CCPR/C/115/D/2005/2010 State party’s observations on the merits and author’s comments thereon (a) Claims under article 15 regarding retrospective punishment State party’s observations 84. Australia disagrees with the author’s argument that the protection of article 15 must extend to wherever enforcement of a sentence takes place, including where a sentence is enforced by another State in its own territory; that otherwise one State would be free to enforce retroactive penalties imposed by another State’s courts without itself violating article 15; and that this would create an incentive to “contract out” the enforcement of sentences to other States whose imprisonment of an offender could not be challenged in the second State for retroactivity. That hypothetical scenario fails to deal with the reality of the international framework for the transfer of sentenced persons. Bilateral and multilateral transfer agreements do not provide for the enforcement of sentences to be “contracted out” at the convenience of the sentencing State. 85. Australia disagrees with the author’s contention that Australia accepted “full responsibility” for the enforcement of the author’s sentence by operation of the transfer arrangement. The arrangement draws on elements of the Convention on the Transfer of Sentenced Persons of the Council of Europe, to which both countries are party. Paragraph 8 of the arrangement, which is based on article 8 (1) of the Convention, provides that the taking into custody of a prisoner by Australia has the effect of suspending the enforcement of the sentence by the United States of America. Hence, the transfer only suspends and does not terminate the enforcement of that prisoner’s sentence by the United States. Furthermore, in paragraph 9.1 of the arrangement, it is stipulated that “the competent authorities of Australia are to continue the enforcement of the sentence immediately upon the prisoner being taken into Australian custody”. The use of the word “continue” makes clear that Australia is not engaged in a separate process of enforcement for which it bears “full responsibility”. 86. In paragraph 10.1 of the arrangement, it is stipulated that “consistent with its law, the Government of Australia is to respect and maintain the legal nature and duration of the sentence as determined by the United States”. In continuing to enforce the sentence, Australia is thus not permitted to change its legal nature or duration, except insofar as the sentence would need to be adapted to avoid incompatibility with Australian law. 87. In paragraph 9.2 of the arrangement, it is stipulated that “the enforcement of the sentence in Australia is to be governed by the law of Australia and Australia alone is to be competent to take all appropriate decisions”. The use of the term “appropriate” suggests that Australia alone does not take all decisions; for instance, it cannot change the legal nature or duration of the sentence. Furthermore, in paragraph 12, which draws on articles 12 and 13 of the Convention on the Transfer of Sentenced Persons, it is stipulated that the United States alone is to have the right to decide on any application for review of the judgement or to pardon the offence. In doing so, it is thus made clear that the United States retains responsibility for convictions by military commissions and that this has not passed to Australia. 88. Finally, in paragraph 13 of the arrangement, which is based on article 14 of the Convention on the Transfer of Sentenced Persons, it is provided that Australia is to terminate the enforcement of a sentence if it is informed by the United States of “any decision or measure as a result of which the sentence ceases to be enforceable”. This shows that the United States continues to exercise responsibility for sentences and the legal review of the proceedings that led to those sentences. 30