Memorandum of Understanding between the
General People's Committee for Foreign Liaison and International
Co-operation of the Great Socialist People's Libyan Arab Jamahiriya
and the Foreign and Commonwealth Office of the United Kingdom
of Great Britain and Northern Ireland concerning the provision
of assurances in respect of persons subject to deportation
APPLICATION AND
SCOPE
A request for assurances under this Memorandum
may be made by the sending state in respect of any citizen of
the receiving state, any stateless person who was habitually resident
in the receiving state, or any third-country national whom the
receiving state is prepared to admit.
Such requests will be submitted in writing either
by the British Embassy in Tripoli to the General People's Committee
for Foreign Liaison and International Co-operation or by the People's
Bureau of the Great Socialist People's Libyan Arab Jamahiriya
in London to the Foreign and Commonwealth Office. The state to
which the request is made will acknowledge receipt of the request
within five working days.
A final response to such a request will be given
promptly in writing by the Foreign Secretary in the case of a
request made to the United Kingdom, or by the Secretary of the
General People's Committee for Foreign Liaison and International
Co-operation in the case of a request made to Libya.
To assist a decision on whether to request assurances
under this Memorandum, the receiving state will inform the sending
state of any penalties outstanding against a person to be deported,
and of any outstanding convictions or criminal charges pending
against him and the penalties which could be imposed.
Requests under this Memorandum may include requests
to the receiving state for further specific assurances. It will
be for the receiving state to decide whether to give such further
assurances.
The United Kingdom and the Great Socialist People's
Libyan Arab Jamahiriya will comply with their human rights obligations
under international law regarding a person in respect of whom
assurances are given under this Memorandum. The assurances set
out in the following paragraphs (numbered 1-9) will apply to such
a person, together with any further specific assurances provided
by the receiving state.
An independent body ("the monitoring body")
will be nominated by both sides to monitor the implementation
of the assurances given under this Memorandum, including any specific
assurances, by the receiving state. The responsibilities of the
monitoring body will include monitoring the return of, and any
detention, trial or imprisonment of, the person. The monitoring
body will report to both sides.
ASSURANCES
1. Where, before his deportation, a person
has been tried and convicted of an offence in the receiving state
in absentia, he will be entitled to a re-trial for that offence
on his return.
2. In cases where the person may face the
death penalty in the receiving state, the receiving state will,
if its laws allow, provide a specific assurance that the death
penalty will not be carried out. In any case, where there are
outstanding charges, or where charges are subsequently brought,
against the person in respect of an offence allegedly committed
before his deportation, the authorities of the receiving state
will utilise all the powers available to them under their system
for the administration of justice to ensure that, if the death
penalty is imposed, the sentence will not be carried out.
3. If arrested, detained or imprisoned following
his deportation, the deported person will be afforded adequate
accommodation, nourishment, and medical treatment, and will be
treated in a humane and proper manner, in accordance with internationally
accepted standards.
4. If the deported person is arrested or
detained, he will be informed promptly by the authorites of the
receiving state of the reasons for his arrest or detention, and
of any charge against him. The person will be entitled to consult
a lawyer promptly.
5. If the deported person is arrested or
detained, he will be brought promptly before a civilian judge
or other civilian official authorised by law to exercise judicial
power in order that the lawfulness of his detention may be decided.
6. The deported person will have unimpeded
access to the monitoring body unless they are arrested, detained
or imprisoned. If the person is arrested, detained or imprisoned,
he will be entitled to contact promptly a representative of the
monitoring body and to meet a representative of the monitoring
body within one week of his arrest, detention or imprisonment.
Thereafter he will be entitled to regular visits from a representative
of the monitoring body in co-ordination with the competent legal
authorities. Such visits will include the opportunity for private
interviews with the person and, during any period before trial,
will be permitted at least once every three weeks. If the representative
of the monitoring body considers a medical examination of the
person is necessary, he will be entitled to arrange for one or
to ask the authorities of the receiving state to do so.
7. The deported person will be allowed to
follow his religious observance following his return, including
while under arrest, or while detained or imprisoned.
8. If the deported person is charged with
an offence he will receive a fair and public hearing without undue
delay by a competent, independent and impartial civilian court
established by law. The person will be allowed adequate time and
facilities to prepare his defence, and will be permitted to examine
or have examined the witnesses against him and to call and have
examined witnesses on his behalf. He will be allowed to defend
himself in person or through legal assistance of his own choosing,
or, if he has not sufficient means to pay for legal assistance,
to be given it free when the interests of justice so require.
9. Any judgement against the deported person
will be pronounced publicly, but the press and public may be excluded
from all or part of the trial in the interests of morals, public
order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of
the parties so require, or to the extent strictly necessary in
the opinion of the court in special circumstances where publicity
would prejudice the interest of justice.
WITHDRAWAL
Either participant may withdraw from this Memorandum
by giving six months notice in writing to the diplomatic mission
of the other.
Where one or other participant withdraws from
the Memorandum any assurances given under it in respect of a person
will continue to apply in accordance with its provisions.
SIGNATURE
This Memorandum of Understanding represents
the understandings reached upon the matters referred to therein
between the Great Socialist People's Libyan Arab Jamahiriya and
the United Kingdom of Great Britain and Northern Ireland.
Signed in duplicate at Tripoli on 18 October
2005 in the English and Arabic languages, both texts having equal
validity.
Anthony Layden
HM Ambassador
British Embassy, Tripoli
For the United Kingdom of Great Britain and Northern
Ireland
Abdulati Ibrahim al-Obidi
Acting Secretary for European Affairs
Secretariat for Foreign Liaison and International
Cooperation
For the Great Socialist People's Libyan Arab Jamahiriya
We, the undersigned, hereby appoint the Implementation
Body, comprising the Qadhafi Development Foundation supported
by other independent organisations, to monitor, in accordance
with attached Terms of Reference, the execution of the undertakings
given under the Memorandum of Understanding between the General
People's Committee for Foreign Liaison and International Co-operation
of the Great Socialist People's Libyan Arab Jamahiriya and the
Foreign and Commonwealth Office of the United Kingdom of Great
Britain and Commonwealth Office of the United Kingdom of Great
Britain and Northern Ireland dated 18 October 2005 (the MOU),
in relation to returns to Libya under the MOU.
We undertake to support and facilitate the Implementation
Body's full and unrestricted implementation of these Terms of
Reference.
Signed in Tripoli on 8 May 2006 in English and Arabic.
For the Great Socialist People's Libyan Arab Jamahiriya
For the Government of the United Kingdom of Great
Britain and Northern Ireland
We accept this appointment and attached Terms
of Reference on behalf of the Implementation Body.
For the Qadhafi Development Foundation
TERMS OF REFERENCE FOR IMPLEMENTATION BODY
1. Key features of the Implementation Body
(a) The Implementation Body must be independent
of the government of the receiving State, ie:
— The State must have no influence
over the mandate of the Body, nor over its existence/composition,
even on a change of government.
— The Body's personnel must be independent
of the State.
— The Body must be financially independent.
18[9]
— The Body must be able to produce
frank and honest reports.
(b) The Implementation Body must have the
capacity for the task, ie, have experts ("Monitors")
trained in detecting physical and psychological signs of torture
and ill-treatment. The Body itself must have, or have access to,
sufficient independent lawyers, doctors, forensic specialists,
psychologists and specialists on human rights, humanitarian law,
prison systems and the police.
2. Journey to Receiving State
A Monitor should accompany every person returned
under the MOU ("returned person") throughout their journey
from the sending State to the receiving State and should go with
them to their home or, if taken to another place, to that place.
3. Accessibility to persons not in detention
(a) Before leaving a returned person at
their home or other destination, the Monitor should obtain his
or her contact details, and should obtain the contact details
of one other person of the returned person's choosing ("next
of kin") who generally has knowledge of the returned person's
movements and is willing to participate in the monitoring arrangements.
The Monitor should provide both the returned person and the next
of kin with the Implementation Body's contact details.
(b) For the first year after the person
returns, a Monitor should contact him or her, either by telephone
or in person, on a weekly basis. If the returned person is unavailable
on any occasion, the Monitor should instead contact the next of
kin.
(c) At all times, the Implementation Body
should be accessible to any returned person or next of kin who
wishes to contact it, and should report to the sending State on
any concerns raised about the person's treatment or if the person
disappears.
4. Visits to detainees
(a) When the Implementation Body becomes
aware that a returned person has been taken into detention, a
Monitor or Monitors should visit that person promptly.
(b) Thereafter, Monitors should visit all
detainees frequently and without notice (at least as frequently
as the MOU permits; Monitors should consider requesting more frequent
visits were appropriate, particularly in the early stages of detention).
(c) Monitors should conduct interviews with
detainees in private, with an interpreter if necessary.
(d) Monitoring visits should be conducted
by experts trained to detect physical and psychological signs
of torture and ill-treatment. The visiting Monitor or Monitors
should ascertain whether the detainee is being provided with adequate
accommodation, nourishment and medical treatment and is being
treated in a humane and proper manner, in accordance with internationally
accepted standards.
(e) When interviewing a detainee, a Monitor
should both encourage frank discussion and observe the detainee's
condition.
(f) Monitors should arrange for medical
examinations to take place promptly at any time if they have any
concerns over a detainee's physical or mental welfare.
(g) The Implementation Body should obtain
as much information as possible about the detainee's circumstances
of detention and treatment, including by inspection of detention
facilities, and should arrange to be informed promptly if the
detainee is moved from one place of detention to another.
5. Fair trial
In order to monitor compliance with the right
to fair trial, Monitors should have access to all court hearings,
subject to the requirements of national security.
6. SPECIFIC
ASSURANCES
Monitors should ensure that they are mindful
of any specific assurances made by the receiving State in respect
of any individual being returned, and should monitor compliance
with these assurances.
7. Reporting
(a) The Implementation Body should provide
regular frank reports to the sending State.
(b) The Implementation Body should contact
the sending State immedialtely if its observations warrant.
9 18 This does not exclude state funding as long as
there are no conditions attached to that funding. Back
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