Overall goals and fundamental rights
Additionally, Belgium has refused a couple of transfers
because of a lack of reintegration prospects for the persons concerned.106 Hungary has refused some transfers
because there was no connection between the sentenced person and the executing state.107 Slovakia has
also refused to execute several judgments – in cases
where the condition of criminality on both sides was
not fulfilled, the time limit had passed, or executing the
sanction was not possible under the laws of the Slovak
Republic. One of the cases concerned an Austrian court
judgment that sentenced a mother to imprisonment
together with her child. In Slovakia, a child cannot be
sent to prison, so the transfer was refused because the
judgment conflicted with Slovakia’s legal order. Slovakia has also refused several requests to execute judgments delivered by German judicial authorities. These
concerned persons sentenced to detention in detention centres; as such centres do not exist in Slovakia,
the state was not able to execute these judgments. 108
Ireland seems to refuse transfers as executing state
frequently. In respect of prisoners requesting transfers into Ireland, grounds for refusal most commonly
fall under one of three categories. First, the transfer
may be refused because there are not sufficient family
ties in Ireland to merit the person’s transfer back to
the country.109 Second, the lack of a similar sentence in
Ireland may result in a refusal.110 For example, prisoners from the United Kingdom may not be transferred
back to Ireland because there is no equivalent sentence
to that imposed in the United Kingdom, although they
are not prohibited from applying.111 A third issue – in
the context of Irish prisoners in the United Kingdom –
is when a prisoner might be released ‘on license.’ No
such regime exists in Ireland. The case of Sweeney v.
Governor of Loughan House112 involved a defendant on
whom the United Kingdom had imposed a 16-year sentence, half of which he was supposed to serve in the
community. In Ireland, he was released after serving 8
years in prison because the country has no equivalent
to the ‘on license’ regime. As a result of this precedent,
there appears, according to anecdotal evidence, to be
a freeze on transfers from the United Kingdom into
Ireland.113 Meanwhile, the United Kingdom has refused
some transfers from abroad based on less than six
months being left to serve, as permitted pursuant to
106 Belgium, Representative of Legalia.
107 Hungary, Representative of the Ministry of Justice.
108 Slovakia, Representative of the Criminal legislation
department in the Ministry of Justice.
109 Ireland, Representative of the Irish Prison Service.
110 Ireland, Transfer of Sentenced Persons Act, 17 July 1995,
Section 7 (5).
111 Irish Council for Prisoners Overseas.
112 Irish Supreme Court (IESC) (2014), Sweeney v. Governor of
Loughan House Open Centre, IESC 42, 3 July 2014.
113 Ireland, Representative of the Irish Council for Prisoners
Overseas.
Article 9 (1) (h) of the Framework Decision on transfer
of prisoners.114
Regarding the Framework Decision on probation and
alternative sanctions, only four states have recorded
refusals. The Czech Ministry of Justice reported cases
where the persons were not found on the territory of
the Czech Republic and it was not possible to deliver
the judgments or start execution.115 The Netherlands
refused to recognise a few probation judgments where
there was not enough evidence that the sentenced persons resided in, or were otherwise connected with, the
Netherlands.116 Similarly, in Ireland, refusals to supervise
probation orders in the state will generally be based on
the lack of sufficient family ties. Generally, if there are
sufficient family ties, a transfer will go ahead. When
no direct equivalent alternative to detention is available in Ireland – for example, Ireland does not commonly impose electronic monitoring, something which
is common in England and Wales – a pragmatic and constructive approach is taken and a coherent (though not
identical) sentence is usually agreed on. The authorities come to an informal arrangement for the order to
be completed in the other jurisdiction.117 The only state
that seems to have records of refusing to execute the
Framework Decision on the ESO is Hungary; however,
no further details are available.
2.4. Visions for improved
mutual trust through
enhanced monitoring
and incentives
Mutual recognition only works well with a sufficient
level of trust between Member States. The necessary
foundation for establishing, maintaining or enhancing
trust includes legal, judicial, penitentiary, probationary, and even social systems that are at least relatively
comparable. How these systems operate must be clear
and transparent.
Effective communication is essential for cooperation,
both in terms of the means of communications used
and the standard of language. Is the ‘school English’ of
a German judge or prison official sufficient to communicate effectively with an Irishman about the alternatives to detention or the comparative elements of the
sanctioning systems in Germany and Ireland? Are interpreters available and providing sufficiently high quality
services for an exchange to be fully understood in both
directions, i.e., between the German officials and the
114 United Kingdom, Representative of NOMS.
115 Czech Republic, Representative of the Ministry of Justice.
116 Netherlands, Representative of the Centre for International
Legal Aid.
117 Ireland, Representative of the Irish Probation Service.
47
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