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GAZETTE
Transfer of Sentenced Persons
Act, 1995
By Maire R. Whelan BL
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.
Designation
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
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.
Eligibility
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
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
appeal or review pending;
c. there must be a minimum of six
months left to be served (the
Minister for Justice can waive this
requirement in exceptional
circumstances);
d. the prisoner must give his
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.
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.
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