychelles and for their Treatment after such Transfer
                                                 A. Letter from the Republic of Seychelles
          Your Excellency,
          Reference is made to the working session held in Seychelles on the 18th and 19th August 2009 to discuss
          the EU Agreements on Piracy and Armed Robbery which involved the participation of representatives of the
          EU, the members of the Seychelles High Level Committee and other related institutions and to our
          subsequent letter of August 21, 2009.
          In the course of the working session, the concerns of the different related institutions on the transfer of
          suspected pirates and armed robbers were tabled. The ‘Guidance for the Transfer of Suspected pirates, armed
          robbers and seized property to Seychelles’ prepared by the Attorney General of the Republic of Seychelles, which
          is intended to ensure that any transfer of persons suspected of acts of piracy and armed robbery is done in
          accordance with the laws of Seychelles was approved in principle. It was also agreed that the Implementing
          Arrangements (which clarifies Article 10 of the proposed Transfer Agreement) could be agreed upon after
          the proposed Transfer Agreement has been finalised and that a common Guidance on the handover of
          suspected pirates, armed robbers and seized property is prepared. Furthermore, that the Republic of
          Seychelles will be provided with the necessary assistance for the detention, maintenance, investigation,
          prosecution trial and repatriation of the suspected pirates and armed robbers.
          Following the working session and our letter, further discussions have taken place within the High Level
          Committee on the transfer of suspected pirates and armed robbers to the territory of the Republic of
          Seychelles.
          The Government of the Republic of Seychelles would like to take this opportunity to renew its reassurance
          to the EU of its commitment to cooperate to its fullest possible extent, having regard to its available
          resources and infrastructure capacities, in the repression of piracy to accept the transfer of captured
          suspected pirates and armed robbers.
          At the same time, the Government of the Republic of Seychelles would like to express its desire that the EU
          SOFA be signed as discussions continue on the proposed EU Transfer Agreement.
          In view of ongoing negotiations and pending conclusion of a mutually acceptable arrangement between the
          EU and the Government of the Republic of Seychelles on the transfer of pirates and armed robbers to its
          territory, the Government of the Republic of Seychelles may authorize the EUNAVFOR to transfer suspected
          pirates and armed robbers captured in the course of its operations in the exclusive economic zone, terri­
          torial sea, archipelagic waters and internal waters of the Republic of Seychelles. This authorization is
          extended to the protection of Seychelles flagged vessels and Seychellois Citizens on a non-Seychelles
          flagged vessel beyond the limit aforementioned and in other circumstances on the high seas at the discretion
          of the Republic of the Seychelles.
          Provided always that:
          — The EU, aware of the limited capacities of the Republic of Seychelles to accept, try, detain and incar­
               cerate suspected pirates and armed robbers and in consideration of the acceptance by the Republic of
               Seychelles of the transfer of any suspected pirates and armed robbers to its territory, shall provide the
               Republic of Seychelles with such full financial, human resource, material, logistical and infrastructural
               assistance for the detention, incarceration maintenance, investigation, prosecution, trial and repatriation
               of the suspected or convicted pirates and armed robbers;
          — The Attorney General shall have at least 10 days from the date of transfer of the suspected pirates or
               armed robbers to decide on the sufficiency of the available evidence in view of prosecution,
 ---pagebreak--- L 315/38       EN                           Official Journal of the European Union                                      2.12.2009
         — In the event that the Attorney General decides that there is insufficient evidence to prosecute, the
           EUNAVFOR shall take the full responsibility, including the financial costs, of transferring the
           suspected pirates and armed robbers back to their country of origin within 10 days of EUNAVFOR
           having been notified of such a decision;
         — Any transfer of suspected pirates and armed robbers shall as far as possible be in accordance with the
           ‘Guidance for the Transfer of Suspected pirates, armed robbers and seized property to Seychelles’,
         — The Government of the Republic of the Seychelles also confirms that:
           — Any transferred person will be treated humanely and will not be subjected to torture or cruel,
               inhuman or degrading treatment or punishment, will receive adequate accommodation and nour­
               ishment, access to medical treatment and will be able to carry out religious observance.
           — Any transferred person will be brought promptly before a judge or other officer authorised by law to
               exercise judicial power, who will decide without delay on the lawfulness of his detention and will
               order his release if the detention is not lawful,
           — Any transferred person will be entitled to trial within a reasonable time or to release,
           — In the determination of any criminal charge against him, any transferred person will be entitled to a
               fair and public hearing by a competent, independent and impartial tribunal established by law,
           — Any transferred person charged with a criminal offence will be presumed innocent until proved
               guilty according to law,
           — In the determination of any criminal charge against him, every transferred person will be entitled to
               the following minimum guarantees, in full equality:
               (1) to be informed promptly and in detail in a language which he understands of the nature of the
                    charge against him;
               (2) to have adequate time and facilities for the preparation of his defence and to communicate with
                    counsel of his own choice;
               (3) to defend himself in person or through legal assistance of his own choice; to be informed, if he
                    does not have legal assistance, of this right; and to have legal assistance assigned to him, in any
                    case where the interests of justice so require, and without payment by him in any such case if he
                    does not have sufficient means to pay for it;
               (4) to examine, or have examined, all evidence against him, including affidavits of witnesses who
                    conducted the arrest, and to obtain the attendance and examination of witnesses on his behalf
                    under the same conditions as witnesses against him;
               (5) to have the free assistance of an interpreter if he cannot understand or speak the language used
                    in court;
               (6) not to be compelled to testify against himself or to confess guilt.
           — Any transferred person convicted of a crime will be permitted to have the right to have its
               conviction and sentence reviewed by or appealed to a higher tribunal in accordance with the law
               of the Seychelles,
           — The Seychelles will not transfer any transferred person to any other State without prior written
               consent from EUNAVFOR,
 ---pagebreak--- 2.12.2009        EN                        Official Journal of the European Union                                 L 315/39
          This arrangement has been discussed and agreed by the Seychelles authorities. The arrangements proposed
          herewith may come into force when the European Union indicates its agreement in writing.
          Yours Sincerely,
          Mr J. Morgan
          THE MINISTER
          Chairman of the High Level Committee of Piracy
 ---pagebreak--- L 315/40         EN                            Official Journal of the European Union                                      2.12.2009
                                                 B. Letter from the European Union
         Your Excellency,
         I have the honour to acknowledge receipt of your letter dated 29 September 2009 regarding the conditions
         and modalities for the transfer of suspected pirates and armed robbers from EUNAVFOR to the Republic of
         Seychelles and for their treatment after such transfer, which reads as follows:
              ‘Reference is made to the working session held in Seychelles on August 18 and 19, 2009 to discuss the
              EU Agreements on Piracy and Armed Robbery which involved the participation of representatives of
              the EU, the members of the Seychelles High Level Committee and other related institutions and to our
              subsequent letter of August 21, 2009.
              In the course of the working session, the concerns of the different related institutions on the transfer of
              suspected pirates and armed robbers were tabled. The “Guidance for the Transfer of Suspected pirates, armed
              robbers and seized property to Seychelles” prepared by the Attorney General of the Republic of Seychelles,
              which is intended to ensure that any transfer of persons suspected of acts of piracy and armed robbery
              is done in accordance with the laws of Seychelles was approved in principle. It was also agreed that the
              Implementing Arrangements (which clarifies Article 10 of the proposed Transfer Agreement) could be
              agreed upon after the proposed Transfer Agreement has been finalised and that a common Guidance
              on the handover of suspected pirates, armed robbers and seized property is prepared. Furthermore, that
              the Republic of Seychelles will be provided with the necessary assistance for the detention, main­
              tenance, investigation, prosecution trial and repatriation of the suspected pirates and armed robbers.
              Following the working session and our letter, further discussions have taken place within the High
              Level Committee on the transfer of suspected pirates and armed robbers to the territory of the
              Republic of Seychelles.
              The Government of the Republic of Seychelles would like to take this opportunity to renew its
              reassurance to the EU of its commitment to cooperate to its fullest possible extent, having regard
              to its available resources and infrastructure capacities, in the repression of piracy to accept the transfer
              of captured suspected pirates and armed robbers.
              At the same time, the Government of the Republic of Seychelles would like to express its desire that
              the EU SOFA be signed as discussions continue on the proposed EU Transfer Agreement.
              In view of ongoing negotiations and pending conclusion of a mutually acceptable arrangement
              between the EU and the Government of the Republic of Seychelles on the transfer of pirates and
              armed robbers to its territory, the Government of the Republic of Seychelles may authorize the
              EUNAVFOR to transfer suspected pirates and armed robbers captured in the course of its operations
              in the exclusive economic zone, territorial sea, archipelagic waters and internal waters of the Republic
              of Seychelles. This authorization is extended to the protection of Seychelles flagged vessels and
              Seychellois Citizens on a non-Seychelles flagged vessel beyond the limit aforementioned and in
              other circumstances on the high seas at the discretion of the Republic of the Seychelles.
              Provided always that:
              — The EU, aware of the limited capacities of the Republic of Seychelles to accept, try, detain and
                  incarcerate suspected pirates and armed robbers and in consideration of the acceptance by the
                  Republic of Seychelles of the transfer of any suspected pirates and armed robbers to its territory,
                  shall provide the Republic of Seychelles with such full financial, human resource, material, logistical
                  and infrastructural assistance for the detention, incarceration maintenance, investigation, pros­
                  ecution, trial and repatriation of the suspected or convicted pirates and armed robbers;
              — The Attorney General shall have at least 10 days from the date of transfer of the suspected pirates
                  or armed robbers to decide on the sufficiency of the available evidence in view of prosecution,
 ---pagebreak--- 2.12.2009  EN                           Official Journal of the European Union                                      L 315/41
          — In the event that the Attorney General decides that there is insufficient evidence to prosecute, the
            EUNAVFOR shall take the full responsibility, including the financial costs, of transferring the
            suspected pirates and armed robbers back to their country of origin within 10 days of
            EUNAVFOR having been notified of such a decision;
          — Any transfer of suspected pirates and armed robbers shall as far as possible be in accordance with
            the “Guidance for the Transfer of Suspected pirates, armed robbers and seized property to Seychelles”,
          — The Government of the Republic of the Seychelles also confirms that:
            — Any transferred person will be treated humanely and will not be subjected to torture or cruel,
                inhuman or degrading treatment or punishment, will receive adequate accommodation and
                nourishment, access to medical treatment and will be able to carry out religious observance.
            — Any transferred person will be brought promptly before a judge or other officer authorised by
                law to exercise judicial power, who will decide without delay on the lawfulness of his detention
                and will order his release if the detention is not lawful,
            — Any transferred person will be entitled to trial within a reasonable time or to release,
            — In the determination of any criminal charge against him, any transferred person will be entitled
                to a fair and public hearing by a competent, independent and impartial tribunal established by
                law,
            — Any transferred person charged with a criminal offence will be presumed innocent until proved
                guilty according to law,
            — In the determination of any criminal charge against him, every transferred person will be
                entitled to the following minimum guarantees, in full equality:
                (1) to be informed promptly and in detail in a language which he understands of the nature of
                    the charge against him;
                (2) to have adequate time and facilities for the preparation of his defence and to communicate
                    with counsel of his own choice;
                (3) to defend himself in person or through legal assistance of his own choice; to be informed, if
                    he does not have legal assistance, of this right; and to have legal assistance assigned to him,
                    in any case where the interests of justice so require, and without payment by him in any
                    such case if he does not have sufficient means to pay for it;
                (4) to examine, or have examined, all evidence against him, including affidavits of witnesses
                    who conducted the arrest, and to obtain the attendance and examination of witnesses on
                    his behalf under the same conditions as witnesses against him;
                (5) to have the free assistance of an interpreter if he cannot understand or speak the language
                    used in court;
                (6) not to be compelled to testify against himself or to confess guilt.
            — Any transferred person convicted of a crime will be permitted to have the right to have its
                conviction and sentence reviewed by or appealed to a higher tribunal in accordance with the
                law of the Seychelles,
 ---pagebreak--- L 315/42         EN                           Official Journal of the European Union                                      2.12.2009
                   — The Seychelles will not transfer any transferred person to any other State without prior written
                       consent from EUNAVFOR,
               This arrangement has been discussed and agreed by the Seychelles authorities. The arrangements
               proposed herewith may come into force when the European Union indicates its agreement in
               writing. This is without prejudice to the legal or policy positions taken by the delegations of both
               parties in the ongoing negotiations.’.
         I have the honour to confirm, on behalf of the European Union, that the content of your letter is acceptable
         to the European Union. This Instrument will be applied provisionally by the European Union from the date
         of signature of this letter and will enter into force definitively once the European Union has completed its
         internal procedures for conclusion.
         With regard to the reference in your letter to the consideration by the Seychelles Attorney General of the
         sufficiency of the available evidence in view of prosecution, the European Union understands that you have
         agreed that, since EUNAVFOR will communicate in each case all the evidence available to it at the time,
         such as logbooks, pictures and videos, this will allow the Seychelles Attorney General to take a decision on
         the sufficiency of such evidence before accepting the transfer of suspected pirates and armed robbers.
         I also recall that, as mentioned in your letter, this Instrument will apply on a transitional basis, pending the
         conclusion of a mutually acceptable transfer agreement between the EU and the Republic of Seychelles on
         the transfer of pirates and armed robbers to the territory of the Republic of Seychelles.
         Please, accept Sir, the assurance of my highest consideration.
                                                                                                   For the European Union
                                                                                                 J. SOLANA MADARIAGA
 ---pagebreak--- 2.12.2009           EN                            Official Journal of the European Union                                             L 315/43
          DECLARATION BY THE EUROPEAN UNION ON THE OCCASION OF THE SIGNATURE OF THE EXCHANGE
          OF LETTERS BETWEEN THE EUROPEAN UNION AND THE REPUBLIC OF SEYCHELLES ON THE
          CONDITIONS AND MODALITIES FOR THE TRANSFER OF SUSPECTED PIRATES AND ARMED ROBBERS
          FROM EUNAVFOR TO THE REPUBLIC OF SEYCHELLES AND FOR THEIR TREATMENT AFTER SUCH
                                                                  TRANSFER
          1. The European Union (EU) notes that nothing in the Exchange of letters between the European Union and the Republic
             of Seychelles on the conditions and modalities for the transfer of suspected pirates and armed robbers is intended to
             derogate, or may be construed as derogating, from any rights that a transferred person may have under applicable
             domestic or international law.
          2. The EU notes that representatives of the EU and of EUNAVFOR will be granted access to any persons transferred to
             the Republic of Seychelles (Seychelles) pursuant to the Exchange of Letters as long as such persons are held in custody
             there, and that representatives of the EU and of EUNAVFOR will be entitled to question them.
             For this purpose, the EU notes that an accurate account will be made available to representatives of the EU and of
             EUNAVFOR of all transferred persons, including records of any seized property, the persons' physical condition, their
             place of detention, any charges against them and any significant decisions taken in the course of their prosecution and
             trial.
             EUNAVFOR is willing to provide timely assistance to Seychelles through the attendance of witnesses from EUNAVFOR
             and the provision of relevant evidence. For this purpose, Seychelles should notify EUNAVFOR of its intention to
             initiate criminal proceedings against any transferred person and the timetable for the provision and hearing of
             evidence.
             The EU notes that national and international humanitarian agencies will also be allowed, at their request, to visit
             persons transferred under the Exchange of Letters.