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Abstract
Many European countries have hundreds of foreign national offenders in their prisons. Foreign national offenders face different problems in prisons; hence, the need for their transfer to their countries of nationality to serve their sentences. All member states of the European Union are states parties to the Convention on the Transfer of Sentenced Persons, which was replaced by Council Framework Decision 2008/909/JHA. However, it is still applicable to the transfer of offenders between some European countries and also between European countries and countries outside Europe. The European Court of Human Rights has developed jurisprudence dealing with the rights of offenders who have been transferred on the basis of the Convention on the Transfer of Sentenced Persons. This jurisprudence shows, inter alia, that before an offender is transferred to serve his sentence, the authorities in the sentencing state have to consider not only their penal laws but also those of the enforcing state – hence legal pluralism. The purpose of this article is to highlight the human rights issues that the Court has dealt with under the Convention on the Transfer of Sentenced Persons. Due to the fact that the Convention on the Transfer of Sentenced Persons has been ratified by countries in Europe and outside Europe, the jurisprudence discussed below is relevant to countries from different parts of the world.
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Notes
1. For example, in see Czekalla v Portugal (Application no. 38830/97) (judgement 10 October 2002) paras 40–41 (where the offender was transferred from Portugal to serve his sentence in Germany).
2. The European Commission reports that ‘Article 28 of the Transfer of Prisoners allows Member States, on the adoption of the Framework Decision, to make a declaration indicating that, with respect to final judgments issued before a specified date (which can be no later than 5 December 2011), they will continue to apply the existing legal instruments on the transfer of sentenced persons. The date of adoption of this Framework Decisions was 27 November 2008. It appears from the information as sent to the Commission that four Member States (IE [Ireland], MT [Malta], NL [Netherlands] and PL [Poland]) have made such declarations. However, according to the latest information received by the Commission IE, MT and PL have done so after the date of adoption of this Framework Decision, i.e. 27 November 2008. In the Commission's view, these declarations are not valid and the time limitation should be removed by Member States from their existing or proposed implementing legislation forthwith.’ See Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention, COM(2014) 57 final, Brussels, 5.2.2014, para 4.7. Available at: http://db.eurocrim.org/db/en/doc/2032.pdf (accessed 13 October 2014).
3. See Plepi and others v Albania and Greece Applications nos. 11546/05, 33285/05 and 33288/05 (decision of 4 May 2010) where the Court held that ‘there is no evidence that Greek law confers on the applicants any right to be transferred to Albania and the applicants did not refer to any relevant legal provisions which would indicate the existence of such a right. Nor is there any domestic court transfer order in their favour. Accordingly, it cannot be maintained that they have any substantive right under Greek law to be transferred to their country of origin. The Court also notes that, whereas provisions of international agreements may create individual rights protected by the Convention either where the provision is directly applicable …or where the requisite domestic legislation applying it has been enacted …, the provisions of the Bilateral Agreement and the Transfer Convention confine themselves to providing the inter-State procedural framework for the transfer of sentenced persons and do not generate any individual substantive rights per se. In any event, these international instruments do not contain an obligation on the signatory States to comply with a request for transfer…. Even though the Bilateral Agreement contained grounds on which the transfer might be refused, it did not bind the Greek authorities to find in favour of the applicants' transfer requests. The Bilateral Agreement specifically excludes any such obligation to effect a transfer even if the conditions for such are satisfied.’ See pp. 8–9.
4. Csoszánszki v Sweden Application no. 22318/02 (27 June Citation2006), p. 13. In Ali Serce v Romania Application no. 35049/08 (lodged on 15 July 2008) the applicant who was serving an 18 years’ prison sentence for Murder in Romania alleged, inter alia, that ‘because he does not speak or understand Romanian he is not included in any educational program and is not allowed to perform any work, thus not being able to integrate, be re-educated or to obtain any deduction of time from his prison sentence.’ See para 9.
5. For example, in Müller v the Czech Republic Application no. 48058/09 (decision of 6 September 2011) one of the reasons given by the High Court why the offender should be transferred from Germany to serve his sentence in the Czech Republic was that he had the ‘advantages of serving the sentence in…[his] home country, where his mother tongue was spoken and where he had better possibilities of visits.’ However, the applicant contested this by arguing that ‘he had already become accustomed to a German environment, was fluent in German, was visited by people from the outside and could receive parcels without any problem. In comparison, in the Czech Republic he was in contact only with his mother, who, however, lived in Ostrava, which was more than 500 km away from his prison.’ See pp. 3–4.
6. In Soumare v. France (48/1997/832/1038) (judgement of 24 August 1998) the French government refused the applicant's transfer to serve his sentence in Mali on the basis of the prisoner transfer agreement between the two countries as he had not paid the customs fine.
7. Vrancsik v Hungary and Austria Application no. 16770/07 (decision of 11 October 2011) in which the applicant argued that ‘he was made to sign the request of transfer without knowing its contents.’ The application was dismissed because it was filed ‘outside the six-month time-limit laid down in Article 35(1) of the Convention.’ See p. 3. See also Willcox v the United Kingdom; and Hurford v the United Kingdom Applications nos. 43759/10 and 43771/12 (decision of 8 January 2013) where one of the applicants argued that he consented to his transfer from Thailand to the United Kingdom because of the appalling prison conditions in that country.
8. See Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention, COM(2014) 57 final, Brussels, 5.2.2014, para 4.1. Available at: http://db.eurocrim.org/db/en/doc/2032.pdf (accessed 13 October 2014).
9. See also Plepi and others v Albania and Greece Applications nos. 11546/05, 33285/05 and 33288/05 (decision of 4 May 2010) in which the applicants argued that ‘the failure to transfer them was an unjustifiable interference with their right to respect for family life’ (see p. 6) the Court held (at p. 9) that ‘as regards the Greek refusal to authorise the applicants' transfer to Albania, the Convention does not grant prisoners the right to choose the place of detention and that separation and distance from their family are an inevitable consequence of their detention following the exercise by the Greek State of its prerogatives in the area of criminal sanctions … ’
10. In Ali Serce v Romania Application no. 35049/08 (lodged on 15 July 2008) the applicant's application to be transferred from Romania to serve his sentence in Turkey where he would, inter alia, be able to see his children and be visited by his family who could not afford the costs involved in traveling to Romania to visit him in prison was dismissed by the Romanian courts. This is because he was likely to serve a short prison term after the transfer. The Court asked the Romanian government to answer, inter alia, the following questions: ‘Is the refusal by the Romanian authorities to authorise the transfer of the applicant to Turkey in order to serve his sentence in a Turkish prison a violation of the applicant's rights under Article 8 of the Convention? In particular, is the refusal necessary in terms of Article 8 § 2? The Government are further invited to submit information with respect to how much contact with his family (a) the applicant is permitted; and (b) he has in practice, by way of personal visits, telephone communication and other correspondence?’
11. Csoszánszki v Sweden Application no. 22318/02 (admissibility decision of 26 October 2004) p 6 where the Court held that ‘no evidence has been submitted in order to substantiate the applicant's grievance that a transfer to a Hungarian prison would involve a real risk of treatment proscribed by Article 3. The Court would add that he would be free to file an application against Hungary should he consider his treatment there to be in violation of that or any other provision of the Convention.’ For a similar holding see, Szabó v Sweden Application no. 28578/03 (decision of 26 October 2004).
12. In Carlo Caresana v United Kingdom Application no. 31541/96 (decision on admissibility 29 August 2000), p. 8 it is reported that ‘On 23 August 1996 the applicant was transferred from Wakefield Prison [in the United Kingdom] to Italy in accordance with the Convention on the Transfer of Sentenced Persons of 21 March 1983. He served his sentence first in Massa, then in Prato. He was released from prison on 5 August 1998.’
13. In Veermäe v. Finland Application 38704/03 (Decision of 15 3 2005) Finland argued that ‘The Transfer Convention was aimed at increasing international cooperation based on mutual confidence in the legal systems of other European States. This development was also in the interest of the persons against whom legal measures were taken. If the transfer of prisoners serving sentences from one European State to another required similar criminal and enforcement provisions in both countries, the objective of the Transfer Convention would be watered down and transfers would not be possible in practice.’ See pp. 9–10.
14. Thailand acceded to this Covenant on 29 October 1996.
15. Thailand acceded to this Convention on 2 October 2007.
16. See also Willcox v the United Kingdom; and Hurford v the United Kingdom Applications nos. 43759/10 and 43771/12 (decision of 8 January 2013), para 94 – 95.
17. In their joint dissenting opinion, judges Macdonald, Bernhardt, Pekkanen and Wildhaber held that although states parties to the European Convention on Human Rights should not execute sentences that were imposed as a result of an unfair trial, this does not ‘mean that sentences can only be executed if such foreign courts have acted entirely in conformity with the provisions of the Convention which is not binding for them. But there must be some effective control that the foreign court has respected those guarantees which must be considered fundamental under the European Convention.’ See Drozd and Janousek v France and Spain (Application no. 12747/87) 26 June 1992, p. 38.
18. See also Szabó v Sweden Application no. 28578/03 (decision of 27 June 2006) for similar facts relating to the sentence imposed and the conditions of transfer and similar decision by the same court.
19. See also Szabó v Sweden Application no. 28578/03 (decision of 27 June 2006) p. 9; Veermäe v. Finland Application 38704/03 (Decision of 15 3 2005), pp. 13–14; Willcox v the United Kingdom; and Hurford v the United Kingdom Applications nos. 43759/10 and 43771/12 (decision of 8 January 2013), paras 81–92.
20. The same principles were invoked by the Court in Ciok v Poland, Application no. 498/10 (decision 23 October 2012) paras 24–28. The applicant was sentenced to life imprisonment for murder in Belgium. He was transferred to serve his sentence in Poland. The Polish court converted his sentence into one of life imprisonment. Had he served his sentence in Belgium, he would have qualified to apply for conditional release after serving 10 years in prison whereas in Poland he qualified to apply for conditional release after serving 25 years. He argued that this was a violation of his right under article 5(1)(a) and the Court held, inter alia, that ‘the term of imprisonment to which the applicant was sentenced in Belgium, a life sentence, remained the same after his transfer to Poland. The Court reiterates that matters relating to early release policies including the manner of their implementation fall within the power Contracting States have in the sphere of criminal justice and penal policy … ’ see para 26. See also Giza v Poland, Application no. 1997/11 (decision of 23 October 2012) in which the Court reiterates the same principle.
21. See also Szabó v Sweden Application no. 28578/03 (decision of 27 June 2006) for similar facts relating to the sentence imposed and the conditions of transfer and similar decision by the same court.
22. See also Szabó v Sweden Application no. 28578/03 (decision of 27 June 2006), p. 11.
23. In King v The United Kingdom Application no. 9742/07 (decision of 26 January 2010) one of the factors that the Secretary of State considered in extraditing the applicant from the United Kingdom to Australia was that ‘Australia was a party to the multilateral Council of Europe Convention on the Transfer of Sentenced Persons, which was incorporated into Australian domestic law. The applicant, if convicted, would be eligible to apply for transfer. The Secretary of State was satisfied that any application for transfer he might wish to make would receive appropriate and fair consideration.’ See para 9. The applicant's argument that ‘the Australian provisions governing the transfer of prisoners were discriminatory and were applied inconsistently and arbitrarily’ (see para 7) did not bar his extradition. The European Court of Human Rights dismissed the applicant's application and hence giving the United Kingdom a green light to extradite the applicant. In Giza v Poland, Application no. 1997/11 (decision of 23 October 2012) the Polish Court approved the applicant's extradition to Belgium to stand trial for murder ‘provided that after the trial he would be returned to Poland in order to serve his sentence.’ See para 5. After his conviction he was indeed transferred to Poland to serve his twenty years’ imprisonment.
24. See Article 3 of the Extradition Treaty between Latvia and the United States of America which provides that ‘Extradition shall not be refused based on the nationality of the person sought. A person who is national of the Requested State may request to be allowed to serve in that State a sentence which has been imposed in the Requesting State. The Requesting State shall make best efforts to honor such a request pursuant to a treaty on the transfer of sentenced persons in force between the Parties. In the event that a request pursuant to a treaty on the transfer of sentenced persons cannot be honored, the Parties shall consult pursuant to Article 19 of this Treaty.’ This article is reproduced in Čalovskis v. Latvia, Application no. 22205/13 (Application lodged 28 March 2013), p. 10. See also Čalovskis v. Latvia (Application no. 22205/13) (judgement of 24 July 2014) para 76.