Transfer of sentenced persons

1. Definition

The European Convention on the Transfer of Sentenced Persons allows a person serving a custodial sentence (sanction or punishment) outside their home state to return to their home state to serve their sentence, subject to the fulfilment of certain conditions. This is intended to serve their reintegration into society. The Convention, however, does not oblige Member States to grant a request for transfer. To date the Convention has been ratified by 57 states, fourteen of which are outside Europe (list of states). It came into force in Switzerland on 1 May 1988.

Switzerland has also signed two bilateral transfer treaties with Thailand and Morocco and a Guarantee of Reciprocity with Barbados.

2. Conditions of transfer

A transfer requires the following conditions, in particular, to be met:

• The judgment must be final and enforceable.
• At least six months of the sentence must still have to be served upon receipt of the request for transfer.
• The criminal offence must be punishable not only in the sentencing state (the state in which the judgment was handed down and where the sentenced person is serving their sentence) but also in the administering state (the home state of the sentenced person, to which they are to be transferred to continue serving their sentence).
• The competent authorities in the sentencing and administering states, as well as the sentenced person, must give their consent to the transfer.

3. Effects of transfer

The Convention provides for two possible methods of determining the length of sentence that the sentenced person still has to serve: Continued enforcement or the conversion of the original judgment into a judgment issued by the administering state.

Switzerland has opted for continued enforcement, in which the foreign sanction is essentially taken over unchanged. The remaining sentence that must be served in Switzerland following the transfer thus corresponds to the sentence period that would still have to be served in the sentencing state. However, if the sanction imposed by the sentencing state is incompatible with Swiss law, the sentence is adjusted to the maximum penalty which may be imposed for the offence in question under Swiss law. Once the transfer has taken place, the enforcement of the sanction is governed by Swiss law (conditions of parole, etc.).

4. Transfer procedure

• The sentenced person communicates their wish to be transferred to the competent authorities in the sentencing or administering state.
• The sentencing and administering states exchange the necessary documentation (personal data, judgment, information on the sentence served to date in the sentencing state and any further sentence to be served in the administering state).
• The authorities of the two states take a decision on the request for transfer on the basis of this information. In Switzerland, the decision regarding transfer is made by the Federal Office of Justice (Extradition Section), in cooperation with the relevant cantonal authorities. The Convention does not oblige Member States to approve a request for transfer, nor does it provide for appeals in cases in which transfers are refused.
• If the transfer is enforceable, the two states will discuss the details of its execution (place and date of transfer).

The transfer process often involves time-consuming enquiries and clarifications and may therefore prove lengthy – generally at least six months.

5. Transfer without the consent of the sentenced person

In the interests of international collaboration on a broader scale, the Additional Protocol to the Transfer Convention provides for a sentence to be executed in the country of origin without the consent or against the will of the sentenced person in two cases.

• If a legally valid expulsion order exists against the sentenced person in the sentencing state, the sentenced person may be handed over to their country of origin to serve out the remainder of their sentence.
• If the sentenced person flees from the sentencing state to their country of origin, thereby seeking to avoid serving their sentence, the country of origin may execute the sentence in place of the sentencing state.

The consent of the country of origin is required in both cases.

Under the terms of the Additional Protocol, a sentenced person must, specifically, be granted a hearing before the courts. In Switzerland, they may object to both transfer to their country of origin and the execution of a foreign sentence. They may seek recourse to the Swiss Federal Criminal Court by lodging an appeal against the extradition request submitted by the Federal Office of Justice at the request of one of the cantons.