Legal pluralism and the convention on the transfer of sentenced persons in practice: highlighting the jurisprudence of the European Court of Human Rights on the transfer of sentenced persons within and to Europe

Abstract

Many European countries have hundreds of foreign national offenders in their prisons. Foreign national offenders face different problems in prisons; hence, the need for their transfer to their countries of nationality to serve their sentences. All member states of the European Union are states parties to the Convention on the Transfer of Sentenced Persons, which was replaced by Council Framework Decision 2008/909/JHA. However, it is still applicable to the transfer of offenders between some European countries and also between European countries and countries outside Europe. The European Court of Human Rights has developed jurisprudence dealing with the rights of offenders who have been transferred on the basis of the Convention on the Transfer of Sentenced Persons. This jurisprudence shows, inter alia, that before an offender is transferred to serve his sentence, the authorities in the sentencing state have to consider not only their penal laws but also those of the enforcing state – hence legal pluralism. The purpose of this article is to highlight the human rights issues that the Court has dealt with under the Convention on the Transfer of Sentenced Persons. Due to the fact that the Convention on the Transfer of Sentenced Persons has been ratified by countries in Europe and outside Europe, the jurisprudence discussed below is relevant to countries from different parts of the world.