B Explanatory memorandum
by Mr Philippe Mahoux, rapporteur
1. On 29 September 2016, the Committee
of Ministers invited the Parliamentary Assembly to present an opinion
on the draft protocol amending the Additional Protocol to the Convention
on the Transfer of Sentenced Persons (
ETS
No. 167, hereafter “the Additional Protocol”).
2. The Assembly is aware of the sensitive nature of cases relating
to the transfer of sentenced persons to their country of origin
and fully acknowledges the difficulties that may be encountered
in implementing the Convention on the Transfer of Sentenced Persons
(
ETS
No. 112) and the Additional Protocol to the convention. Transfer-related
cases may, therefore, raise a number of questions pertaining to
human rights.
3. The convention dates back to 1983 and its Additional Protocol
to 1997. The main aim of the convention is to further the social
rehabilitation of sentenced persons by facilitating the transfer
of foreign prisoners to their countries of origin. This approach
is based on humanitarian considerations, as difficulties in communication
by reason of language barriers, alienation from local culture and
customs, and the absence of contacts with relatives may have detrimental
effects on the foreign prisoner.
Note The convention has a broad geographical scope.
It is open to signature by non-member States
Note of the Council of Europe and, to
date, 46 member States (all except Monaco) have acceded to it and
19 non-member States have ratified it (including the observer States
of the Council of Europe and/or the Assembly: Canada, the United
States of America, Israel, Japan and Mexico, along with certain
South American countries, such as Chile, Honduras and Venezuela).
Note It should be noted that public opinion
in the sentencing States is almost always in favour of the execution
of the sentence in the country of the sentenced person.
4. In general, a transfer requires the consent of the State in
which the sentence has been handed down (the “sentencing State”),
the State of which the sentenced person is a national (the “administering
State”) and the sentenced person. However, the Additional Protocol
provides for exceptions to this rule, in particular as many States
cannot extradite their own nationals.
Note The Additional Protocol,
the aim of which is to supplement the scope of the convention, has
been ratified by 37 member States (and by no non-member States).
Note The two exceptions to the rule requiring
the need to obtain the consent of the sentenced person are, first,
sentenced persons who have fled from the sentencing State to the
State of which they are nationals (Article 2) and, second, sentenced
persons subject to an expulsion or deportation order resulting from
their conviction (Article 3).
5. The Assembly has already addressed issues relating to the
application of the convention in 2001 and 2014. In 2001, our committee’s
rapporteur, Mr Tom Enright (Ireland, EPP) presented a report on
the “Operation of the Council of Europe Convention on the Transfer
of Sentenced Persons – critical analysis and recommendations”,
Note in which he identified several
problems in the practical implementation of the convention. On the
basis of this report, on 27 June 2001, the Assembly adopted
Recommendation 1527 (2001), in which it addressed a number of recommendations to
the Committee of Ministers with the aim of improving the application
of the convention. In addition, in 2014, our committee and the Assembly
looked at the application of Article 12 of the convention (which
confirms the rights of States Parties to grant a pardon or an amnesty)
in the context of the case of Mr Ramil Safarov, an Azerbaijani soldier
who had been convicted in Hungary for the murder of an Armenian
soldier during an event under the “Partnership for Peace” programme
of the North Atlantic Treaty Organization (NATO), and who had been
transferred to his country of origin after serving part of his sentence,
and was released within hours of his return.
Note
6. In its
Recommendation
1527 (2001), the Assembly called on the Committee of Ministers to
draw up a new recommendation to member States on the interpretation
and application of the convention, with the particular aim of urging
contracting States “to give utmost consideration to the family ties
and personal relationships of the prisoner when considering a transfer
request” and “to respect the right of consent of prisoners, so as
to prevent forced transfers that are contrary to the humanitarian
spirit of the Convention”.
Note In its
reply to that recommendation, the Committee of Ministers underlined
the fact that the convention was to be applied on a case-by-case
basis and considered that while family ties might be an adequate
criterion, they were not necessarily a “determining factor in all
cases”, and that the habitual residence criterion was more appropriate.
With regard to the consent of prisoners, it pointed out that the
Additional Protocol provided for cases in which it was possible
to transfer prisoners without their agreement.
Note
7. The primary aim of the draft protocol amending the Additional
Protocol is to introduce a number of changes to the latter in order
to address certain difficulties identified by its Parties. The idea
behind these is to address two separate issues: 1) to extend the
scope of Article 2 of the Additional Protocol to include situations in
which the person, subject to a final sentence, did not flee but
moved freely to the country of his
or her nationality; and 2) to delete the consequential link between
the expulsion or deportation order and the sentence imposed (Article
3.1).
Note In
addition, the draft protocol amending the Additional Protocol seeks
to extend the scope of Article 3.3.
a (which
stipulates that the sentencing State must provide the administering
State with an opinion given by the sentenced person) to cover situations
in which the sentenced person refuses to give an opinion on the
transfer: the sentencing State must therefore provide the administering
State with a statement that the sentenced person refuses to provide
an opinion in this regard. Two further proposed changes to Article 3.4
of the Additional Protocol are purely procedural in nature and seek
to introduce a 90-day time limit for the decision on application
of the “rule of speciality”
Note (Article 3.4.
a)
and to reduce the time limit of immunity against prosecution, linked
to the speciality principle, from 45 to 30 days (Article 3.4.
b).
8. The first situation referred to in the preceding paragraph,
namely where the sentenced person moved freely to the country of
his or her nationality, would not appear to pose any problems, given
that the person in question has decided himself or herself to return
to his or her own country. The second situation – where a sentenced
person subject to an expulsion order not directly related to the
sentence imposed – could give rise to more complex situations, as
the sentenced person may not always wish to return to the country
of his or her nationality. Nonetheless, this person must leave the
territory of the sentencing State, even after having served the
sentence.
9. It should be emphasised that a transfer carried out in connection
with an expulsion order may take place only once all internal remedies
against the expulsion order have been exhausted.
Note Furthermore, the Additional
Protocol clearly provides that such a transfer may take place only
at the request of the sentencing State and with the agreement of
the administering State (Article 3.1); in addition, the administering
State is obliged to take account of the opinion of the sentenced
person (Article 3.2; this is of particular relevance in the case
of persons who have several nationalities). The draft protocol amending
the Additional Protocol does not change these rules; it provides
merely a procedural change, obliging the sentencing State to provide
the administering State with a statement, where applicable, that
the sentenced person refuses to give an opinion in this regard.
Both the Explanatory report to the Additional Protocol and the Explanatory
report appended to the draft protocol amending the Additional Protocol
state that any expulsion must be in compliance with the provisions
laid down in Article 1 of Protocol No. 7 to the European Convention
on Human Rights (ETS No. 117) which requires procedural safeguards
in the event of the expulsion of a foreigner legally resident on
the territory of a State Party.
Note
10. The return of a sentenced person to his or her country of
origin without his or her consent, on the basis of a decision requiring
that person to leave the territory of the sentencing State, may
raise certain questions in respect of the European Convention on
Human Rights, in particular Article 3 (prohibition of torture and
inhuman or degrading treatment or punishment), Article 5.1.
a (arbitrary deprivation of liberty,
in particular where there is a risk that the applicant may serve
a longer sentence than the sentence he or she would serve in the
sentencing State), Article 6 (right to a fair trial), Article 7
(no punishment without law), Article 8 (right to respect for private and
family life), Article 13 (right to an effective remedy), Article
1 of Protocol No. 7 (procedural safeguards relating to expulsion)
and Article 4 of Protocol No. 7 (right not to be tried or punished
twice; this right might be at stake in cases in which an expulsion
order has been issued against a foreigner who had already served
his or her sentence). Given that thus far the Additional Protocol
has been ratified only by Council of Europe member States, at present
the transfer without consent of the sentenced person can take place
only between two Council of Europe member States, which are obliged
to comply with the European Convention on Human Rights. If the Additional
Protocol were to be ratified by non-member States of the Council
of Europe and a prisoner were to be transferred to a non-member
country where there was a risk that he or she would be subjected
to torture or inhuman treatment, the sentencing State would be held
responsible for any violation of Article 3 of the European Convention
on Human Rights.
Note
11. The European Court of Human Rights (“the Court”) has examined
several cases concerning the transfer of sentenced persons.
Note In the
Veermäe v. Finland case
, it states that “to lay down a
strict requirement that the sentence served in the administering
country should not exceed the sentence that would have to be served
in the sentencing country would also thwart the current trend towards
strengthening international co-operation in the administration of
justice, a trend which is reflected in the Transfer Convention and
is in principle in the interests of the persons concerned”.
Note It has
examined cases in which the applicants had been sent back to their
countries of origin following transfer of sentence decisions taken
on the basis of Article 2
Note or Article 3 of the Additional
Protocol and have complained of poor conditions in prisons,
Note more
restrictive requirements for obtaining conditional release in their
country of origin
Note or
sentences not provided for in the legislation of that country.
Note In the
Csoszanszki v. Sweden case,
Note the Court
stated that Article 6 of the European Convention on Human Rights
did not apply to expulsion procedures
Note or
to sentence enforcement procedures
Note and
that the Convention did not guarantee the right to conditional release
or the right to serve one’s sentence under a particular regime.
12. In conclusion, even though the transfer of sentenced persons
may, in certain circumstances, raise problems in respect of the
European Convention on Human Rights, the Court has rarely found
violations of the Convention in cases concerning the application
of the Additional Protocol. On a number of occasions, it has found
that the complaints of transferred sentenced persons were manifestly
ill-founded or incompatible ratione materiae.
The proposed changes in the draft protocol amending the Additional
Protocol introduce just a few new elements to improve the practical
application of the Convention. Overall, they have been carefully
drafted by the European Committee on Crime Problems (CDPC) and its
Committee of Experts on the Operation of European Conventions in
the Penal Field (PC-OC) under the supervision of the Committee of
Ministers, and are fully justified. They should in practice help
rationalise and modernise the Additional Protocol to the Convention
on the Transfer of Sentenced Persons and they should all be welcomed.
