Council of Europe / Conseil de l'Europe
F-67075 Strasbourg Cedex
Tel: +33 (0)3 88 41 20 00
Fax: +33 (0)3 88 41 27 76
E-mail: [email protected]
25 June 2001
Operation of the Council of Europe Convention on the Transfer of Sentenced Persons – critical analysis and recommendations
Social, Health and Family Affairs Committee
Rapporteur for opinion: Mrs Blanca Fernández–Capel, Spain, Group of the European People's Party
I. Conclusions of the committee
1. The Social, Health and Family Affairs Committee congratulates the rapporteur for the Committee on Legal Affairs and Human Rights on his well-documented report that highlights the progress that needs to be made in order to effectively implement the provisions laid down in the 1983 Convention on the Transfer of Sentenced Persons.
2. The committee fully agrees with the recommendations listed in the draft report and draws attention to the benefits prisoners receive from serving a prison sentence in their home country or close to their relatives and loved ones. The many disadvantages of being imprisoned in a foreign environment, far away from family and loved ones, and often denied access to valuable rehabilitation services, indicate the necessity to encourage parties to the convention to increase their efforts to eliminate the obstacles that currently result in delays in agreeing to transfer requests.
3. The various difficulties that foreign prisoners are confronted with, especially in countries where harsh prison conditions are exacerbated by language difficulties and feelings of solitude, call for a greater commitment by the parties to respect for the humanitarian and social nature of the convention. Often, serving a sentence in a foreign country is a double punishment that prevents effective rehabilitation of the prisoner, thereby highlighting the repressive nature of the prison environment.
4. The committee emphasizes the need to maintain strong links between prisoners and their loved ones. The economic and psychological difficulties that families face when relatives are imprisoned far away must be taken into consideration when deciding whether to accept or reject a transfer request. Prisoner rehabilitation is strengthened by the close presence of family and friends. Furthermore, for families with their loved ones overseas, visiting and maintaining contact puts a huge financial burden on them, which is reduced once the prisoner transfers back home.
5. It is important to protect the prisoner's right to consent to his or her transfer in order to prevent authorities in the sentencing state from getting rid of unwanted prisoners. In this context, the committee considers it important to clarify the provisions laid down in the 1997 Additional Protocol to the Convention so as to discourage any actions by the parties that are contrary to the social and humanitarian spirit of the latter.
6. The purpose of repatriation must be to allow the prisoner to keep his or her family ties, to facilitate training in his or her mother tongue, and to provide for probation and rehabilitation into society once the prisoner has served his or her sentence.
II. Explanatory Memorandum
1. Foreign Prisoners
7. Of the prison population in European countries in 1996, 26% of all prisoners in Germany, 7% of all prisoners in England and Wales (an increase of 21% since the end of 1994) and 54% of all prisoners in Switzerland were foreign nationals1. According to the British NGO, Prisoners Abroad, there are approximately 1700 British citizens in prison worldwide, of whom 49% are imprisoned for drug-related offences2. Of these 1700, 14% are women (compared with 6% in 1993).
8. Requests for transfer are limited, considering the number of people who are imprisoned abroad. According to the Irish Commission for Prisoners Overseas (ICPO), less than 10% of all Irish prisoners in England and Wales have looked or are looking for a transfer to Irish prisons3. In the United Kingdom, the Home Office is currently dealing with only 60 inward requests for transfer4.
9. Foreign prisoners are often treated as second–class prisoners, denied access to services aimed at assisting and rehabilitating them5. Attempts to resocialise the prisoner often become meaningless in an unfamiliar cultural environment.
2. Health and social effects of imprisonment abroad
2.1 Effects on relatives and loved ones
10. According to surveys carried out by Prisoners Abroad, when prisoners were asked what they considered to be the three biggest problems they faced during their imprisonment abroad, almost two-thirds considered this to be the distance from their family6. The lack of contact between prisoners and their loved ones often results in relationships being compromised. Where prisoners' families did manage to keep in contact, despite considerable difficulties, family relationships did survive.
11. The psychological effects of having a relative imprisoned abroad are often very strong, with nearly half of the families (of prisoners dealt with by Prisoners Abroad) suffering from some form of emotional problem and nearly a quarter of these suffering from depression as a result of the imprisonment of a relative7.
12. Economic considerations must also be taken into account, as foreign prisoners are dependent on relatives and loved ones for much of the material assistance (food, medical supplies, books etc.) that they receive. Nearly half of the families surveyed (by Prisoners Abroad) were in financial difficulties as a result of having to support a relative imprisoned abroad8.
2.2 Effects on Prisoners
13. One of the main difficulties that foreign prisoners often have to confront (especially in countries where prison conditions are poor) is the absence of services aimed at providing the prisoner with skills that will allow him or her to integrate into society when released. An important argument in favour of greater ease of transfer is the possibility for a sentenced person to complement his or her imprisonment with activities that serve to rehabilitate rather than to punish him or her.
14. In the case of prisoners with weak links to their home country a transfer gives them the opportunity to familiarise themselves with life in their home country before release9. Society can only benefit from prisoners being released with the knowledge and skills necessary to integrate into the outside world.
15. The benefits of a transfer become evident when prison conditions compromise the health and well being of a prisoner. This is particularly the case in developing countries that are not parties to the convention, where prisoners are subject to violence, overcrowding, poor health conditions, insect infestation and extreme climates. These exacerbate feelings of desperation and often result in extreme acts such as suicide.
3. The Additional Protocol
16. The Additional Protocol to the Convention on the Transfer of Sentenced Persons provides signatories with the possibility of transferring a prisoner without his or her consent in certain specific situations (for example, if a prisoner is to be deported upon release). The Irish Commission for Prisoners Overseas (ICPO) believes that the Additional Protocol undermines the fundamentals of the 1983 Convention (including the right to choose to be transferred or not) and does not address the administrative and logistical barriers that explain the current problems regarding the implementation of the provisions of the 1983 Convention10. The Additional Protocol makes no reference to the family ties that a prisoner who is to be deported might have with the state in which he or she is imprisoned. If the transfer of prisoners is to be a humanitarian rather than an administrative or economic act, then the sentenced person's right to consent must be respected.
III. Proposed Amendments to the draft recommendation in Doc. 9117
Amendment No. 1
In the draft recommendation, paragraph 9, replace sub-paragraph ii. by the following:
"actively encourage those non-member States which have not yet done so, particulary those in which prison conditions are recognised as poor, to accede to the Convention;"
Amendment No. 2
In the draft recommendation, paragraph 9, sub-paragraph iii., after the word "Convention" add the words "and its 1997 Additional Protocol"
Amendment No. 3
In the draft recommendation, paragraph 9, sub-paragraph iii., add the following indent:
"to urge Contracting States to give utmost consideration to the family ties and personal relationships of the prisoner when considering a transfer request."
Amendment No. 4
In the draft recommendation, paragraph 9, sub-paragraph iii., add a new indent worded as follows:
"to urge Contracting States to respect the right of consent of prisoners so as to prevent forced transfers that are contrary to the humanitarian spirit of the Convention."
Reporting committee: Committee on Legal Affairs and Human Rights (Doc. 9117)
Committee for opinion: Social, Health and Family Affairs Committee
Reference to committee: Doc. 8770, and Ref. 2518, 30.06.00
Opinion approved by the committee on 25 June 2001
Secretaries to the committee: Mr Newman, Mrs Meunier and Mrs Karanjac
1 "Transfer of Sentenced Persons"; Irish Commission for Prisoners Overseas (ICPO), 2000
2 "Annual Report, April – December 1999"; Prisoners Abroad
3 ICPO, op. cit.
4 ICPO, op. cit.
5 "Transfer of Prisoners under International Instruments and Domestic Legislation. A comparative study"; Michael Plachta (1993).
6 Briefing on the Council of Europe Convention on the Transfer of Sentenced Persons, Social, Health and Family Affairs Committee, 29 May 2001
10 ICPO, op. cit.