Select Committee on European Scrutiny Thirty-Ninth Report


6 European enforcement order and the transfer of sentenced persons

(a)

(26317)

5597/05


(b)

(27840)

13080/06


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

Legal baseArticles 31(1)(a) and 34(2)(b) EU; consultation; unanimity
Deposited in Parliament(b) 29 September 2006
DepartmentHome Office
Basis of consideration(a) Minister's letter of 2 October 2006

(b) EM of 4 October 2006

Previous Committee Report(a) HC 38-xv (2004-05), para 6 (6 April 2005)

(b) None

To be discussed in CouncilJustice and Home Affairs Council 4-5 December 2006
Committee's assessmentLegally and politically important
Committee's decision(a) Cleared

(b) Not cleared; further information requested

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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