How foreign criminals are transported abroad

By Alexandros Clerides

The transfer of prisoners between countries is more than frequent with Cypriots who are sentenced abroad and want to serve their sentence in Cyprus, and foreigners who are sentenced in Cyprus and want to be transferred to their own country or any other countries they are somehow connected to.

All transfers, regardless of country and case, are based on the prisoner transfer regulations as found in the “International Transfer of Sentenced Persons” manual of the United Nations, UNODC – United Nations Office on Drugs and Crime. As one can immediately detect within the specific manual, the prisoner himself must first agree to the transfer, unless we are talking about a deportation procedure. In the deportation proceedings, regardless of the detainee’s opinion, the country issues relevant decrees for specific reasons that allow it to deport the detainee with the difference, however, that in such cases the deporting country does not request the cooperation of the country that will receive the person in question.

In contrast to the above, the transfer of the prisoner for the purpose of serving his sentence at the receiving country and vice versa, requires cooperation between the two states. This cooperation has been agreed through multilateral agreements, or bilateral agreements, or in the absence of the above on a case-by-case basis.

We have multilateral agreements, for example the European Convention on the Transfer of Criminals 21.III.1983 and framework decision 2008/909/JHA which all the member states of the European Union have signed as well as other countries that are not within the European Union with a total of more than 66 countries.

Another example of a multilateral agreement is the Inter-American Convention on Serving Criminal Sentences Abroad which has been signed by over 41 countries. Within the framework of these agreements there is mutual respect between the signatory countries for the rules found in the text of the agreement regarding the transfer of prisoners. If the countries are not located in these agreements, then there are (in some cases) direct agreements between the states, bilaterally.

In all cases, as we mentioned above, the basic principles are those found in the United Nations manual. The country that has the person and will deport them must agree to send the person, and the country that will receive the person must again agree to receive them. Issues that arise are whether the offence for which the person is serving a prison sentence is also considered a criminal offence in the receiving country, whether the sentence the convicted is serving is a sentence that can also be served in the receiving country, or whether the court should modify that the person’s sentence be consistent with the national law of the country, whether the person will be treated properly and their rights respected and much more.

The goal is always the best social reintegration (rehabilitation, resocialisation) and for this before the transfer of the person a relevant assessment is made. The person will be transferred to a country where it appears there can be better social reintegration due to language, family, and other criteria concerning the person’s reintegration back into society. Better reintegration means at the same time a reduction in delinquency since the easy adaptation due to the transfer also achieves a reduction in crime.

Therefore, at the individual’s request, a consultation process between the two states is initiated involving the offices of the prosecutors and the ministers of justice to arrange and complete the transfer of the prisoner.

The sooner a transfer can be made, the better the results for the individual himself as well as the wider prison community due to overcrowding and the wider society since there is a better reintegration of the individual.

Alexandros Clerides is a criminal lawyer at Phoebus Ch. Clerides & Associates Ltd