What is it?
International Prisoner Transfer Agreements are legal mechanisms which allow sentenced prisoners to transfer back to their home countries to complete their sentences. The spirit of these arrangements is essentially a humanitarian one: prisoner transfer allows prisoners to complete their sentences close to their families, in their own culture and with adequate access to rehabilitation facilities and preparation for release.
From the point of view of participating states, prisoner transfer brings various benefits. For one thing, it can reduce prison overcrowding. For example, some European countries report a prison population composed of up to 44% foreign national prisoners. Having a large population of foreign national prisoners causes administrative problems for prison systems. As a result, the average cost of incarcerating foreign national prisoners is usually far higher than that of imprisoning their own nationals. The transfer of foreign nationals can therefore ease the financial demands on prison systems; it can also ease prison tensions as cultural differences amongst the prison population can cause hostility and even violence.
On the other hand, states participating in transfer agreements sometimes face moral and economic pressures which make prisoner transfer difficult. Some countries face internal pressure not to allow the transfer of prisoners who are serving sentences for particular types of offence such as the trafficking of drugs or murder. Others find the cost of bringing back their nationals prohibitive.
Prisoners themselves are caught up in these conflicting tensions. They often do not know whether transferring would be to their advantage. Many of those who decide to transfer, encounter so many difficulties that they find they are ultimately unable to transfer.
Different countries carry out the transfer of prisoners through the Council of Europe Convention for the Transfer of Sentenced Persons or through other multi- or bi-lateral agreements.
Advantages and disadvantages of transferring
Difficulties in the transfer process
Lobbying of the CEP Expert Group on Foreign Nationals and other developments
Advantages of transferring
For those who decide to transfer and are ultimately able to do so, the benefits of transfer can be immense:
- Prisoners may find prison conditions in their home country better than those they have experienced overseas.
- Prisoners may find they have better access to work, training or educational opportunities.
- Prisoners tend to find that transfer to their home country helps them to prepare for release.
- Transfer may also bring benefits in terms of prisoners' personal safety and well-being. Many people find the level of violence in prisons in their home country a lot lower than they had been used to abroad.
- Prisoners also value being closer to their family, relieving them of the financial burden of supporting them and the long visiting distances.
Disadvantages of transferring
Nonetheless, there can also be disadvantages that prisoners and those advising them should be aware of:
- Some people have found the prison regime stricter in prisons in their home country than they had been used to abroad
- Some people have found they are treated as high security prisoners when, overseas, they had reached a lower security level in the foreign jail.
- Some prisoners have felt transferring had disadvantaged them in terms of the amount of time they were serving in prison.
- Other prisoners have felt they had lost out on remission earned in prison abroad.
- Transferees generally have to pay the cost of their flight back to prison in their home country.
Difficulties in the transfer process
A number of difficulties are commonly experienced by those involved in prisoner transfer:
The length of the process
The processing of transfer requests is generally lengthy and bureaucratic, with applications often taking at least a year from the submission of the original request to the eventual transfer of the prisoner and sometimes as long as three years.
Lack of clarity about other countries' systems
Problems are also caused by a lack of clarity around other countries' release arrangements. If the states involved in processing a transfer request are not aware of each other's release arrangements, a prisoner may end up serving longer after transfer than if s/he had remained in the country in which s/he was arrested.
Some states interpret the requirement that a prisoner be a "national" most strictly, carrying out enquiries into a prisoner's nationality status as a routine part of the consideration of the application. In addition, some will even require the prisoner to prove that they have close family ties and evidence of prior permanent residence in the country before they will consider approving the request.
Prisoners unable to transfer due to outstanding fines
Common to all countries participating in the Council of Europe Convention is the problem of prisoners unable to transfer due to outstanding fines. This is particularly an issue for prisoners in France where prisoners convicted of trafficking drugs resulting face a customs fine in addition to their custodial sentence. Many prisoners do not even submit an application to transfer as they know there is no prospect of this coming about.
Prisoners serving indeterminate sentences
Many countries also experience difficulties with transfer requests from those serving indeterminate sentences. For these to be considered, the sentences must have been converted to determinate sentences. However, some U.S. states are simply not willing to do this.
State policies and attitudes
Most countries insist there should be no significant reduction in sentence for a transferring prisoner. Moreover, some states will also refuse transfer applications due to the nature of the prisoners' offence.
Prisoners detained under Mental Health Legislation
Some states consider that the Transfer Agreements do not encompass the transfer of prisoners detained under Mental Health Legislation and therefore refuse to consider such prisoners for transfer.
The Cost of Prisoner Transfers
Finally, each transfer requires the receiving state to send out prison officers to collect and accompany the prisoner back to prison in their home country. This has an impact on the resources of the prison whose officers are being sent and has a cumulative effect on the budget of the receiving state. As the number of transfers increases, this may well become more of an issue for many countries.
The CEP Expert Group on Foreign Nationals's lobbying
The CEP Expert Group on Foreign Nationals has been lobbying the Council of Europe for improvements in the operation of the Convention for several years now:
- A delegation presented a summary of our concerns to the Legal Affairs and Human Rights Committee of the Parliamentary Assembly in January 2001. The meeting agreed to circulate a questionnaire to representatives of all countries operating under the Convention. The response to this formed part of the report which was subsequently prepared and forwarded to other Committees for their opinion.
- In June 2001, a representative of the CEP Expert Group on Foreign Nationals appeared before the Committee on Social, Health and Family Affairs who had been asked by the Legal Affairs and Human Rights Committee to give their opinion on the report and recommendations.
- The recommendations were then put before the Committee of Experts on the Operation of European Conventions in the Penal Field. The CEP Expert Group on Foreign Nationals was asked to send representatives to this meeting. The CEP Expert Group on Foreign Nationals' representatives outlined the humanitarian basis of the Convention, its benefit to prisoners, their families and states. They pointed out that while recommendations are useful and can speed up transfers, that political will is needed most of all. States need to co-operate and trust in each other's justice systems.
- The recommendations will be taken to a full plenary session of the Parliamentary Assembly and any recommendations which have been passed will be taken to the Committee of Ministers for further action.
An Additional Protocol to the Council of Europe Convention was introduced in 1997. This Additional Protocol brings in two conditions where prisoners can be transferred without their consent and, as such, presents a radical departure from the spirit of the Council of Europe Convention. It has been signed by twenty-eight members states but has only been ratified by fourteen. It appears unlikely that there will be any movement in the direction of the Additional Protocol in the near future.