6 European enforcement order and the transfer
of sentenced persons
| (26317)
5597/05
—
| Draft Council Framework Decision on the European enforcement order and the transfer of sentenced persons between the Member States of the EU
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| Legal base | Articles 31(1)(a) and 34(2)(b) EU; consultation; unanimity
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| Deposited in Parliament | 26 January 2005
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| Department | Home Office |
| Basis of consideration | EM of 11 February 2005
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| Previous Committee Report | None
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| To be discussed in Council | No dates set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
6.1 The principal international agreement governing the transfer
of prisoners is the 1983 Council of Europe Convention on the Transfer
of Sentenced Persons. 57 States, including all the Member States
of the European Union, are party to this Convention, with the
United Kingdom being one of the first to ratify. The Convention
provides for the transfer of a prisoner convicted abroad to the
country of which he is a national. Under the Convention, the
consent of both the sentencing country and the country to which
the prisoner is to be transferred, as well as of the prisoner
himself, is required before a transfer may take place. In accordance
with the Convention, section 1(1)(c) of the Repatriation of Prisoners
Act 1984 requires the consent of the prisoner before the Secretary
of State may issue a warrant for his transfer.
6.2 The European Arrest Warrant (Council Framework
Decision 2002/584/JHA of 13 June 2002)[14]
also makes provision for the return of a person who has been convicted
following his extradition. By virtue of Article 5(3) of the European
Arrest Warrant, the State executing the warrant for extradition
may make the surrender of the person conditional on his being
returned after conviction to serve his sentence in the State from
which he was extradited.
The draft Framework Decision
6.3 The draft Framework Decision, which has been
proposed by Austria, Finland and Sweden, is intended to simplify
and make more rapid the existing arrangements for the transfer
of prisoners between EU Member States, whether under the 1983
Council of Europe Convention or the European Arrest Warrant (EAW).
Member States would be permitted to continue to apply existing
bilateral or multilateral agreements or arrangements in force
at the time of adoption of the Framework Decision, but only "insofar
as they allow the objectives of the Framework Decision to be extended
or enlarged and help to simplify or facilitate further the procedures
for the enforcement of sanctions".
6.4 The proposal introduces the concept of a "European
enforcement order", which is defined (in Article 1) as a
"decision delivered by a competent authority of the issuing
State for the purpose of enforcing a final sanction imposed on
a natural person by a court of that State". "Sanction"
is defined as "any custodial sentence or detention order
for a limited or unlimited period of time imposed by a court on
the basis of criminal proceedings on account of a criminal offence".
A State issuing a European enforcement order is described as an
"issuing State" and the State in which the sentence
is to be carried out under the order is described as the "executing
State".
6.5 By virtue of Article 2 it is for each Member
State to designate its competent authorities, and Member States
may designate one or more central authorities if this is necessary
"as a result of the organisation of its internal system".
Article 3 provides for the application of the Framework Decision
to cases under Article 5(3) and 4(6) of the EAW.[15]
6.6 Article 4 of the proposal deals with the forwarding
of a European enforcement order. Such an order may be forwarded
to the State of which the convicted person is a national, or in
which he has his "permanent legal residence" or with
which the person has "other close links". In the latter
case, the consent of the prisoner is required before an order
may be forwarded (but such consent is not required in other cases).
An executing State may request the forwarding of an order. A prisoner
may also request either the issuing or the executing State to
secure the forwarding of an order. Where the prisoner has his
"permanent legal residence" in the issuing State, an
order may not be forwarded without the prisoner's consent, except
in the case where he is subject to an order for expulsion or deportation,
or any similar measure, following completion of the sentence.
6.7 Article 5 provides that the prisoner shall "if
possible" be given an "opportunity to state his opinion
orally or in writing" before a European enforcement order
is issued. Apart from the case where the prisoner is to be transferred
to a country with which he has "other close links",
the prisoner's consent is not required for the forwarding of an
order. The prisoner's opinion is to be "taken into consideration"
when deciding whether a European enforcement order is to be issued
and, if so, to which country the prisoner is to be transferred.
6.8 Article 6 deals with the form and content of
a European enforcement order and provides for the use of a standard
form which is annexed to the proposal. Article 7 determines the
scope of the proposal. It prescribes a list of offences in respect
of which a European enforcement order is to be recognised and
enforced. The relevant offences are ones which carry a maximum
penalty of at least three years' imprisonment and which are set
out in a descriptive list, similar to the list in Article 2(2)
of the European Arrest Warrant. The list includes such concepts
as "computer-related crime", "racism and xenophobia",
"swindling" and "sabotage". If the offence
falls within the categories in the list, the order is to be recognised
and enforced "without verification of the double criminality
of the act" (i.e. the order must be recognised and enforced
whether or not the act for which imprisonment was imposed constitutes
a criminal offence in the country to which the order is forwarded).
In other cases, the executing State may make recognition and enforcement
subject to the requirement of dual criminality.
6.9 Article 8 requires a European enforcement order
to be recognised and enforced "without any further formality
being required", unless one of the permitted grounds for
non-recognition under Article 9 is available. In cases where the
term of imprisonment, or the nature of the penalty, imposed is
incompatible with the fundamental principles of law of the executing
State, Article 9(2) permits the executing State to adapt the term
of imprisonment to the maximum provided under its national law
or to impose a corresponding penalty. However, a term of imprisonment
may not be converted into a fine; neither may the penalty be increased
as to its severity.
6.10 Article 9 sets out a limited number of grounds
on which an executing State may refuse to recognise and enforce
a European enforcement order. These cover the case where there
has been a decision in the executing State or in any other State
against the person in respect of the same acts, or where dual
criminality can be required under Article 7(3) as a condition
of enforcement, or where enforcement of the decision is statute-barred
in the executing State (provided the executing State would have
had jurisdiction over the acts in question under its own law).
Recognition and enforcement may also be refused if the sentence
of imprisonment has been imposed on a minor who, by reason of
his age, could not have been held criminally liable under the
law of the executing State, or if fewer than four months of the
term of imprisonment remain to be served. Article 9(1)(f) provides
that recognition and enforcement may be refused if the prisoner
has not consented to his transfer and has been convicted in his
absence in circumstances where he was not summoned personally
or informed in some other way of the time and place of proceedings.
Article 9(1)(g) allows recognition and enforcement to be refused
where the prisoner is not a national of the executing State, nor
is legally and permanently resident in that State, nor has close
links with that State.
6.11 Articles 10 and 11 provide for time limits.
A decision on whether to recognise and enforce an order is, in
principle, to be taken within three weeks and the ensuing transfer
is to take place within two weeks. Article 12 makes provision
for the transit of the prisoner through the territory of Member
States.
6.12 Article 13 provides for the law of the executing
State to apply to the carrying out of the sentence in the executing
State, including the question of any conditional release. Article
13(3) nevertheless provides that, unless otherwise agreed between
the issuing and executing State, conditional release may be granted
only if the prisoner has served at least half of his sentence.
Article 14 applies a speciality rule so that a prisoner who is
transferred under an order may not be prosecuted or sentenced
or otherwise deprived of his liberty for any offence committed
prior to his transfer other than the one for which he was transferred.
Exceptions to this rule are provided for in Article 14(2) to cover
proceedings for non-custodial penalties, or where the issuing
State gives its consent, or where the prisoner expressly renounces
his right to rely on this rule. Article 15 provides that a pardon
or amnesty may be granted by either the issuing or executing State.
6.13 The remaining Articles of the proposal are concerned
with the exchange of information between Member States, the consequences
of transfer for the prisoner (the issuing State may not further
enforce the sentence once a prisoner has been transferred), costs
(these are borne by the executing State), relationship with other
bilateral and mulitaleral agreements, implementation and entry
into force.
The Government's view
6.14 In her Explanatory Memorandum of 11 February
2005 (received by us on 3 March), the Parliamentary Under-Secretary
of State at the Home Office (Caroline Flint) explains that although
the United Kingdom has been a party to the 1983 Council of Europe
Convention from the outset, its procedures can be "slow and
bureaucratic" and require the consent of both the States
involved as well as that of the prisoner. The Minister states
that the draft Framework Decision "seeks to replace the Convention
as the vehicle for prisoner transfer within the EU, while allowing
Member States to continue using the Convention for transfers to
countries outside the Union".
6.15 The Minister adds that the Government welcomes
this initiative and that it recognises the benefits both to prisoners
and Member States if prisoners are permitted to serve their sentences
in their own countries. The Minister explains that the Government
nevertheless has reservations about the compulsory nature of the
transfers and notes that under Article 5 the prisoner's consent
is not required. The Minister comments that this is the principal
difference between the Framework Decision and the Council of Europe
Convention. The Minister explains her concern as follows:
"The Government's concern arises over the differing
release arrangements applicable in Member States. Under the terms
of the Convention and the draft Framework Decision, once a prisoner
is transferred the sentence is administered in accordance with
the law of the receiving/executing State, i.e. domestic release
arrangements will apply. Although it would not be possible to
increase the actual length of a prisoner's sentence, the application
of the early release provisions of the executing State may result
in a prisoner being required to serve longer in custody than would
have been required or expected by the sentencing court. The Government,
while not opposing the principle of compulsory transfer, would
wish to consider this issue further."
6.16 In relation to the obligation under the Framework
Decision to accept sentenced nationals, permanent residents and
persons with other close links, the Minister comments that the
UK would normally accept any British national who sought transfer
back to the United Kingdom and that the Repatriation of Prisoners
Act 1984 gives the Home Secretary the power to consider applications
from non-British nationals who may have close links with the UK.
The Minister also points out that the 1984 Act does not require
dual criminality to be shown when considering applications for
transfer. The Minister also explains that the Government does
not object in principle to the fixing of time limits but adds
that such limits would have to be practicable and achievable.
6.17 The Minister states that the Government welcomes
the requirement whereby the executing State must continue to enforce
the sentence imposed in the issuing State, commenting that "this
will ensure that as far as possible prisoners do not receive excessive
reductions in time to serve as a consequence of transfer".
6.18 The Minister adds that the Government intends
to consult Prisoners Abroad and the Prison Reform Trust on the
draft proposal.
Conclusion
6.19 We thank the Minister for her Explanatory
Memorandum. We regret the fact that the proposal does not explain
why it was thought necessary to provide for the compulsory transfer
of prisoners. This is a major departure from the Council of Europe
regime, which we find hard to justify, since no need for such
a drastic measure has been shown. Indeed, we question what need
there is for the new institution of a "European enforcement
order" when any delays in transfers under the Council of
Europe regime might better have been addressed by improved cooperation
between States. We ask the Minister to explain why the necessary
improvements in cooperation between Member State could not have
been achieved by less intrusive means.
6.20 We believe the Minister is right to be concerned
about the harmful effects on the prisoner of differing early release
arrangements, but we remind the Minister that these difficulties
are made the more striking by compulsory transfers. We do not
see any ready justification for treating a prisoner more severely
than he might otherwise have been treated simply because a decision
has been made compulsorily to transfer him. We therefore ask the
Minister for a further explanation of the reasons why the Government
has not so far opposed the principle of compulsory transfer.
6.21 We welcome the Minister's intention to consult
Prisoners Abroad and the Prison Reform Trust, and we ask the Minister
to give us an account in due course of the views these organisations
have expressed.
6.22 In the meantime, we shall hold the document
under scrutiny.
14 OJ No. L 190 of 18.7.2002, p.1. Back
15
Under Article 4(6) the requested State may itself enforce the
custodial sentence instead of surrendering the person, if this
is provided for in the national law. Back
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