Transfer of Enforcement of Sentence

Regulations on the transfer of enforcement of sentence can be found in the Act on international cooperation in the enforcement of criminal judgments (1972:260). Special acts contain provisions on the transfer of enforcement of sentence to and from the Nordic states and the member states of the European Union.

The main purpose of transferring enforcement of a custodial sentence is to make it easier for the sentenced person to re-adjust to a law-abiding life in the country in which he or she will be living after the release.

A transfer of enforcement of a sentence to Sweden may take place even though the imposed term of imprisonment is more severe than would have been imposed for a similar offence in Sweden. When foreign sentences of this kind are transferred, the Swedish rules for the enforcement of sentences apply, which, among other things, means that a person serving a prison sentence for a set term cannot be conditionally released before two-thirds of the term have been served.

The Act on international cooperation in the enforcement of criminal judgments (1972:260)

The Act on international cooperation in the enforcement of criminal judgments (1972:260) is based on Sweden's accession to the 1970 European Convention on the International Validity of Criminal Judgments and the 1983 Convention on the Transfer of Sentenced Persons. Although application of the Act does not require a general agreement with the other state for enforcement of sentence, in order to be transferable, the Act mainly envisages cooperation with the states which have acceded to one or both of the conventions, or with states with which Sweden has other, bilateral agreements, such as Thailand or Cuba.

Enforcement of a sentence can therefore be transferred even without commitments under a convention or obligations under an agreement, but in such cases the Act requires "extraordinary reasons" for a transfer to or from Sweden.

Transfer of enforcement under the Convention on the Transfer of Sentenced Persons

A request for a transfer of enforcement of sentence can be made by either the state in which the sentence has been pronounced ("sentencing state") or the state which may assume enforcement ("administering state"). A transfer under this Convention is only possible in the case of custodial sentences.

A primary condition, if enforcement is to be possible in Sweden, is that the sentenced person is a Swedish national or is habitually domiciled in this country. In a declaration with respect to the Convention on the Transfer of Sentenced Persons, Sweden has stated that aliens domiciled in Sweden have the same status as Swedish nationals. An additional requirement is that the sentenced person has consented to enforcement of the sentence in Sweden, that the act for which the person has been sentenced corresponds to an offence under Swedish law, and that at least six months of the custodial sentence remain to be served when the request for a transfer is received by the Central Authority or, if not, that there are special reasons why enforcement of the sentence anyway should be transferred to Sweden. The Act does not impose any further requirements.

A transfer of enforcement can come about only if - over and above the consent of the sentenced person (see above) - both the sentencing and the administering state consent to the transfer. Thus it is possible for Sweden to set further requirements in addition to the conditions just mentioned which must be met before a transfer will be allowed. One such requirement, for example, is that the person whose transfer to Sweden is requested has a certain connection to this country. In order to establish the connection with Sweden, the staff of the Swedish embassy in the sentencing country is asked to conduct an investigation and report on the person's connection in this respect.

If the sentence is to be enforced in Sweden, the Government can issue instructions for the continued enforcement in this country or commission the Prosecutor-General to apply to a court to set a new penalty in accordance with Swedish legislation on sanctions for equivalent acts. Sweden usually applies the former procedure and thus takes over enforcement of the foreign sanction. The sentence is enforced in Sweden in accordance with Swedish rules but it may cease to be enforced if, for example, the sentencing country grants a pardon or amnesty or reviews the judgment.

The Additional Protocol to the Convention on the Transfer of Sentenced Persons and the Schengen Convention

The 1997 Additional Protocol to the Convention on the Transfer of Sentenced Persons regulates two different situations where the consent of the person convicted is not required for transfer of enforcement. In the first of these cases, the person convicted has fled to his country of origin before the completion of enforcement (the "flight case"). The other case deals with situations where, in connection with sentencing, the convicted person receives an expulsion order or an equivalent action is decided on because of the offence (the "expulsion case"). The 1990 Convention implementing the 1985 Schengen Agreement (the Schengen Convention) contains equivalent provisions to the effect that consent is not required when a convicted person has fled to his/her home country before the sentence has been enforced.

In connection with Sweden's accession to the Additional Protocol to the Convention on the Transfer of Sentenced Persons, provisions were introduced into the Act on international co-operation in the enforcement of criminal sentences (1972:260), to the effect that enforcement of a sentence involving deprivation of liberty - prison or committal to forensic psychiatric care - may be effected in Sweden without the consent of the person convicted when

1. the person convicted has fled to Sweden before the sentence passed abroad has been enforced, or
2. in connection with the judgment, the person convicted is subject to an expulsion order because of the offence or is prohibited in some other way from remaining in the other state after release.

Correspondingly, if the other country has acceded to one of the above-mentioned conventions that allow for the transfer of enforcement of sentence without the convicted persons consent, Sweden may request that enforcement of a sentence involving deprivation of liberty that has been imposed in Sweden be transferred to the other state. The relevant views of the convicted person may be taken into consideration in the overall assessment carried out when the Government makes its decision in the matter or when a request is made by the Swedish Prison and Probation Service's Head Office or the National Board of Health and Welfare.

Under the provisions of the law, if the convicted person has fled to Sweden from another state before the sanction has been enforced, the Swedish authorities may, at the request of the sentencing country, arrest or detain him/her, impose a travel ban or order him/her to report to the authorities at regular intervals. A decision to impose coercive measures of this kind may also be delivered by the prosecutor or a court of law after a request for the transfer of the sentenced person has been granted.

It should be noted that the Additional Protocol must be applied jointly with the Convention on the Transfer of Sentenced Persons. A request for transfer of enforcement based on the Additional Protocol or the Schengen Convention can only be made by a competent authority in the State where sentence has been passed. It is thus impossible for the Swedish Government to make a request for enforcement in Sweden. On the other hand, Sweden can request enforcement in another country of a sentence passed in Sweden.

Transfer of enforcement under the Convention on the International Validity of Criminal Judgments

There is a very substantial difference between the transfer of enforcement under the Convention on the Transfer of Sentenced Persons and a transfer under the Convention on the International Validity of Criminal Judgments.

A transfer under the Convention on the International Validity of Criminal Judgments may involve custodial measures, fines or confiscation. In the case of a transfer under this Convention, moreover, a requested state is, in principle, obliged to take over enforcement upon request. In addition, a request can only be made by the sentencing state. Judgments rendered in the absence of the accused ("judgments in absentia") can also be transferred.

The Convention on the International Validity of Criminal Judgments is equipped with detailed regulations on the entire procedure, from the submission of a request until the actual transfer of enforcement. If the request is not rejected directly, court proceedings are initiated in which the court first determines whether there is any impediment to a transfer of enforcement, and then, if there is no such impediment, goes on to pronounce a new sanction against the accused.

Transfer of enforcement under the Convention on the International Validity of Criminal Judgments occurs very seldom, due to the fact that only a few states have acceded to this Convention.

Act concerning co-operation with Denmark, Finland, Iceland and Norway on the enforcement of criminal sanctions (1963:193)

In the Nordic region, it is possible to enforce judgments and decisions in criminal cases in a Nordic country other than the sentencing country. The foundation for this co-operation is provided by the closeness of legislative provisions in the different Nordic countries. The Swedish regulations are given in the Act concerning cooperation with Denmark, Finland, Iceland and Norway on the enforcement of criminal sanctions etc. (1963:193).
At the request of the sentencing country, enforcement of a custodial penalty can take place in the country of citizenship or habitual residence of the convicted person. The sentence can also be enforced in the country where the convicted person is living at the time, if this is the most appropriate option in view of the circumstances. The consent of the convicted person to the transfer is not required. If a request for enforcement of a custodial penalty is granted in Sweden, the sanction is converted to imprisonment for the same period of time. The penalty is then enforced as if it had been imposed by a legally binding Swedish judgment.

Nordic cooperation also covers enforcement of confiscation and fines, and the arrangement of supervision of persons who have received conditional sentences or probation in cases of conditional release.

Act on mutual recognition and enforcement of custodial sentences within the European Union (2015:96)

There is also EU legislation concerning transfer of custodial sentences within the union, see the Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.
The Framework Decision has been implemented in Sweden through the act on mutual recognition and enforcement of custodial sentences within the European Union (2015:96) and a supplementary ordinance. The act and the ordinance entered into force on 1 april 2015. According to the law, the Swedish Prison and Probation Service is competent to decide when a foreign judgment is to be recognized and enforced in Sweden and when a Swedish judgment is to be sent to another member state. Sentences concerning prison, committal to forensic psychiatric care and secure youth care may be transferred from Sweden. The act contains provisions regarding the criteria for recognition or transfer of sentences and rules concerning the trial of cases. There are also rules regarding consent from the other member state and the person involved. The decisions by the Swedish Prison and Probation Service may be appealed to court.

Transfer of penalties to and from Thailand

Since 1989, Sweden has had a bilateral agreement with Thailand on cooperation in the enforcement of penal sentences. This agreement differs in certain respects from the 1983 Convention on Transfer of Sentenced Persons. Among other things, only citizens of Sweden and Thailand can be transferred, not foreign citizens habitually resident in Sweden. In addition, a transfer to Sweden cannot occur before the convicted person has served a certain minimum part of the prison term in accordance with Thai legislation; at least four years or a third of the total prison sentence. For a person sentenced to life imprisonment for drugs offences, however, at least eight years of the prison sentence must have been enforced in a prison in Thailand before the Thai authorities can consider the possibility of a transfer. In 2003 a change to the original agreement was agreed upon. The change implies that the executing State can adjust the sentence to the conditions of its own country. However, the sentencing State must accept this adjustment before the person can be transferred.

Application

From Sweden to another state

An application for transfer of enforcement from Sweden to another state is usually initiated by the convicted person him or herself, by submission to the Swedish Prison and Probation Service's Head Office of a request for permission to transfer the enforcement of the penalty from Sweden to the other state. If the Head Office takes a positive position on this request, it is forwarded to the Central Authority, which translates it and sends it on to the other state. If that state agrees to a transfer, the Swedish Prison and Probation Service's Head Office then makes a formal decision on the transfer of enforcement. If, on the other hand, the Head Office rejects a request of this kind and, after an appeal, finds that its negative decision should stand, the appeal and the decision to reject it are sent to the Ministry of Justice for consideration by the Government. The Swedish Prison and Probation Service's Head Office can also refrain from taking a decision of its own in the first place and instead refer the matter directly to the Government for consideration. In this case too, the application is sent to the Ministry of Justice.

An application for transfer of enforcement from Sweden to another state can also be initiated by the other state, which, acting through a competent authority in that state, may either submit an application for transfer to the Swedish embassy or mission in the country concerned for forwarding to the Central Authority in Sweden, or send the application directly to the Central Authority. The Central Authority forwards the request to the Swedish Prison and Probation Service's Head Office, which then considers whether a transfer can be allowed.

A transfer of enforcement from Sweden to a Nordic country is processed and decided on at authority level - by the Swedish Prison and Probation Service's Head Office or the National Board of Health and Welfare - without involving the Central Authority.

From another state to Sweden

An application for transfer of enforcement from another state to Sweden is normally initiated by the convicted person him or herself, by submission to the Swedish embassy or mission in the sentencing country of a request to be allowed to transfer enforcement of the penalty to Sweden. The convicted person can also send a request for transfer of enforcement directly to the Central Authority in Sweden. In both cases the request will be treated in the same way.

An application for transfer of enforcement from another state to Sweden can also be initiated by the other state, which, acting through a competent authority in that state, may either submit an application for transfer to the Swedish embassy or mission in the country concerned for forwarding to the Central Authority in Sweden, or send the application directly to the Central Authority. The Government then considers whether a transfer can be permitted.

A transfer of enforcement from a Nordic state to Sweden is processed and decided on at authority level - by the Swedish Prison and Probation Service's Head Office - without involving the Central Authority.