Transfer of Sentenced Persons

Transfer of Sentenced Persons

The transfer allows a person convicted in one state to serve their sentence in their state of origin or residence. It aims to promote the social rehabilitation of the convicted person.

Legal Framework

The transfer is governed by:

1. The Council of Europe Convention on the Transfer of Sentenced Persons (1983)
2. Its Additional Protocol (1997)
3. The IMAC (art. 94-108)

Conditions for Transfer

The transfer may be granted if:

1. The sentenced person is a national of the state to which the transfer is requested (or resides there)
2. The judgment is final and enforceable
3. The remaining sentence is at least six months
4. The offence is also punishable in the executing state (dual criminality)
5. The sentenced person consents to the transfer (except under the Additional Protocol)

Procedure

The request may come from the sentencing state, the executing state or the sentenced person. In Switzerland, the FOJ is the competent authority. It consults the cantonal authorities before making its decision.

Adaptation of the Sentence

The executing state may adapt the sentence to its national law, within the limits of the sentence pronounced. The sentence may not be aggravated. If the sentence pronounced abroad exceeds the Swiss maximum, it is reduced to that maximum.

Effects of the Transfer

After the transfer:

1. The sentencing state may no longer enforce the sentence
2. The executing state is bound by the finding of facts and the legal nature of the offence
3. Pardon or amnesty may be granted by either state

Involuntary Transfer

The 1997 Additional Protocol allows, under certain conditions, the transfer without the consent of the convicted person, particularly where the person is subject to an expulsion order.