EUROPEAN ENFORCEMENT ORDER AND THE TRANSFER
OF SENTENCED PERSONS (5597/05, 13080/06)
Letter from Rt Hon Baroness Scotland of
Asthal, Minister of State, Home Office to the Chairman
When I last wrote to you on 28 September 2005[90]
I indicated that I would keep you informed of developments relating
to the EU prisoner transfer proposals. I have today deposited
an Explanatory Memorandum on the revised draft of the agreement,
Council Document 13080/06.
You may wish to note that the title of the dossier
has now changed. The dossier is now known as the Council Framework
Decision on the application of the principle on 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. The Presidency is hoping
to agree the adoption of this Framework Decision by the end of
the year.
In your last letter you asked to be kept informed
of discussions relating to Article 13 (4) of the draft proposals.
In particular, how this would effect the release arrangements
of those prisoners transferred from the United Kingdom.
Article 13(4) as it was originally drafted required
the executing State to take account of the release arrangements
of the issuing State. It was not clear from the text how this
paragraph was meant to work. It became clear during the discussions
of the Working Group that taking into account the release arrangements
of the issuing State was not acceptable to a number of Member
States. They believed that once transferred the sentence should
be administered in accordance with their own domestic release
arrangements. As a result of these discussions, Article 13(4)
has been amended. It now enables Member States to provide in their
implementing legislation, if they wish to do so, for a power to
take into account the release arrangements of the issuing State.
If a Member State chooses to take this power
then it is unlikely that a prisoner transferred from the UK without
consent will be required to serve longer in custody than would
otherwise be the case here. Where however, a Member State chooses
not to implement this option, and where domestic release arrangements
are less favourable than those in the UK, a prisoner may well
find himself serving a longer period in custody as a result. As
you may know, the European Court of Human Rights ruled in the
case of Veermae that an increase in the custodial element of a
sentence did not breach a prisoner's rights under ECHR, although
it did not rule out a breach occurring if the prisoner was required
to serve a flagrantly longer de facto sentence following transfer.
Although it is possible that a prisoner may
be required to serve longer in custody as a result of transfer,
the Government nevertheless believes that it is normally in the
best interests of a prisoner that he should serve his sentence
in his country of nationality or the country of residence. The
prisoner is likely to return there on release either voluntarily
or following deportation. Transfer during the course of the sentence
would enable the prisoner to undergo appropriate offending behaviour
and rehabilitation programmes and prepare himself properly for
release into the community in which he will live.
In determining whether a prisoner should be
transferred under this Framework Decision, the Government would
consider each case on its individual merits taking into account
the views of the prisoner, the effect of the transfer on the prisoners
release arrangements, and the ruling of the European Court.
2 October 2006
Letter from the Chairman to Rt Hon Baroness
Scotland of Asthal
Thank you for your letter of 2 October and your
recent Explanatory Memorandum on this subject. The revised proposal
was considered by Sub-Committee E at its meeting on 22 November.
As you will be aware, the Committee has held this proposal under
scrutiny for nearly two years and there has been substantial conespondence
between the Committee and your Department. We would like to put
on record our appreciation for the candour with which you have
explained the Government's position.
It will not surprise you to learn that the Committee
remains concerned about a regime, however designated, which would
enable prisoners to be transfened without consent except in circumstances
where it is generally recognised that this would not contravene
human rights (for example following deportation proceedings or
where the prisoner has fled the jurisdiction). Under the Framework
Decision, the prisoner would have the opportunity to express his
or her opinion. You have confirmed that the Government would have
regard to this opinion and that there would be the right of judicial
review when ECHR arguments could be raised. We invite the Government
to reconsider whether any implementing legislation should state
explicitly the right of appeal.
Also, when implementing the Framework Decision
we believe that the Government should reconsider the position
as regards double criminality, a matter which we understand our
sister Committee in the House of Commons has also raised with
you, and in addition consider the question of release anangements.
As regards the latter, we note that Article 13(4) enables an executing
State to take account of early or conditional release anangements
indicated by the issuing State. Consideration should be given
to the position both where the UK is the executing State and where
it is the issuing State.
You say that the Finnish Presidency hopes that
the Framework Decision will be adopted at the JHA on 4-5 December.
In these circumstances and subject to the points made above, the
Committee decided to conclude its scrutiny of the proposed Framework
Decision and its predecessor (Docs 13080/06 and 5597/05 respectively).
24 November 2006
90 Correspondence with Ministers, 45th Report of Session
2005-06, HL Paper 243, p 398. Back
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