Additional safeguards required
in the Transfer of Execution of Sentences Bill 2003
The Human Rights Commission forwarded on 2nd June 2004 its observations on the Transfer of Execution of Sentences Bill 2003 to Mr. Michael McDowell, Minister for Justice, Equality and Law Reform.
The purpose of the Bill as set out in the Explanatory Memorandum is to give effect to the provisions of Article 2 of the Additional Protocol to the 1983 Council of Europe Convention on the Transfer of Sentenced Persons. The main purpose of the Council of Europe Convention is to provide for the transfer of sentenced persons who are in custody and to allow for individuals to serve their sentences within their own societies, a goal set out in the preamble to the Council of Europe Convention and one which the Commission broadly supports. The Additional Protocol to the Convention, developed in 1997, deals with two quite separate issues: the deportation of sentenced persons, and the transfer of execution of sentences of persons who have fled from the sentencing country. The development of the Additional Protocol, and particularly the provisions relating to deportation, have given rise to some concern among human rights groups across Europe as these initiatives appear to be motivated by state security interests rather than humanitarian concern in relation to the family and other rights of sentenced persons.
The present Bill deals only with the scenario where a person who was sentenced in one state absconds to another state and is, therefore, not in custody. The human rights issues arising in relation to the Bill can be separated into two main categories, namely the obligations on the State to protect and guarantee the human rights of persons who might be transferred to another State; and the obligations on the State to ensure the human rights of an Irish person where another country makes a request for the execution of a sentence within Ireland which has been imposed elsewhere.
The President of the Human Rights Commission, Dr. Maurice Manning stated: "The Commission believes that there are a number of areas in the proposed Bill where the Irish legislation can build on the Convention on the Transfer of Execution of Sentences by introducing additional safeguards consistent with the human rights protections contained in Irish constitutional jurisprudence and under international human rights law".
The Commission makes the following recommendations:
– the Bill should include a provision compelling the Minister not to issue a request for execution of a sentence in another State where there are grounds for believing that conditions of detention in the requested state are seriously deficient and are likely to result in the sentenced person being exposed to conditions constituting torture or inhuman or degrading treatment or punishment. The Minister should also have special regard to the family status and the right to family life of the person subject to the relevant sentence.
– in acceding to a request from another country to execute a sentence in Ireland, the Minister should direct in all cases that the term of sentences to be served in Ireland should not be longer than the maximum sentences under Irish law in respect of the corresponding offence at Irish law and the opportunity should be taken in the present Bill to remove the existing discretion of the Minister to request that a higher sentence imposed in another state be imposed.
– additional safeguards should be introduced that evidence be required from the requesting state of the commission of the relevant offence by the person subject of the request for transfer and that the period of 18 days for remand of a person before the production of a certificate is required be reduced to a period of 7 days. The Commission further recommends that explicit reference should be included in the Bill for rights to apply for bail and rights of access to professional legal advice.
– the Bill should be clarified to provide that the High Court must ensure the sentenced person has been afforded an effective right of appeal and/or review of sentence before an order can be made directing the execution of the sentence in Ireland.
A spokesperson from the Commission is available for comment.
For further information, please contact:
Mary Ruddy
Senior Human Rights Awareness Officer
Human Rights Commission
Tel. 01 8589 601
E-mail: info@ihrc.ie
Copies of all Human Rights Commission Submissions can be found on the Commission website: http://www.ihrc.ie
Click here to download Observations on the Transfer of Execution of Sentences Bill (87 KB)