6 European enforcement order and the
transfer of sentenced persons
| (a)
(26317)
5597/05
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(b)
(27840)
13080/06
—
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Draft Council Framework Decision on the European enforcement order and the transfer of sentenced persons between the Member States of the EU
Draft Council Framework Decision on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union
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| Legal base | Articles 31(1)(a) and 34(2)(b) EU; consultation; unanimity
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| Deposited in Parliament | (b) 29 September 2006
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| Department | Home Office |
| Basis of consideration | (a) Minister's letter of 2 October 2006
(b) EM of 4 October 2006
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| Previous Committee Report | (a) HC 38-xv (2004-05), para 6 (6 April 2005)
(b) None
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| To be discussed in Council | Justice and Home Affairs Council 4-5 December 2006
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) Cleared
(b) 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,[22]
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)[23]
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.
6.3 The previous Committee considered a draft Council Framework
Decision (document (a)) on 6 April 2005. The Committee noted that
this was 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). The proposal introduced the concept of a
"European enforcement order", which would be issued
by the State in which a person had been sentenced to a term of
imprisonment and forwarded to the State in which the person so
sentenced has his "permanent legal residence" or with
which he has "other close links". The order would be
recognised and enforced in that State "without any further
formality being required", unless one of the permitted grounds
for non-recognition was available.
6.4 The Committee noted that the consent of the prisoner was required
before an order was forwarded to a Member State with which he
has "close personal links", but that such consent was
not required in other cases. The Committee noted that, although
the Government was not opposed to the principle of compulsory
transfer, it had reservations about the compulsory nature of the
transfers arising from the differing release arrangements applicable
in Member States, since these might result in a prisoner being
required to serve longer in custody than would have been required
or expected by the sentencing court.
6.5 The Committee regretted the absence of any explanation in
the proposal of why it was thought necessary to provide for the
compulsory transfer of prisoners. The Committee considered this
to be a "major departure" from the Council of Europe
regime, which it found hard to justify, and questioned the need
for 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. The Committee asked the
Minister to explain why the necessary improvements in cooperation
between Member State could not have been achieved by less intrusive
means.
6.6 The Committee reminded the Minister that the concerns she
had expressed about the harmful effects on the prisoner of differing
early release arrangements were made the more striking by the
compulsory nature of the transfers. The Committee did not see
any ready justification for treating a prisoner more severely
simply because a decision had been made compulsorily to transfer
him, and asked the Minister for a further explanation of the reasons
why the Government had not so far opposed the principle of compulsory
transfer. The Committee welcomed the Minister's intention to consult
Prisoners Abroad and the Prison Reform Trust and asked for an
account of their views.
The Minister's reply
6.7 In her letter of 2 October 2006 the Minister of State at the
Home Office (Baroness Scotland of Asthal) informs us of a revised
proposal (document (b)) and addresses the concerns of the previous
Committee over the provisions for compulsory transfer. The Minister
states that the principal difference between the proposal and
the Council of Europe Convention on the Transfer of Sentenced
Persons is that a prisoner's consent to transfer is not required
in all cases. The Minister adds that the Protocol to the Council
of Europe Convention, which was opened for signature in 1997,
provides for compulsory transfer where the sentenced person is
to be deported at the end of his sentence, or where he has fled
to the State of his nationality after being sentenced, and states
that the draft Framework Decision "builds on this foundation".
6.8 More generally on the question of compulsory transfers, the
Minister makes this comment:
"The Government does not accept that transfer without
consent is an intrusive measure. The Government believes that
it is better for the State and the prisoner concerned if they
serve their sentence in the country where they will be released,
and does not believe that a prisoner should be able to frustrate
a transfer properly agreed between the two Governments concerned
by withholding consent to a transfer. For this reason we will
introduce an amendment [next week] to the Repatriation of Prisoners
Act 1984 to clarify the circumstances under which prisoner consent
is required. We then intend to negotiate other prisoner transfer
agreements with like minded countries that do not require the
consent of the prisoner."
6.9 In reply to the comments of the previous Committee on the
question of effects on a prisoner of differing release arrangements,
the Minister recalls that the Government did have concerns about
compulsory transfers, since it was possible that a prisoner transferred
from one jurisdiction to another might have to serve longer in
custody than would be the case if the transfer had not taken place.
The Minister refers us to the judgment of the European Court of
Human Rights in Mairold Veermae v. Finland[24]
in which the Court considered the case of a prisoner who was compulsorily
transferred from Finland to Estonia under the terms of the Protocol
to the Council of Europe Convention. The transfer resulted in
the prisoner having to serve a longer custodial part of the sentence
in Estonia than would have been required in Finland. The Minister
explains that the Court found that no breach of the European Convention
on Human Rights had occurred, although it went on to state that
"it could not rule out a breach occurring if a flagrantly
longer de facto sentence should occur".
6.10 The Minister further explains that the draft Framework Decision
permits Member States to provide for account to be taken of release
arrangements of the State transferring the prisoner when determining
the date for the prisoner's conditional or other release dates
following his transfer. The Minister adds that where a State chooses
to use this power it is "unlikely" that a prisoner transferred
from the UK without consent would be required to serve longer
in custody than would otherwise be the case. On the other hand,
if the State concerned does not implement this option, then it
is possible that a prisoner may find himself serving a longer
period in custody. The Minister comments that the Government "does
not believe that this, in itself, should be a reason for refusing
to transfer a prisoner", but that in considering whether
or not to transfer a prisoner, the Government "will treat
request on its individual merits and will take account of the
views of the prisoner, the effect of the transfer on the prisoners
release arrangements and the ruling of the European Court".
6.11 The Minister did not reply directly to our request for an
account of the view of Prisoners Abroad, but we have seen a copy
of a letter of 3 June 2005 from the Chief Executive of the charity
to an official in HM Prison Service, in which Prisoners Abroad
objects "most strongly" to the transfer of prisoners
without their consent. Prisoners Abroad make this further comment:
"The trend for British nationals to live abroad is well
documented and shows no sign of stopping. It is this group particularly
that would be affected by such a decision. They will have moved
outside Britain with their families establishing new lives, friendships
and occupations. Any move to automatically repatriate people without
considering where their closest connections (support networks
that are so important in resettlement and the promotion of a crime
free future) are actually based, is, in our opinion, short sighted.
It would generate many more problems for the families through
economic deprivation and isolation.
"We are concerned that even though an executing State
cannot increase the length of the prisoner's sentence, the application
of the early release provisions of the executing State may result
in the prisoner serving longer than if they stayed in the issuing
State".
The revised draft Framework Decision
6.12 The revised draft Framework Decision (document (b)) incorporates
the results of further negotiations up to a meeting of senior
Member State officials on 15 and 19 September. The main elements
of the draft have remained unchanged. The proposal imposes a basic
obligation on Member States to accept its nationals, and those
with a right to permanent residence, who have been convicted abroad,
unless the prisoner has lost or will lose his right of residence
in the State to which he is to be sent. Dual criminality would
not be required in order to detain a prisoner convicted abroad
for the 32 types of conduct listed. (The list appears to be the
same as that in Article 2(2) of the European Arrest Warrant, and
therefore includes such concepts as "computer-related crime",
"racism and xenophobia" and "swindling").
The recognition and enforcement of a final custodial sentence
or detention order would take place on the basis of a certificate
from the sending State, and the receiving State would be obliged
to enforce the sentence subject to the sentence not exceeding
the maximum available for the offence under its own law.
6.13 A number of detailed, but important, changes have been made.
In Article 3a (criteria for forwarding a judgment and certificate
to another Member State) the competent authority of the issuing
State must be "satisfied that the enforcement of the sentence
by the executing State would serve the purpose of facilitating
the social rehabilitation of the sentenced person". This
provision is linked with a recital which asserts that "enforcement
of the sentence in the executing Member State enhances the possibility
of social rehabilitation of the sentenced person given the opportunity
for him or her to maintain family, cultural and other links".
6.14 The provisions, now in Article 5, on the "opinion and
notification of the sentenced person" have been amended.
Article 5(1) provides that a judgment and certificate may only
be forwarded to an executing State (with a view to transferring
the prisoner to that State) if the prisoner has given his consent
in accordance with the law of the issuing State. However, consent
is not required if the transfer is to be to "the State of
nationality in which [the prisoner] lives", or to a State
to which the person is to deported under an expulsion or deportation
order, or if the transfer is to a State to which "the person
has fled or otherwise returned in view of the criminal proceedings
pending against him or her in the issuing State or following conviction
in that State".
The Government's view
6.15 In her Explanatory Memorandum of 4 October 2006 the Minister
of State at the Home Office (Baroness Scotland of Asthal) explains
that the draft Framework Decision is intended to "speed up
and simplify" the existing arrangements for the transfer
of prisoners between EU Member States, and is also intended to
facilitate the return of prisoners extradited under Article 5(3)
of the European Arrest Warrant. The Minister refers to the Council
of Europe Convention on the Transfer of Sentenced Persons to which
all EU Member States are party, and points out that the UK was
one of the first countries to ratify the Convention and that it
"continues to support the humanitarian principles underpinning
prisoners' transfers".
6.16 The points made by the Minister in support of the proposal,
notably in relation to compulsory transfers, are substantially
the same as those made in her letter to us of 2 October. The Minister
also informs us that as at 30 June 2006, there were 801 British
nationals held in prisons in other EU Member States and that on
31 August 2006 there were 2,348 foreign nationals held in prisons
in the UK. The Minister comments that, given this imbalance, the
Government "would expect to make savings in prison places".
Conclusion
6.17 We thank the Minister for her helpful letter and Explanatory
Memorandum. Like the Minister, we also support the humanitarian
principles which underpin the transfer of prisoners. However,
we do not see how respect for these principles can easily be reconciled
with a system which provides for the compulsory transfer of prisoners
to countries to which they do not wish to go.
6.18 The proposal rests on an assumption, now reflected in
a recital, that transfer will facilitate the social rehabilitation
of the sentenced person, but we ask the Minister to explain how
this can reasonably be asserted in a case where the prisoner has
been transferred against his will. Equally, we find it difficult
to see how an issuing authority, acting reasonably, can satisfy
itself that enforcement of a sentence in a country to which the
prisoner does not wish to go, will nevertheless facilitate his
social rehabilitation. We note the strong objections which have
been made by Prisoners Abroad to the concept of compulsory transfer
under this proposal and we ask the Minister for her views on these
objections.
6.19 We note that the proposal provides for the enforcement
of sentences of imprisonment without requiring that the offence
should also be an offence in the State where the sentence is to
be served. On a previous occasion, the then Minister explained
to us that the Repatriation of Prisoners Act 1984 did not require
dual criminality to be shown when considering an application for
transfer, but we consider that a compulsory transfer of the sort
contemplated under this proposal is quite different from the case
where the prisoner himself applies for a transfer under arrangements
covered by the 1984 Act. We ask the Minister if the proposal could
have the effect, for example, of causing a UK national to be compulsorily
transferred for incarceration in this country for an offence (such
as 'Holocaust denial') which is not an offence here, and whether
it is right that the UK should be detaining its own nationals
in such circumstances at the request of other EU Member States.
6.20 We also ask the Minister for her assessment of whether
the provisions on compulsory transfer, in circumstances other
than those of eventual deportation, or flight as mentioned in
the Protocol to the Council of Europe Convention, are nevertheless
compatible with the European Convention on Human Rights.
6.21 We clear document (a) on the grounds that it has been
superseded, but we shall hold the current document (document (b))
under scrutiny pending the Minister's reply.
22 The USA is also a party. Back
23
OJ No. L 190, 18.7.02, p.1. Back
24
Application No 38704/03. Decision of Fourth Chamber on 15 March
2005. Back
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