Prisoner Transfers

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:

  • The sentenced person must be in Spain or in the state of enforcement (this is the State to which he or she intends to be transferred to serve the sentence).
  • The sentenced person must consent to the transfer. For this purpose, a hearing is held before the judge, where the sentenced person will attend accompanied by his or her lawyer to express his or her or her willingness to serve the sentence in a particular country. This procedure is not necessary when the State to which the person wishes to be transferred is, for example, that of the nationality of the convicted person, where he or she habitually resides or where he or she has family, work or professional ties.
  • There must not be any conviction pending to become final in relation to the convicted person.
  • The Spanish judicial authority must consider that the fact that the sentenced person is serving the sentence in the other state will contribute to achieving the objective of facilitating the social reintegration of the sentenced person.

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.

Strasbourg Convention on the Sentenced Persons:

According to the agreement, the requirements and the form to be fulfilled are as follows:

  • The Spanish convicted person must be serving a sentence by virtue of a final judgment and must still have more than six months remaining to serve, except in exceptional situations.
  • The acts that gave rise to the conviction or if they were committed in Spain must be classified as a crime in Spain (country of enforcement), unless the transfer is from another member state of the European Union.
  • The request must be made in writing by the Spanish Ministry of Justice to the Ministry of Justice of the State where the sentence is being served. Howe- ver, it is also possible for the request to be made in reverse, i.e. directly by the sentenced person informing the state where he or she is serving their sentence.

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.

Bilateral agreements:

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.

Lack of agreements:

In the absence of any international convention or agreement on the transfer of sentenced persons, the transfer should be requested through diplomatic channels.

The process:

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.

Refusal of Transfer:

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:

  • Example of mandatory refusal: A Spaniard is convicted in another country for specific acts, and wants to serve that sentence in Spain; but in Spain they have already been convicted for the same acts. In this case, Spain will obliga- torily refuse the transfer, because there is a mandatory ground for refusal.
  • Example of optional refusal: A Spaniard is sentenced in another country for acts committed in Spanish territory, and wants to serve this sentence in Spain. The Spanish judge can accept or refuse the transfer depending on the specific circumstances of the case, because there is an optional ground for refusal.

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.