The Gazette 1996

GAZETTE

Transfer of Sentenced Persons Act, 1995

appeal or review pending;

By Maire R. Whelan BL

c. there must be a minimum of six months left to be served (the Minister for Justice can waive this requirement in exceptional circumstances); informed consent in writing to the transfer (in cases of physical or mental infirmity this consent can be given by the prisoner's lawyer); e. the act for which the prisoner is in custody must be an offence in the State to which he wishes to be transferred; f. the sentencing State must consent to the proposed transfer; and g. the receiving State must give its agreement to accept the prisoner. An essential pre-condition to any transfer is tri-partite consent on the part of the sentenced person and the two States concerned. In ratifying the Convention, Ireland has entered a Reservation in relation to applications for inward transfer into the State to regard the degree of closeness of the Applicant's ties with Ireland as a primary consideration. d. the prisoner must give his

The enactment into law recently of the Transfer of Sentenced Persons Act, 1995 enables Ireland to ratify the Council of Europe Convention on the Transfer of Sentenced Persons of 1983 which was signed by Ireland in 1986. To date about 30 countries have signed and ratified this Convention. The Act also brings into effect here the Agreement on the Application among Member States of the European Communities of the Council of Europe Convention of 1987. Ireland is in fact the last EU member state to ratify and enact the Convention. The Convention came into force here on 1 November 1995. The two central elements in the Act are firstly, the right of a foreign national serving a prison sentence in an Irish prison to apply for a transfer out of the State to serve the balance of his sentence in his home-state and secondly, the right of Irish prisoners serving sentences in other Convention countries to request a transfer to Ireland to enable them serve the balance of their sentence close to home. Strictly speaking, if an Irish prisoner is serving time in a country which has not ratified the Convention, he cannot avail of its remedies. However, Section 2 of the Act envisages Ireland concluding bi-lateral arrangements for prisoner transfer with non-Convention States and the Minister for Foreign Affairs is empowered to designate a non-Convention state or territory to be a Convention state for the purposes of the Act. This is an important gesture for the small number of Irish prisoners who are serving sentences in non- Convention countries e.g. Australia, South American states and some Asian countries. Provided the Minister Designation

Máire R. Whelan, BL

for Foreign Affairs exercises his power under section 2 of the Act and designates the country in question a Convention State, the prisoner can then apply for a transfer into the State to serve the balance of his sentence in Ireland. Information Section 3 of the Act imposes a mandatory obligation on the State, as envisaged by the Convention, to give information of his rights under the Act and the Convention to any prisoner sentenced here and who is eligible to apply for a transfer out. Whether applying for a transfer out of or requesting a transfer into the State there are certain criteria which the applicant prisoner must satisfy before the Convention can be invoked; a. the applicant must be a national of the receiving State. An individual Eligibility

Transfer Out

A prisoner who wishes to be transferred to another country must j apply to the Minister for Justice in writing and must show that he : complies with the requirements outlined above.

The number of foreign nationals in Irish prisons at any one time is quite small. However, their repatriation to serve the balance of their sentences abroad will alleviate prison space and off-set the transfer of Irish prisoners here from abroad. 33

may be deemed to be an Irish national if he can show "close- ties" with the State;

b. the sentence imposed must be final and conclusive with no