Under this system, a sentenced person is transferred to another State to serve his or her sentence there. Any person who has been sentenced to a penalty that de- prives his or her liberty can be transferred. For instance, both adults sentenced to a prison sentence and minors sentenced to a custodial measure.
The request for transfer can be made by the sentenced person or by the Spanish judicial authority, or by the judicial authority of the state to which the sentenced person is to be transferred. In order to be able to transfer a sentenced person, the following requirements must be met:
If the sentenced person is in a country that has ratified the 1983 Strasbourg Convention on Sentenced Persons, the transfer has clear guidelines to follow.
According to the agreement, the requirements and the form to be fulfilled are as follows:
However, the transfer would not take place automatically, but would have to be agreed by both States. In most cases, however, this is usually the case.
If the prisoner is serving a custodial sentence in a country that has not acceded to the 1983 Strasbourg Convention on the Transfer of Sentenced Persons, it should be examined whether our country has signed a bilateral agreement with the country in question and abide by that agreement.
In the absence of any international convention or agreement on the transfer of sentenced persons, the transfer should be requested through diplomatic channels.
In Spain there are different judicial bodies that can intervene in a transfer. When it is intended to transfer a convicted person in Spain to another country, the competent body in this matter is the Penitentiary Surveillance Judge if the convicted person has already started serving his sentence; if they have not yet started serving their sentence, the sentencing Judge or Court can also decide on the transfer.
If the intention is to transfer to Spain a convicted person sentenced in another country, then the competent body to decide on the transfer is the Central Criminal Court, and to enforce the sentence once the convicted person is in Spain, the Central Prison Supervision Judge.
The executing State will have to check that none of the grounds for refusal provided for in the Law apply. There are different grounds for refusal: some are mandatory and others optional. In the first case, the judge of the executing State must necessarily refuse the transfer, and in the second case, the judge may assess the transfer and decide whether to refuse or accept it:
Once the State of enforcement (the State to which the sentenced person is to be transferred) has given its consent to the person being transferred to serve the sentence there, there is a maximum period of thirty days for the transfer to take place. As an exception, if due to unforeseen circumstances it is not possible to carry out the transfer within this period, a new date can be agreed, and from that date there is a maximum of ten days to transfer the convicted person.
Once a person is transferred, the prison regime of the executing state applies. For example: a Spaniard was sentenced in another country, and is transferred to Spain to serve their sentence here. If the length of the sentence exceeds that provided for in Spanish law, then the judge will be able to adapt the sentence to the maximum provided for in Spanish law. In short, the Judge of the state of enforcement is the one who makes the decisions regarding the prison situation of the convicted person, including the possible granting of conditional release.