Doc. 9117

7 June 2001

Operation of the Council of Europe Convention on the Transfer of Sentenced Persons – critical analysis and recommendations

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Tom Enright, Ireland, Group of the European People’s Party

Summary

The Council of Europe Convention on the Transfer of Sentenced Persons is without doubt a very useful instrument. Unfortunately, the procedures of the Convention are not always clear and its procedures for the transfer of prisoners are somewhat cumbersome and time-consuming. However, a number of practical and legal measures could be made to improve the situation. They should aim at facilitating and strengthening the information between states on prisoners eligible for transfer and also at taking away certain misgivings states may have about the way other states apply the Convention.

All Council of Europe member states should ratify the Convention and like-minded states are encouraged to adhere as well. The Committee of Ministers should adopt a recommendation to governments or, possibly, draw up an additional protocol to the Convention.

I.        Draft recommendation

1.        The Council of Europe Convention on the Transfer of Sentenced Persons provides for the transfer of foreign prisoners to their home countries both for their own sake and because transfer enhances rehabilitation and reintegration into society and consequently reduces recidivism.

2.        Since its entry into force in 1985 the Convention has enabled, facilitated or accelerated the repatriation of hundreds of prisoners and the Assembly considers that it is a very useful instrument in international cooperation in penal matters.

3.        Unfortunately, in practice, the Convention does not operate as smoothly as is desirable as the procedural framework for transfer laid down in the Convention is unwieldy and lacks clarity and as states often overlook the normative basis for transfer as laid down in the Convention.

4.        The result is that states do not cooperate fully in using the Convention or they seek to restrict its application.

5.        While these problems have a negative impact on the operation of the Convention they are not irremediable and there are a number of positive steps which the Council of Europe could take to overcome them.

6.        For the optimal functioning of the Convention, it is important that the largest possible number of member states and, indeed, of other countries – as it is open to accession by non-member states – become a party to the Convention.

7.        The Convention has now been ratified by an overwhelming majority of member states (40 out of 43). Nine non-member states have also adhered.

8.        In 1997 an additional protocol to the Convention was concluded which deals with persons having fled from the sentencing state and with sentenced persons subject to an expulsion or deportation order.

9.        For the reasons set out above, the Assembly recommends that the Committee of Ministers:

i.       invite those member states which have not yet done so to ratify as soon as possible the Convention on the Transfer of Sentenced Persons;

ii.       identify and actively encourage like-minded non-member states to accede to the Convention;

iii.       draw up a new recommendation to member states on the interpretation and application of the Convention with the following objectives:

      a. to streamline and to harmonise the information member states seek when processing a transfer application and to state a maximum response time to every request for information;

      b. to state clearly that the Convention is not designed to be used for the immediate release of prisoners on return to their own country;

      c. to urge Contracting States not to refuse transfers on the grounds that the prisoner might possibly benefit from earlier release in the administering state;

      d. to urge Contracting States to interpret the nationality requirement broadly and in line with the Convention's rationale;

      e. to specify a minimum threshold of sentence which must be served in total (for example, 50%), below which states can legitimately refuse a transfer, but above which states ought to facilitate a transfer;

      f. to issue a clear statement that the Convention applies to all mentally disordered prisoners and that their transfer should be a matter of highest priority and to recommend that all States Parties implement Article 9 of the Convention, which gives states discretion regarding how to continue the treatment of mentally disturbed prisoners after transfer;

      g. to strongly discourage the blocking of transfers because of outstanding fines;

iv.       explore the possibility of drawing up a new additional protocol to the Convention in which some of the recommendations under sub–paragraph iii. above would be included;

v.       organise a series of training seminars at which States Parties could present their domestic transfer procedures, exchange information and explore how to improve their systems and make them more transparent.

II.       Explanatory memorandum        by Mr Enright, Rapporteur

A.       Foreword

1. The Council of Europe Convention on the Transfer of Sentenced Persons has been in operation since 1983 and hundreds of prisoners have been repatriated to their own countries under its provisions in the interim. However, it is increasingly recognised that the Convention does not operate as efficiently or as broadly as it should. As a result, a renewed scrutiny is necessary.

2. In May 2000 I tabled a motion calling on the Committee of Ministers to consider ways and means of facilitating the speedy and humanitarian application of the Convention on the Transfer of Sentenced Persons by member states. It was signed by representatives of ten member States. The motion was referred to the Committee on Legal Affairs and Human Rights which appointed me as Rapporteur to prepare a report on the operation of the Transfer Convention by Member States and the need for improvements in its operation.

3. In the preparation of this report, I consulted extensively with the European Group for Prisoners Abroad (EGPA), a pan-European group of national, non-governmental and statutory organisations which supports its citizens imprisoned outside their country of residence. EGPA has almost ten years of experience in monitoring the operation of the Transfer Convention and advocating improvements in its operation by Member States.

4. In addition to conducting research among its member organisations to assist in the preparation of the report, EGPA delegates attended a meeting of the Committee on Legal Affairs and Human Rights in January 2001 in order to give a brief overview of the pertinent problems in the operation of the Transfer Convention. At that meeting, EGPA circulated a questionnaire to the members of the Committee on their countries’ experience of the operation of the Convention which the Committee approved with slight modifications.1

5. The report is also based on an analysis of Member States’ descriptions of their operation of the Transfer Convention. This information is contained in the Convention on the Transfer of Sentenced Persons - Guide To Procedures, published in 2000 by the Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC), the Council of Europe intergovernmental committee of experts charged with monitoring the operation of the Transfer Convention.2

6. The report is supplemented by a series of case-studies which illustrate the problems identified in the body of the report. The case-studies, which were provided by EGPA member organisations, are contained in Appendix 1.

B.       General Overview of the Convention

7. The 1983 Convention on the Transfer of Sentenced Persons3 was established to provide a procedural framework for the transfer of prisoners from the State where the sentence was passed (the "sentencing" State) to the home state of the prisoner (the "administering" State). Once a transfer takes place under the Convention, the prisoner serves out the remainder of his/her sentence in a prison in his/her own country.

8. The Convention lays down a series of conditions which must be fulfilled before a transfer can be effected: the prisoner must be a national of the administering State; the judgement must be final; the prisoner must have at least six months of his/her sentence left to serve; the offence for which the prisoner was imprisoned must also be an offence in the administering State; the prisoner must consent to the transfer; and the sentencing and administering States must consent to the transfer.4

9. In order to verify that each of these conditions is fulfilled, the sentencing and administering states must pass a large amount of paperwork between the two jurisdictions. Most of this paperwork consists of an exchange of information about the law relating to the offence in both jurisdictions and information on how the sentence has been enforced to date. Information is also provided about the prisoner's nationality and verification of his/her consent to transfer.5

10. Under the Convention, a transferred sentence can be enforced by the administering State in one of two ways: the administering State can opt to continue to enforce the sentence as it was handed down in the sentencing State; or the administering State can convert the original sentence into one provided for by its own laws for the crime in question. It must inform the sentencing State during the exchange of information as to which of these procedures it will follow. Once the prisoner is transferred, the sentencing State relinquishes its jurisdiction over the enforcement of the sentence in favour of that the administering State.6

11. In addition to simply providing a procedural framework for the transfer of prisoners, the Convention provides a normative basis, which is rooted in agreed "best" penal practice as well as humanitarian considerations. Thus the preamble to the Convention refers to transfer as furthering "the ends of justice and social rehabilitation of sentenced persons" and states that foreign prisoners "should be given the opportunity to serve their sentences in their own society."

12. The Explanatory Report on the Convention elaborates on these concerns.7 It explains how, by the time the Convention was being drafted, developments in penal policy had come to lay a greater emphasis upon the rehabilitation and social reintegration of offenders. It was widely perceived that foreign prisoners have a reduced ability to participate in rehabilitative programmes for addressing offending behaviour, or gain education or training to avoid relapsing into criminal behaviour on release due to language, social and cultural difficulties. It was also identified that programmes for their reintegration into society such as the provision of support services, half-way houses, supervision and employment are largely redundant in the case of foreign prisoners because they generally return to their own country on release, either voluntarily on by being deported at the end of sentence. Therefore, from a penal policy point of view, it was considered better to transfer prisoners who so desired to their home country.

13. The Explanatory Report also explains that policy-makers had come to recognise that foreign prisoners experience added difficulties with imprisonment in terms of isolation because of language and cultural barriers, lack of contact with family and friends and occasionally, racism. It was thought that "the repatriation of sentenced persons may therefore be in the best interests of the prisoners as well as of the governments concerned."8

14. While providing an international legal framework for the transfer of prisoners between States, the Convention does not create an obligation for States to transfer prisoners nor a right for prisoners to transfer. It does however place an obligation of co-operation on States parties, as is evident from Article 2, which states that "the parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention".

15. Therefore the convention imposes a clear obligation on member states (co-operation) for a commonly defined goal (the transfer of prisoners to their home state). This normative basis laid down by the convention suggests that co-operation was intended to be motivated by the common goal, as opposed to the individual interests of the States Parties. Indeed with regard to international treaties whose objectives are "purely humanitarian and civilising" the International Court of Justice has emphasised that parties generally have no interest of their own: "[t]hey merely have a common interest, namely the accomplishment of those high purposes which are the raison d’être of the Convention. Consequently, in a Convention of this type one cannot speak of individual advantages or disadvantages to states...."9

16. Unfortunately, as some of the following sections demonstrate, certain States Parties sometimes appear not to be guided by the common interest laid down in the Convention but by their own separately defined penal goals; this means that they do not co-operate with other States in accordance with the provisions of the Convention. And even where States do co-operate with each other, the procedures for transfer laid down in the Convention are problematic, in that they are cumbersome and bureaucratic and exclude groups of prisoners from the possibility of transferring. These problems are outlined in the following sections and recommendations are made about how they might usefully be addressed by the Council of Europe.

C.       Delays

17. One of the primary purposes of the Transfer Convention is to provide a transfer procedure which is simple as well as expeditious. According to the Explanatory Report, it was developed partly in response to the inadequacy of the Convention on the International Validity of Criminal Judgements in effecting transfers: whereas the latter convention did not provide a system for the rapid transfer of foreign prisoners, the Transfer Convention system was designed "to provide a simple, speedy and flexible mechanism for the repatriation of prisoners."10

18. However, in practice, the Convention is not operated in a simple, speedy or flexible manner. The experience of statutory organisations and NGOs working in the area has been that its operation is bureaucratic, slow and inflexible to the point that transfer applications cannot generally be expedited even in humanitarian cases.

19. In research carried out for EGPA in 2000 and updated in 2001,11 organisations in five out of six countries examined complained of delays in processing transfer applications.12 The general time taken to effect either an inward or outward transfer was between one and two and a half years.13 This is significantly more time than envisaged in the Convention: the rule that prisoners must have at least six months of their sentence left to serve in order to apply for a transfer suggests that the application process should take no more than six months. The same five organisations complained of the rigidity of the transfer process, which cannot generally be fast-tracked even in extreme humanitarian situations. This inflexibility appears to be contrary to the specification in Article 3.2 that in exceptional cases Parties may agree to a transfer even if the time left to serve is less than six months.

20. The delays in processing transfer applications by States parties are caused by a number of factors. The first cause of delay relates to the sheer quantity of documentation which must be passed back and forth between the administering and sentencing State in support of every application.14 Although the documentation specified in the Convention is needed in order to verify whether the preconditions for transfer are fulfilled, some States require additional information beyond what is specified in the Convention, for example, information on early release procedures in the administering State,15 verification of close family ties in addition to proof of nationality,16 and certification of all documentation as opposed to simply the original judgement and law on which it was based, as is required by the Convention.17 It is difficult to justify this practice, as all the information necessary to make a decision on transfer is already required under the Convention procedure. The Council of Europe should make a recommendation urging States Parties to streamline and harmonise the information they seek: documentation should be confined to that specified in the Transfer Convention and discretionary documents should be provided only at the point of or after the transfer.

21. The second cause of delay is internal State and prison bureaucracy. Research conducted by EGPA shows that prisoners' expressions of interest in transfer which originate in the prison often do not leave the prison.18 Information regularly becomes "mislaid" in transit between the various branches of the administering body charged with processing the applications. The response time to requests for information between branches tends to be slow. And the administering body does not always provide the requisite documentation to the other State and consequently this has to be requested a number of times. All of these factors lead to long delays. This level of internal State bureaucracy suggests that governments do not prioritise prisoner transfer, either in terms of staff or budget allocation. The Council of Europe recognised and tried to redress this problem in Recommendation No. R(92)18 by urging States to "proceed diligently and urgently in processing requests for transfer".19 However, since this recommendation has not led to improved practice, the Council of Europe needs to make a more specific recommendation, stipulating a desired response time to every request for information. Moreover, that response time should be amenable to reduction in cases where humanitarian circumstances require a quick transfer.

22. The third cause of delay relates to the fact that the branches of government involved in the transfer application process differ in each State party.20 As a consequence of the myriad of actors involved in the process, a State cannot apply the same transfer procedures to all other countries with which it deals but requires a unique procedure for each country. In practice this means that it is difficult for States to develop an institutional expertise of co-operation in the field of transfer.

23. The Committee of Ministers tried to tackle this problem in Recommendation No. R(92)18 by instructing the Secretary General of the Council of Europe to keep an updated list of contact details of the people responsible in each party for the operation of the Convention, and recommending Member States to encourage direct contacts between national administrations through the informal channels provided in the list.21 However, as the speed of the transfer process has not improved since the recommendation was made, it has to be questioned whether the development of a system of informal contacts is enough. It is suggested that the Council of Europe organise a series of training seminars at which States Parties present their domestic transfer procedures, exchange information and explore how to improve their systems and make them more transparent.

D.       Differences in sentence or sentence administration

24. Since the Transfer Convention came into operation, EGPA member organisations have noted a trend on the part of some sentencing States to refuse transfer if there is a possibility that the prisoner will serve a lesser time in his/her home State than he/she would have in the sentencing State; the existence of such a trend was confirmed in EGPA's recent research.22 The possibility of a transferred prisoner serving a lesser term regularly arises under the Convention and indeed, is expressly provided for by the Convention.

25. As was already stated, the Convention offers two legal possibilities to administering States in terms of the enforcement of the sentence: the sentence may be continued as it was handed down by the sentencing State or it may be converted by the administering State into one recognised by its own laws for the crime in question. Where the administering State practices the conversion option, there is always the possibility that its own sentence will be shorter than that originally handed down by the sentencing State. Where the administering State practices the continuation option, it is less likely though still possible that the sentence will be shortened. This is because the administering State may have to adapt the original sentence to conform with its own domestic law if, for example, a maximum term in the sentencing State exceeds the maximum term permissible under its own legislation.23 Therefore under both systems (conversion of sentence or continued enforcement of sentence with the prospect of adaptation) there is always the possibility that the prisoner will serve a lesser time in his/her home State.24

26. Moreover the possibility of a reduced prison term may be compounded by differences in sentence administration practice between the two States. The Convention provides that sentence enforcement is governed by the law of the administering State and that State alone shall take all appropriate decisions.25 This means that decisions on remission of sentence, parole, early release etc. are all governed by the rules of the administering State. Since in all likelihood, sentence administration rules will differ between the two States, there exists the possibility that the administering State will have more lenient rules with greater possibility of early release for prisoners.

27. The fact that the Convention gives administering State discretion as to what sentence to enforce (its own or the sentencing State's) and how to enforce it (in terms of its own sentence administration rules), suggests that the Convention recognises and endorses the reality that different States have different approaches to similar crimes. The Convention does not seek to harmonise the laws or sentencing policies of States Parties (a task which would be impossible in any event) but rather accepts the divergences as given and superimposes upon them an overriding goal: the transfer of prisoners to their home State for rehabilitative and humanitarian reasons.

28. In fact, the vast majority of States Parties would appear to accept that this common goal is more important than the question of whether a prisoner will serve out his/her exact time in any given case. In the PC-OC's questionnaire for its Guide to Procedures, States were asked which they prioritised: the purpose of contributing to the social rehabilitation of the prisoner or the purpose of ensuring the ends of justice (this latter phrase was understood to mean the enforcement of the exact sentence as originally handed down).26 Of the 26 States which responded to the question, 22 affirmed that the social rehabilitation, reintegration into society and humanitarian treatment of the prisoner is of paramount importance; only 4 States considered that the exact enforcement of the sentence was of equal or more importance.27

29. However, Parties stated objectives conflict with their practice. A further analysis of the PC-OC's Guide to Procedures shows that, when asked whether a reduction in sentence time would affect their decision to grant or refuse a transfer, 28% of States Parties said it would not lead to a refusal, 38% said it would lead to a refusal, while 34% did not comment. Of the majority which stated that a reduction of sentence would lead to a refusal, 75% said this would occur only where the prisoner would be immediately released or gain a significant reduction in sentence, while 15% indicated that a refusal would occur as a result of a reduction in sentence per se. There therefore appears to be a gradation of response to the possibility of early release: response to immediate release, response to a significant sentence reduction and response to any sentence reduction whatsoever.

30. It can be readily appreciated that States do not wish to transfer prisoners who will be immediately released on return to their own countries. Indeed the Transfer Convention seems to preclude this possibility, since the aim of the Convention is to allow the sentenced person to continue serving the sentence in his/her own country; if no sentence is to be served in the administering State there is no ground for the Convention to be applied. The Council of Europe could reassure States on this point by stating that the Convention is not designed to be used for the immediate release of prisoners on return to their own country.

31. As regards refusing a transfer where there is a likelihood of significant sentence reduction, the question of what constitutes a "significant" reduction arises. In the Guide to Procedures, the descriptions of the various States' early release procedures demonstrate that there are serious variations in approach. An analysis of the early release procedures for determinate sentences shows that State practice tends to group around several different regimes: early release at the 1/2 point of sentence, at the 2/3 point, and either the 1/2 point or the 2/3 point depending on behaviour, or at various other points of the sentence (such as 3/4, 5/6 or no early release whatsoever).28 This means that the difference in time to serve as a result of transfer ranges from no reduction in time (or even an increase in time) to a 50% reduction; and any point along this continuum is open to being labelled “significant” by States for the purposes of refusing transfer. In order to minimise this subjective practice by States, the Council of Europe should issue a recommendation specifying a minimum threshold of sentence which must be served in total (e.g. 50%), below which States can legitimately refuse a transfer, but above which States ought to facilitate the transfer.

32. Finally, as for refusing a transfer where there is a possibility of early release per se, there appears to be no justification for this. States can never guarantee that a prisoner will serve a specified amount of time, even when implementing a sentence handed down in their own jurisdiction: this is because sentence administration practices vary over time and much depends on the behaviour of the individual prisoner. Therefore, for a sentencing State to demand such guarantees of an administering State and to make transfer conditional on such guarantees, is unreasonable. It is also unacceptable, as it prioritises States' individual penal concerns above the common (agreed) concerns underlying the Transfer Convention in every case. Therefore the Council of Europe should issue a recommendation to States urging them not to refuse transfers on the grounds that the prisoner might possibly benefit from earlier release in the administering State.

E.       Mentally disturbed offenders

33. Prisoners whose crimes were committed while they were mentally disturbed are perceived to be in a rather ambiguous position under the Transfer Convention. The aim of the Convention is to enable foreigners who are deprived of their liberty as a result of the commission of a crime to serve their sentences within their own society. However, not all mentally disturbed prisoners who commit crimes are sentenced - in the usual sense of the word - as a punishment following conviction.

34. There appear to be two general approaches taken to the treatment of mentally disturbed offenders in domestic legal systems (and occasionally a legal system will use a combination of the two): a) the mentally disturbed offender is convicted of the crime, but as a result of his/her diminished responsibility or total irresponsibility is sentenced to serve an indeterminate period in a faculty for mentally disturbed offenders;29 b) the mentally disturbed offender is acquitted of the crime as he/she is not considered criminally responsible, or he/she is unfit to stand trial, but because he/she is a danger to the public the court orders his/her removal to a faculty for mentally disturbed offenders for an indeterminate period.30 Some States Parties consider that the transfer convention does not apply to the latter prisoner.31

35. However this is a misapprehension that needs to be clarified. The Transfer Convention applies to mentally disturbed offenders, whether they are convicted or not: Article 1 defines a sentence as "any punishment or measure involving deprivation of liberty ordered by a court for a limited or unlimited period of time on account of a criminal offence." Therefore although the deprivation of liberty must result from a criminal offence and must be ordered by a court, it need not necessarily follow a conviction for that offence. The Council of Europe could rectify this misapprehension by way of a clear statement that the Transfer Convention applies to all mentally disturbed prisoners.

36. The fact that the Transfer Convention is intended to apply to all mentally disturbed offenders is further demonstrated by Article 9.4, which pre-empts the problem of trying to convert an acquittal into a conviction (or vice versa) or reconcile two incompatible sentences for the purposes of continued enforcement. That article states:

Unfortunately, judging by the information provided to the PC-OC by States Parties, no State has made this declaration. This means that mentally disturbed offenders who are imprisoned under one regime are effectively barred from transferring to any State which solely practices the alternative regime.

37. Although mentally disturbed prisoners constitute a small minority of prisoners who wish to transfer, and indeed most States Parties have, as yet, had no experience of processing applications from such prisoners,32 the transfer of mentally disturbed prisoners remains an important issue. This is because mentally disturbed offenders are among the most vulnerable of prisoners and are arguably most in need of the enhanced rehabilitation, family support and reintegration into society that transfer provides. For this reason and in order to make the Transfer Convention applicable to all mentally disturbed prisoners, the Council of Europe should encourage all States to make the necessary declaration under Article 9. This would further clarify the perceived ambiguity surrounding the Convention and prevent differences in national legislation in regard to mentally disturbed prisoners from blocking their transfer home.

38. There are two further problems with the transfer of mentally disturbed offenders. First, due to the discretionary nature of their imprisonment, release procedures are subjective - depending as they do on the prisoner's mental health and improvements in his/her condition. Therefore the problem outlined in the last section, of a lack of trust in the administering State's release procedures leading to a refusal by the sentencing State, could be heightened in the case of mentally disturbed offenders.33 Secondly, States whose secure mental hospitals are already overcrowded are unlikely to agree to inward transfers of mentally disturbed offenders.34 In order to overcome both these problems, the Council of Europe might usefully affirm that the transfer of mentally disturbed offenders is a matter of priority and that all States should facilitate and not hinder their transfer.

F.       Customs fines

39. Prisoner transfer primarily deals with sanctions which deprive the individual of his/her liberty. Article 1 of the Transfer Convention defines “sentences” as “any punishment or measure involving deprivation of liberty”. This causes problems when pecuniary sanctions are imposed concurrently with a sanction of imprisonment: a prisoner must pay the fine before he/she can transfer and consequently where he cannot pay, he/she cannot transfer.

40. This occurs most commonly in regard to drugs offences in France.35 Drugs offenders are convicted under the Code de la Santé Publique and under the Code des Douanes. A term of imprisonment is imposed on the basis of the former, while huge fines – related to the street value of the drugs – are imposed because of the customs offence. It goes without saying that most of the drugs offenders (“mules”) are unable to pay these fines. Once the sentence has been served, a further period of imprisonment known as contrainte par corps, is imposed as a coercive measure aimed at eliciting payment of the fines. A serious examination of the prisoner’s financial capacity to pay the fine will not take place until contrainte par corps is underway. The result is very often that the enforcement of the contrainte par corps transpires to be unjustified (as a coercive measure) while transfer is delayed all the while.

41. In Recommendation R(92)18, the Committee of Ministers advised that unpaid fines should not be used as a means to prevent transfers: Section 1.f recommends States “to take steps enabling them not to have to refuse a transfer on the sole grounds that fines imposed on the sentenced person in connection with his/her sentence remain unsatisfied or that contrainte par corps has been imposed.” However it is not clear what, if any steps have been taken to give effect to this recommendation; certainly the transfer of prisoners convicted of drugs offences in France continues to be blocked.

42. In attempting to overcome this problem, two possibilities appear to be available to the Council of Europe. The first is to issue another recommendation on the same subject, possibly using stronger language than in R(92)18. The second is to explore the possibility of extending the scope of the Transfer Convention to include pecuniary penalties by way of an optional protocol. Such a move would be in line, not only with recent trends in Council of Europe policy on the transfer of pecuniary sanctions,36 but also with the Transfer Convention’s immediate predecessor – the Convention on the International Validity of Criminal Judgements which covers fines, confiscation of the proceeds of crime etc. The transfer of pecuniary penalties is also provided for in other transfer systems, such as that operated by the Organisation Communale Africaine et Malgache. Therefore there is a wealth of precedent to examine should the Council of Europe decide to explore extending the Convention to include pecuniary sanctions.

G.       Nationality

43. The Transfer Convention requires that the prisoner seeking to be transferred is a national of the administering State. This reflects the essential ethos of the Convention that prisoners should be allowed to serve their sentences within their own society. However, Article 3(1) which establishes the nationality requirement, is intended to be read in conjunction with Article 3(4) which grants contracting States the possibility to define, by means of a Declaration, the term "national". According to the Explanatory Report, this possibility "is to be interpreted in a wide sense: the provision is intended to enable Contracting States to extend the application of the Convention to persons other than "nationals" within the strict meaning of their nationality legislation as, for instance, stateless persons or citizens of other States who have established roots in the country through permanent residence."37

44. Therefore the term "nationality" in the Convention is to be understood as a generic one, encompassing notions of attachment and permanence to a country, but without being confined to the strict legal definition of the term. And in fact, many States do practice a broad interpretation of the term. The Netherlands, for example, requires nationality or sole residence and may even agree to a transfer in the absence of a residence permit if the prisoner has close ties with the Dutch community 38

45. Conversely however, some States confine themselves to the narrow legal understanding of the term "nationality", while appending the broader notions of attachment to the definition as additional requirements. Ireland, for instance, requires the prisoner to be an Irish national and in addition, to have close family ties, social connections and prior permanent residence in Ireland.39 This interpretation of the nationality requirement prevents many prisoners, who have bona fide links with their home country, from transferring. Ironically the same prisoner who is refused transfer by the home State because his/her links with that State are not strong enough, is liable to be issued with a deportation order by the sentencing State because he/she is a foreigner. Where this happens, he/she will be deported at the end of his/her sentence and released, without preparation or supervision, into his/her home State. From a public safety point of view alone, this practice is worrying.

46. The Council of Europe should issue a recommendation urging States Parties to interpret the nationality requirement broadly and humanely in line with the rationale of the Transfer Convention which is to promote the prisoner's rehabilitation and reintegration into the society where he/she will eventually reside upon release.

H.       Encouraging ratification of the Convention

47. The Convention on the Transfer of Sentenced Persons has now been ratified by 40 of the 43 Council of Europe member States (Moldova, San Marino and Slovakia are the only States which have not ratified). Although this is certainly a significant number the effectiveness of the Convention very much depends on the number of ratifications. The remaining Council of Europe member States should therefore be very much encouraged to become parties to it.

48. In 1997 an additional protocol to the Convention was concluded which deals with persons having fled from the sentencing State and with sentenced persons subjected to an expulsion or deportation order. This additional protocol has now been ratified by 32 member States.

49. Several recommendations of the Committee of Ministers – which I already mentioned before – aim at facilitating the application of the Convention.

50. Unlike the other conventions on international co-operation in criminal matters prepared within the framework of the Council of Europe, the Transfer Convention does not carry the word "European" in its title. According to the Explanatory Report, this reflects the draftsmen's opinion that the instrument should be open also to like-minded democratic States outside Europe.40 Thus Article 19 states that the Committee of Ministers, after consulting the States Parties, may invite any State not a member of the Council of Europe to accede to the Convention. Nine non-member States have acceded to date.41

51. However, there are very many European prisoners in States which are not party to the Convention. While some signatory States have bi-lateral transfer treaties with non-signatory States (and these operate to varying degrees of efficiency) others have no bilateral transfer arrangements. Prisoners in these latter States have no possibility of transferring home. Moreover, given global trends towards an increase in foreign prison populations generally, there are likely to be more and more of these prisoners in the future. The Council of Europe should seek to extend the reach of the Transfer Convention to as many of these prisoners as possible.

52. While it is acknowledged that not all States would be suitable candidates for accession to the Transfer Convention, because their criminal justice and prison regimes could not be described as "like-minded", and because of the danger of reinforcing a miscarriage of justice through the transfer system, nevertheless there are many States which would be suitable for accession. The Council of Europe should identify "like-minded" States and actively encourage them to accede to the Transfer Convention.

I.       Conclusion

53. The Convention on the Transfer of Sentenced Persons is a worthwhile instrument in rationale and intent. It provides a mechanism for the transfer of foreign prisoners to their home countries both for their own sake and, because transfer enhances rehabilitation and reintegration into society and consequently reduces recidivism, for reasons of public safety. However in practice, the Convention does not operate as smoothly as is desirable. This is for two reasons. Firstly, the procedural framework for transfer laid down in the Convention is unwieldy and lacks clarity. Secondly, the normative basis for transfer as laid down in the Convention is often overlooked by States Parties, with the result that they do not co-operate fully in using the Convention or they seek to restrict its application. While these problems impact negatively on the operation of the Transfer Convention, they are not irremediable; in fact there are a number of positive steps which the Council of Europe could take to overcome them.

54. For these reasons the Assembly should recommend that the Committee of Ministers of the Council of Europe:

a. invite those member States which have not yet done so to ratify as soon as possible the Convention on the Transfer of Sentenced Persons;

b. identify an actively encourage like-minded member States to accede to the Convention;

c. draw up a new Recommendation to member States on the interpretation and application of the Convention with the following objectives:

d. explore the possibility of drawing up a new additional protocol to the Convention in which some of the recommendations under sub–paragraph c. above would be included as well as the possibility of extending the scope of the Convention to include pecuniary penalties;

e. organise a series of training seminars at which States Parties could present their domestic transfer procedures, exchange information and explore how to improve their systems and make them more transparent.

APPENDIX I

case-studies42

Delays

X applied to transfer from England to Ireland in February 1997. Although his case was not particularly complex, his application was delayed at every stage of the procedure. Despite repeated requests for information from the authorities, he was not provided with a satisfactory explanation for the delays. In fact, it was suggested at one stage that his file had been "mislaid". X was finally transferred in August 2000, 42 months after he applied.

Y is a Spanish national who was sentenced in the UK and applied for a transfer to Spain. He has long term health problems and is on kidney dialysis which necessitates regular hospital appointments and frequent emergency admissions. There is the possibility that he will die while serving his sentence in England without seeing his family again (they cannot afford to visit). Y speaks no English, has no friends or family living in England and is isolated within the prison because he has to remain in the hospital wing where there is a quick turnover of prisoners. He applied for a transfer two years ago but his application is still being “processed”. The issues delaying Y’s application are common: administrative delays, the need for translation of documents, difficulties in reaching an agreement for the conversion of his sentence etc. However, what is worrying in Y’s case, is that no apparent effort is being made to fast track his application, despite the obvious humanitarian concerns of his case.

Customs fines

W is serving a sentence of 8 years in France. He has a customs fine of £3.1 million. W wishes to transfer to the UK, but will be unable to do so until his fine is settled. As he unlikely to be able to pay his fine during his sentence, he will enter contrainte par corps at the end of his sentence, whereby he will have to serve a maximum of two additional years imprisonment in lieu of payment

Restrictive interpretations of nationality

S applied for a transfer from England to Ireland. He was an Irish national who had lived most of his life in England. His immediate family (parents and siblings) were living in England, although his extended family (grandparents, uncles, aunts etc.), lived in Ireland and supported his application for a transfer to Ireland. The Irish authorities refused his application on the basis that his links with England were greater than his links with Ireland. Ironically, S was then issued with a deportation order by the English authorities – a measure taken against "foreign" nationals.

Sentence differentials and different sentence administration practices

Z is a Dutch national who was sentenced to 7 years imprisonment in the UK in March 1998. He is a divorced man who, before his arrest, had been in regular contact with his children and was living with a new partner. Z was also the main support for his parents who looked after Z’s mentally handicapped brother despite both suffering from ill-health. Z applied for a transfer immediately after his conviction, essentially to maintain contact with his parents and children. His application was refused by the UK authorities on the basis of length of sentence. The differences in the maximum penalties in the UK and Holland, along with different remission rates, meant that Z would have been released 10 months earlier if he were transferred to Holland. Both of Z’s parents have subsequently died and his brother has been placed in residential care. Z remains in prison in the UK.

F was 15 when he committed his crime. He received an indeterminate sentence of five years to life imprisonment and is detained in a juvenile facility in New York. He applied for a transfer to Ireland, where most of his family are located and where he lived until he was 13. However F's transfer application has been rejected for two reasons: 1) juveniles are not allowed to transfer under New York state legislation and 2) no prisoner of any age is allowed to transfer under the state legislation if they are serving an indeterminate sentence with a maximum term of life imprisonment. This double rule serves to block transfers in the two situations where sentences and sentence administration rules tend to differ most between jurisdictions, namely, sentences for juveniles and life sentences. As a result, F has no possibility of transferring home.

Mentally disordered prisoners

P is an Irish prisoner who was convicted under criminal insanity legislation to a secure mental hospital in the UK. He wished to transfer to a secure mental hospital in Ireland in order to be treated within his own culture and close to his family. However, owing to differences in criminal insanity legislation between the two jurisdictions, there was no equivalent to his crime in Irish legislation. This meant that his English sentence could neither be continued nor converted into one recognised by Irish law, as the transfer convention requires. And there was one further problem: Ireland’s only secure mental hospital refused to accept any transferred prisoners due to lack of space. P eventually gave up trying to get a transfer and is still serving his sentence in England.

Prisoners in states where there are no transfer options

M was a British national who was imprisoned in Cuba for drug trafficking on the flimsiest of circumstantial evidence. While in prison, she suffered from a series of kidney and stomach infections, for which she could not get medication, and became seriously malnourished. Owing to the distance and expense of travelling from the UK to Cuba, her family could not visit her. Because Cuba is not party to the Council of Europe transfer convention, and there is currently no bi-lateral transfer treaty between the UK and Cuba, M had no possibility of transferring home. Fortunately, owing to the lack of evidence against her and a high-profile public campaign for her release, M was freed by the Cuban authorities after 2 years imprisonment.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 8770, Reference No. 2518 of 30 June 2000

Draft recommendation unanimously adopted by the committee on 5 June 2001

Members of the Committee: Mr Jansson (Chairperson), Mr Magnusson, Mr Frunda, Mrs Gülek (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andreoli, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Bartumeu Cassany, Mr Bindig, Mr Bordas, Mr Brecj, Mr Bruce, Mr Bulavinov, Mr Clerfayt, Mr Contestabile, Mr Demetriou, Mr Dimas, Mr Enright, Mrs Err, Mr Evangelisti, Mr Floros, Mrs Frimansdóttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hadjiyeva, Mr Holovaty, Mr Irtemçelik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord Kirkhill, Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroupa, Mrs Krzyzanowska, Mr Lacão, Mr Lento, Ms Libane, Mr Lintner, Mr Lippelt, Mr Loutfi, Mrs Markovic-Dimova, Mr Marty, Mr McNamara, Mr Michel (alternate: Mr Hunault), Mr Moeller, Mrs Nabholz-Haidegger, Mr Olteanu, Mr Pavlov, Mr Pollo, Mrs Postoica, Mrs Pourtaud (alterntate: Mr Dreyfus-Schmidt), Mr Rodeghiero, Mrs Roudy, Mr Rusytamyan, Mr Shaklein, Mr Simonsen, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica (alternate: Mr Coifan), Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Wilkinson (alternate: Lord Rotherwick), Mrs Wohlwend, Mr Wojcik, Mrs Wurm

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Mr Plate, Ms Coin, Ms Kleinsorge, Mr Cupina


1 This questionnaire was sent to all national parliamentary delegations to the Parliamentary Assembly of the 43 member States of the Council of Europe and, in addition, to the delegations of Bosnia and Herzegovina and the Federal Republic of Yugoslavia, two countries which aspire to adhere soon to the Council of Europe. To date, more than half of the delegations have answered and further replies are coming in. They will be processed in an addendum to this report, which, to a certain extent, is already taking them into account.

2 A Guide to Procedures, PC-OC/ Inf 5 Rev. Transfer, Strasbourg, 19 September 2000.

3 Council of Europe, European Treaties ETS No. 112. Hereafter referred to as the Transfer Convention.

4 Article 3.

5 Article 6.

6 Article 9.

7 Council of Europe, Explanatory Report on the Convention on the Transfer of Sentenced Persons, Strasbourg 1983, para. 9, p. 6&7.

8 Para 9, p.7.

9 See Genocide Convention Advisory Opinion, ICJ Reports, 1951, 15, quoted from Treaty-making in the Council of Europe, by Jörg Polakiewicz, Council of Europe Publishing, 1999.

10 Para. 8, p. 6.

11 The Irish Commission for Prisoners Overseas, Transfer of Sentenced Persons, A Human Right for Prisoner and Their Families: Trends in Irish, British and Global Practice, 2000. The conclusions of this report were reaffirmed by research conducted among EGPA members in early 2001.

12 Regular delays were reported in Spain, Germany, the UK, Ireland and the Netherlands. Sweden was reported not to experience delays.

13 The general speed of transfer applications was reported as follows: Spain > 11/2 years; Germany > 11/2 years; the UK > 1 year; the Netherlands > 1 year; Ireland > 2 years; Sweden < 6 months.

14 Thus the sentencing state is required to provide: the name, date and place of birth of the sentenced person, his address in the administering state, a statement of the facts upon which the sentence was based, the nature, duration and date of commencement of the sentence, a certified copy of the judgement and the law on which it is based, a statement indicating how much of the sentence has already been served, a declaration containing the prisoner’s consent and whenever appropriate, any medical or social reports etc. on the prisoner. The administering state, in return is obliged to provide: a statement indicating that the sentenced person is a national of that state, a copy of the relevant law of its state which shows that the crime for which the person was sentenced is also a crime in the administering state, and a statement on whether continued enforcement or conversion of sentence is practised by the administering state.

15 See Section D, infra.

16 See Section G, infra.

17 From the experience of EGPA member organisations, this appears to be a common practice.

18 See Ft note 10, supra.

19 1.b.

20 For example: the procedure in most countries involves both judicial and administrative branches of government, whereas the procedure in a minority of States parties is confined to the administrative branch; in some States, the ultimate decision is taken by officials in the civil service, while in others it is taken by a government minister or a committee of ministers; the requisite government department in some states is the Ministry for Justice while in others it is the Ministry for the Interior; States with federal systems have two layers of bureaucracy, at the State and the federal level; and some states organise the physical transfer of the prisoner on a bi-lateral basis while others use the intermediary of Interpol.

21 Recommendation No. R(92)18 of the Committee of Ministers to Member States Concerning the Practical Application of the Convention on the Transfer of Sentenced Persons, 1.i & 2.a.

22 See Ft note 10, supra.

23 Article 10.2.

24 Sentencing States can minimise the chances of a reduced sentence by making a declaration under Article 3.3 of the Convention that it excludes the application of the conversion option in its relations with other parties. However, the possibility of an adaptation under the continued enforcement procedure cannot be excluded.

25 Article 9.3

26 Question I.4

27 Germany, Hungary, the UK, the US.

28 The differences in approach to indeterminate sentences such as life sentences are even more marked.

29 From the Guide to Procedures, this would appear to be the case in Austria, Germany, Italy, the Netherlands, Slovakia and Sweden, Trinidad and Tobago. From EGPA experience, this is also the case in Ireland.

30 This would appear to be the case in Andorra, Bulgaria, Germany, Greece, Italy, Lithuania, Luxembourg, Portugal, Slovakia, Switzerland, Turkey, Trinidad and Tobago

31 Italy: “Where no sentence was imposed because of the mental situation of the defendant who was therefore considered not criminally liable, no transfer seems possible.”; Lithuania: “Mentally disturbed people even if they commit a crime, cannot be sentenced, and that is why their transfer under the 1983 Convention on the Transfer of Sentenced Persons is impossible.”; and Luxembourg: “Under the legislation in force, the State Prosecutor’s Office, which is responsible for the enforcement of sentences, is not empowered to take coercive measures against an offender not considered to be criminally responsible, either abroad or at national level.”

32 In their responses to the PC-OC on their experience of the transfer of mentally ill offenders, 16 States said that they had little or no experience.

33 In its submission to the PC-OC, Belgium identified this as reason for refusing to transfer foreign mentally disturbed prisoners from Belgium to their home countries.

34 In its submission to the PC-OC, Portugal identified this as a potential reason for refusing inward transfers. EGPA is aware that a similar concern was voiced by Ireland in the past, although the position should be clarified by the outcome of the first formal application for transfer of a mentally disturbed offender to Ireland, which is currently being processed.

35 But pecuniary penalties exist concurrently with prison sanctions in other countries too, for example, in England the non-payment of a Confiscation Order can impede transfer.

36 For example, the Convention on Money Laundering, Search & Seizure and Confiscation of the Proceeds of Crime, ETS 141, Strasbourg, Nov 8, 1990

37 Para.20, p. 9.

38 Denmark allows prisoners with permanent residence or who have applied for asylum in Denmark to transfer if they also have sufficient connections with Denmark; Hungary requires permanent residence and strong ties; Latvia extends the term to citizens or non-citizen Stateless persons who were subjects of the former USSR; in Lithuania nationality covers citizenship; Norway requires nationality or close ties; Slovakia requires habitual residence and family and social ties; Trinidad and Tobago require nationality or close ties.

39 According to the Guide to Procedures, the United States of America and Sweden also require proof of links beyond nationality.

40 Para 11, p.7.

41 Bahamas, Canada, Chile, Costa Rica, Israel, Panama, Tonga, Trinidad-Tobago, United States.

42        Due to the limitations of EGPA’s preliminary research, the case-studies tend to focus on a small number of countries. However, indications from past and current EGPA research indicate that these problems are widespread and not confined to the countries exemplified in the case-studies.