4 European enforcement order and the
transfer of sentenced persons
| (27840)
13080/06
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| Draft Council Framework Decision on the application of 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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| Department | Home Office |
| Basis of consideration | Minister's letter of 23 November 2006
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| Previous Committee Report | HC 34-xxxix (2005-06), para 6 (25 October 2006) and see (26317) 5597/05 HC 38-xv (2004-05), para 6 (6 April 2005)
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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 | For debate in European Standing Committee
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Background
4.1 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,[7]
are party to this Convention, with the United Kingdom being one
of the first to ratify. The Convention provides for the transfer,
with his consent, of a prisoner convicted abroad to the country
of which he is a national.
4.2 The previous Committee considered an earlier
version of the draft Council Framework Decision on 6 April 2005.
The Committee noted that the proposal was intended to simplify
and make more rapid the existing arrangements for the transfer
of prisoners by introducing 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.
4.3 The Committee noted that the consent of the prisoner
was only required in a case of transfer to a Member State with
which he has "close personal links", but not in any
other case. The Committee considered the provision for the compulsory
transfer of prisoners 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.
4.4 We considered on 25 October 2006 the Minister's
reply to the concerns of the previous Committee over the provisions
for compulsory transfer. The Minister stated that the principal
difference between the proposal and the Council of Europe Convention
was that a prisoner's consent to transfer was not required in
all cases. The Minister added that the Protocol to the Council
of Europe Convention, opened for signature in 1997, provided for
compulsory transfer where the sentenced person was to be deported
at the end of his sentence, or where he had fled to the State
of his nationality after being sentenced, and stated that the
draft Framework Decision "builds on this foundation".
4.5 On the question of compulsory transfers, the
Minister stated that the Government did not think that transfer
without consent was an intrusive measure, that it was "better
for the State and the prisoner concerned" if the prisoner
served his sentence in the country where he would be released,
and that it did 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". The Minister
added that the draft Framework Decision permitted 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, and thought that, if such account were taken, it
would be "unlikely" that a prisoner transferred from
the UK without consent would be required to serve longer in custody
than would otherwise be the case, but did not think that the possibility
that a prisoner might find himself serving a longer period in
custody should, in itself, be a reason for refusing to transfer
a prisoner.
4.6 We also considered on 25 October a revised version
of the proposal, the main elements of which had remained unchanged.
It continued to impose an obligation on Member States to enforce
sentences arising from foreign convictions of its nationals, and
those with a right to permanent residence. If the conviction abroad
was for one of 32 types of conduct listed including such concepts
as "computer-related crime", "racism and xenophobia"
and "swindling", the resulting sentence would fall to
be enforced even if the conduct was not criminal within the national
territory.
4.7 We noted a number of detailed, but important,
changes. Under Article 3a (criteria for forwarding a judgment
and certificate to another Member State) the competent authority
of the issuing State had to 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".
Under Article 5(1), a judgment and certificate was to be forwarded
to an executing State (with a view to transferring the prisoner
to that State) if the prisoner had given his consent, but such
consent was not required if the prisoner was to be transferred
to "the State of nationality in which [the prisoner] lives",
or to a State to which the person is to be 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".
4.8 We noted that the charity Prisoners Abroad objected
"most strongly" to the transfer of prisoners without
their consent.
4.9 We also noted the information from the Minister
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 and
that, given this imbalance, the Government would expect to make
savings in prison places as a result of the proposal.
4.10 We supported the humanitarian principles which
underpinned the transfer of prisoners, but did not see how respect
for these principles could easily be reconciled with a system
which provided for the compulsory transfer of prisoners to countries
to which they did not wish to go. We asked the Minister to explain
how it could reasonably be asserted that a transfer would facilitate
the social rehabilitation of the sentenced person where the transfer
was carried out against his will, and for her views on the strong
objections which had been made by Prisoners Abroad to the concept
of compulsory transfer.
4.11 We noted 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 and asked the Minister if the proposal could have
the effect, for example, of causing a UK national to be compulsory
transferred for incarceration in this country for an offence (such
as 'Holocaust denial') which is not an offence here, and whether
it was right that the UK should be detaining its own nationals
in such circumstances at the request of other EU Member States.
4.12 We also asked 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, were nevertheless
compatible with the European Convention on Human Rights (ECHR).
We held the document under scrutiny pending the Minister's reply.
The Minister's reply
4.13 In her letter of 23 November 2006 the Minister
of State at the Home Office (Baroness Scotland of Asthal) explains
that the principal aim of the Framework Decision is to enhance
the prospects of a prisoner's social rehabilitation into society
and that the Government believes that social rehabilitation can
best take place in the country in which the prisoner has his "primary
links" and where he would normally be expected to live following
release.
4.14 The Minister states that these considerations
are recognised by Article 5 of the Framework Decision and that
the circumstances under which the consent of the prisoner is not
required are limited to transfer to the prisoner's State of nationality
in which he or she lives, the State to which the prisoner will
be deported, and the State to which the prisoner has fled. The
Minister states that in all other cases the consent of the prisoner
would be required.
4.15 The Minister makes these further comments on
the issue of transfer without consent:
"As you know, transfer without consent where
the prisoner is to be deported or where the prisoner has fled
is already provided for under the Additional Protocol to the Council
of Europe Convention on the Transfer of Sentenced Persons which
the Government intends to ratify next year. The draft Framework
Decision builds on these provisions by providing for transfer
without the prisoner's consent to the prisoner's State of nationality
in which he or she lives. This condition requires not only that
a prisoner should be a national of the executing State but that
it should also be his normal place of residence. As the prisoner's
normal place of residence it would be reasonable to believe that
this is where his primary links are i.e. family, friends and economic
interests. It is also reasonable to assume that it would be to
this country that the prisoner would return on release.
"The Government does not believe that the fact
that a prisoner does not want to return to his State of nationality
as a sentenced person undermines the possibility of social rehabilitation.
Transfer, whether on a voluntary or compulsory basis, will enable
a prisoner to undertake offender behaviour and other programmes
more suited to that country. Difficulties associated with language
and cultural differences would also be diminished following transfer.
He would also, where appropriate, be able to take advantage of
home leave and other opportunities of developing social and other
links with the community in which he will live following his release
from custody. More generally, the increased stability provided
by the presence of family or friends that most offenders in this
position will benefit from may provide a significant aid to rehabilitation.
By contrast, the absence of such stability in the issuing State
may construct a barrier to that objective being achieved."
4.16 The Minister notes that Article 5 of the proposal
permits the prisoner to give his opinion on the proposed transfer,
either orally or in writing, and that "if he does not wish
to be transferred he will be able to give his reasons". The
Minister adds that if the prisoner has family or other links with
the issuing State, then "these will be taken into account
by that State before a decision on whether to seek transfer is
made", but that the final decision will rest with the issuing
State. The Minister also states that where the UK is the issuing
State, the prisoner will also have the right to seek judicial
review of the decision of the Secretary of State to transfer him
under the proposed Framework Decision.
4.17 In relation to the objections of Prisoners Abroad
to the principle of transfer without consent, the Minister explains
that these were "primarily on the grounds that the decision
to transfer a prisoner without consent takes no account of a prisoner's
connections with the issuing State". The Minister comments
that the observations by Prisoners Abroad were made on an earlier
version of the text and believes that these concerns have now
been "largely addressed". The Minister goes on to explain
that if a prisoner has moved with his family to the issuing State
and has an established right of residence there, then he could
no longer be said to be "living in his state of nationality"
adding that in these circumstances transfer could only take place
with his consent, unless he was to be deported to the executing
State at the end of his sentence.
4.18 The Minister explains that the Framework Decision
does not require dual criminality[8]
for the offences listed in Article 7(1), which list of 32 offences
"mirrors" the list of offences referred to in the European
Arrest Warrant,[9] but
that for all other offences the executing State may require dual
criminality. The Minister also points out that Article 7 contains
a provision whereby a Member State may declare that it will not
apply Article 7(1) (with the result that it would require dual
criminality in all cases).
4.19 The Minister further explains that dual criminality
is not required by the Repatriation of Prisoners Act 1984 and
makes these further comments:
"Parliament specifically envisaged the possibility
of a prisoner serving a sentence in the UK for an offence not
recognised under UK law. The draft Framework Decision does not
alter this; nor does the Government believe that the fact that
a prisoner has not consented to the transfer makes this in any
way less acceptable. For the reasons set out above we believe
that it is in the interests of the rehabilitation of the prisoner
that he should, where possible, serve his sentence in the country
with which he has his primary links.
"The Government has not yet decided whether
it will use the provision contained in Article 7 which allows
it to opt out of the general proposition that dual criminality
is not required in certain cases. If it does not take up this
option then it would be possible for a British national convicted
of holocaust denial in another EU Member State to be compulsorily
transferred to the UK to serve his sentence here."
4.20 In relation to our questions on the compatibility
with the ECHR of the provisions on compulsory transfer, in circumstances
other than those of eventual deportation or flight, the Minister
states that issues under Article 5 ECHR do not arise, as the detention
following transfer takes place following the conviction and sentence
handed down by a competent court. The Minister states that in
relation to Article 8 ECHR (right to respect for private and family
life) "it seems unlikely" that this provision would
be engaged in most transfers of this type. The Minister adds that:
"were such an issue to arise, it would be for
the issuing State to determine the strength of these links and
the extent to which Article 8(2) permitted a proportionate interference
with them before transfer could [take] place. That is a balancing
exercise to be carried out taking into account all relevant facts
relating to each proposed transfer. This does not in any way suggest
that every transfer will engage Article 8 or that such a transfer
may be incompatible. Consequently, the simple existence of the
power to transfer in the Framework Decision is not incompatible
with Article 8 ECHR."
4.21 The Minister informs us that the Presidency
intends to discuss the Framework Decision at the December JHA
Council with a view to agreeing a general approach.
Conclusion
4.22 We thank the Minister for her letter which
does seek to address the issues we have raised on this proposal.
However, we find the arguments in favour of the compulsory transfer
of prisoners to be unconvincing.
4.23 The purpose of the Framework Decision, as
set out in Article 3(1), is to establish rules "with a view
to facilitating the social rehabilitation of the sentenced person".
Apart from those cases where a prisoner is incapable of making
a decision, we find it difficult to see how an issuing authority,
acting reasonably, can satisfy itself that the transfer of a prisoner
to a country to which he does not wish to go, will nevertheless
facilitate his social rehabilitation. The provisions for compulsory
transfer therefore seem to us to be based on considerations which
are utilitarian rather than humanitarian.
4.24 We have also drawn attention to the bizarre
consequences which may arise from compulsory transfers without
regard for the safeguard of dual criminality. The Minister has
confirmed that the Framework Decision could result in a British
national, convicted abroad, being transferred back to the UK against
his will, and imprisoned here for conduct which is not criminal
in this country. The Minister states that the Government "has
not yet decided" whether it will take up the option which
would allow it to apply the safeguard of dual criminality in all
cases. We think it essential that this is done.
4.25 We therefore consider that the Framework
Decision raises a number of issues of principle which ought to
be debated. In our view, these include the question of whether
there is any necessity for the proposal, given the existence of
the Council of Europe Convention (which has a much wider geographical
reach including the United States, Australia and Canada), whether
it is right to extend the compulsory transfer of prisoners beyond
the limited class of cases under the Additional Protocol to the
Council of Europe Convention, and whether the United Kingdom should
require the safeguard of dual criminality so as to ensure that
it does not end up imprisoning its own nationals, on behalf of
other EU Member States, when they have been convicted in respect
of conduct which is not a crime in the United Kingdom and compulsorily
transferred to this country.
4.26 We therefore recommend that the matter should
be debated in European Standing Committee.
7 The USA is also a party. Back
8
The effect of not requiring dual criminality is that State A must
enforce a sentence of imprisonment imposed on one of its nationals
in State B even if the conduct for which the sentence has been
imposed is not criminal in State A. Back
9
OJ No. L 190 of 18.07.2002, p.1. Back
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