AS TO THE ADMISSIBILITY OF
Application no. 28578/03
by Ernő SZABÓ
The European Court of Human Rights (Second Section), sitting on 27 June 2006 as a Chamber composed of:
J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 26 August 2003,
Having regard to the partial decision of 26 October 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the AIRE Centre, London,
Having deliberated, decides as follows:
The applicant, Mr Ernő Szabó, is a Hungarian national who was born in 1953. He is currently serving a prison sentence in Hungary. He was represented before the Court by Mrs L. Farkas, a lawyer practising in Budapest. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 December 2000 the Malmö District Court (tingsrätten) convicted the applicant of committing a drugs offence with aggravating circumstances and of attempting to commit a drug smuggling offence with aggravating circumstances on 21 September 2000, and sentenced him to ten years’ imprisonment. The court also ordered that he be permanently expelled from Sweden.
On 6 February 2001 the Skåne and Blekinge Court of Appeal (hovrätten) upheld the judgment of the District Court. The applicant did not appeal against the appellate court’s judgment, which accordingly became legally binding on 6 March 2001.
On 26 March 2001 the National Prisons and Probation Authority (Kriminalvårdsmyndigheten) determined the period during which the applicant was to remain in prison. It noted that he had begun to serve his sentence on 6 March 2001 and that the last day of the prison term, having regard to the total period spent in detention, would be on 22 September 2010. The Authority further determined that the applicant would be eligible for conditional release on 25 May 2007 at the earliest.
On 15 August 2002 the National Prisons and Probation Administration (Kriminalvårdsstyrelsen, hereafter “the Administration”) declared its intention to make a request to the applicant’s country of origin, Hungary, for him to serve the remainder of his sentence there.
The applicant declared on 2 September 2002 that he did not consent to such a transfer.
On 2 October 2002 the Administration requested the transfer of the applicant to Hungary under the Convention on the Transfer of Sentenced Persons (hereafter “the Transfer Convention”) and its Additional Protocol. On 4 November 2002 the Swedish Ministry of Justice forwarded this request to the Hungarian Ministry of Justice.
In an order dated 13 December 2002 the Budapest Regional Court decided that the conditions for taking over enforcement of the Swedish sentence were met.
On 8 January 2003 the Hungarian Ministry of Justice informed its Swedish counterpart that the Minister of Justice had approved the transfer of the applicant to Hungary, that the competent Hungarian court had converted his sentence into ten years’ imprisonment in conformity with Hungarian law and that he would be eligible for conditional release on 22 September 2008 at the earliest.
On 14 July 2003 the Administration made a final decision on the applicant’s transfer to Hungary. It stated that, since the applicant’s expulsion had been ordered and he would most probably be expelled to Hungary, there were grounds under the Transfer Convention and the Additional Protocol for the applicant to serve the remainder of his sentence in Hungary.
The applicant appealed against the decision to the Government, stating, inter alia, that he would be serving a longer sentence in Hungary and that he would be placed in a “higher security prison” where the conditions would be much more severe than those in Swedish prisons.
On 4 September 2003 the Administration confirmed its decision.
On 25 September 2003 the Swedish Government, stating that it shared the Administration’s conclusion, dismissed the applicant’s appeal.
The applicant was transferred to a Hungarian prison on 28 October 2003.
The applicant was summoned to appear before the Budapest Regional Court, sitting as a first-instance court, on 8 January 2004. On that date a single judge decided that the applicant’s sentence was to be converted into ten years’ imprisonment under Hungarian law, to be served under a strict prison regime (fegyház). The effect of the latter condition was that he would become eligible for conditional release after having served four-fifths of the sentence. The applicant appealed against that decision and requested to serve his sentence under a normal prison regime (börtön), which would have made him eligible for release on parole at an earlier date. On 17 February 2004 the Budapest Regional Court, sitting as a chamber of three judges at second instance, dismissed the appeal. The Hungarian courts did not make any fresh assessment of the applicant’s guilt but accepted the Swedish courts’ findings as to the facts of the case.
B. Relevant domestic and international law
1. Swedish penal law
Section 3 of the Drug Offences Act (Narkotikastrafflagen; 1968:64) provides that anyone who commits a drugs offence with aggravating circumstances shall be liable to between two and ten years’ imprisonment. In addition, under section 3 of the Smuggling of Goods (Penalties) Act (Lagen om straff för varusmuggling, 1960:418), which was in force at the material time, the same range of prison sentences applied in respect of drug smuggling with aggravating circumstances. With regard to attempted offences, the latter Act referred to chapter 23 of the Penal Code (Brottsbalken, 1962:700), section 1 of which stipulates that the punishment for an attempted offence shall not exceed the applicable penalty for a complete offence and shall not be less than imprisonment if the penalty for a complete offence is two or more years’ imprisonment.
2. Swedish rules on conditional release
Pursuant to section 20 of the Term of Imprisonment (Calculation) Act (Lag om beräkning av strafftid m m, 1974:202), the National Prisons and Probation Administration determines the expiry date of the prison term for a person who has started serving a sentence. If the sentence exceeds one month’s imprisonment, the Administration must also determine the earliest date of conditional release. It further sets the probationary period, which, in accordance with chapter 26, section 10, of the Penal Code, corresponds to the remaining portion of the sentence but cannot be less than one year.
Chapter 26, section 6, of the Penal Code provides that a person sentenced to imprisonment shall, as a rule, be conditionally released when he or she has served two-thirds of the sentence.
Under chapter 26, section 7, of the Penal Code, if the sentenced person breaches to a significant extent the conditions for serving the sentence, the date of release on parole can be postponed to a later date, but not by more than 15 days on any one occasion.
The preparatory work in respect of the latter provision (Vissa reformer av påföljdssystemet, 1997/98:96) states that “to a significant extent” means that release may be postponed only for the more flagrant breaches and that a general assessment of whether the inmate has misbehaved is not sufficient. Incidents such as escape or attempts to escape, refusal to work, contact with drugs, drunkenness and threats or violence towards other inmates or a civil servant are examples of cases entailing a postponement of a prisoner’s conditional release. No postponement is to be ordered, however, if the breach results in a criminal indictment.
Chapter 26, sections 11-23, of the Penal Code provide that certain restrictions and supervision by a probation officer may be imposed during the probationary period on a person who has been conditionally released. If the person breaches his obligations during that period, he may forfeit all or part of his conditional liberty.
The Execution of Criminal Verdicts (International Co-operation) Act (Lag om internationellt samarbete rörande verkställighet av brottmålsdom, 1972:260) is based, inter alia, on the Transfer Convention and its Additional Protocol. Under the Act, an appeal lies to the Government against a decision of the Administration concerning any issue other than the appointment of officially assigned counsel.
3. The Convention on the Transfer of Sentenced Persons and the Additional Protocol thereto
The objectives of the 1983 Transfer Convention (European Treaty Series, ETS, No. 112), including its 1997 Additional Protocol (ETS No. 167), are to develop international co-operation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons. According to the Preamble to the Transfer Convention, these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society.
Article 3 § 1 of the Transfer Convention enables the transfer of a sentenced person from “the sentencing State” to “the administering State” provided, inter alia, that the person in question is a national of the administering State; that he or she (or in some instances a legal representative) consents to the transfer; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and that the sentencing and administering States both agree to the transfer.
Article 9 of the Transfer Convention (“Effect of transfer for administering State”) provides:
“1. The competent authorities of the administering State shall:
a. continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or
b. convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.
2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...”
Article 10 of the Transfer Convention (“Continued enforcement”) provides:
“1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.
2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”
Article 11 of the Transfer Convention (“Conversion of sentence”) provides:
“1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:
a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction;
c. shall deduct the full period of deprivation of liberty served by the sentenced person; and
d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.
2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”
Article 3 of the Additional Protocol (“Sentenced persons subject to an expulsion or deportation order”) provides:
“1. Upon being requested by the sentencing State, the administering State may, subject to the provisions of this Article, agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.
Article 7 of the Additional Protocol (“Temporal application”) provides:
“This Protocol shall be applicable to the enforcement of sentences imposed either before or after its entry into force.”
Article 21 of the Transfer Convention contains a similar provision on temporal application.
The Explanatory Report to the Additional Protocol recalls in paragraph 30 that persons may be expelled only subject to the provisions laid down in Article 1 of Protocol No. 7 to the European Convention on Human Rights.
The Additional Protocol entered into force in respect of Sweden on 1 March 2001 and in respect of Hungary on 1 September 2001.
The applicant complained that his transfer to Hungary with a view to serving the remainder of his sentence in that country resulted in a de facto sixteen-month increase in his term of imprisonment. He relied on Articles 9, 11 and 14 of the Convention and Article 1 of Protocol No. 12 to the Convention.
In his application, the applicant relied on Articles 9, 11 and 14 of the Convention and Article 1 of Protocol No. 12 to the Convention. The Court has found, however, that the complaint concerning the longer de facto term of imprisonment in Hungary falls to be considered under Article 5 of the Convention. It has also examined of its own motion whether the application raises issues under Articles 6 and 7 of the Convention.
1. The applicant complained that in Hungary he would have to serve a longer de facto period of imprisonment than if he had served his sentence in Sweden. The complaint is examined under Article 5 of the Convention, the relevant parts of which read as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court; ...”
The respondent Government submitted that this complaint was manifestly ill-founded. They stated that the applicant’s deprivation of liberty in Hungary had its basis in the conviction by the Swedish courts and that the Swedish judgments and decisions were “lawful” and had been adopted “in accordance with a procedure prescribed by law”. The application by the Hungarian authorities of the Hungarian rules on conditional release related to the enforcement of the sentence and did not have any bearing on the lawfulness of the applicant’s deprivation of liberty. The Government maintained that the purpose of Article 5 § 1 - to protect the individual against arbitrary detention - had not been thwarted in the present case and that there was a sufficient causal connection between the conviction and the deprivation of liberty.
The Government further argued that the States adopting the Transfer Convention and its Additional Protocol had been aware that there were differences in their legal systems with regard to the enforcement of criminal judgments and that there was nothing in these instruments which prevented an administering State from applying stricter rules on conditional release than the sentencing State. Moreover, should the transfer of sentenced persons require that both States involved apply similar provisions of law with respect to conditional release, the objectives of the Transfer Convention and the Additional Protocol would be frustrated and the transfer of sentenced persons to their native countries would, in many cases, be impossible. In the Government’s view, this would not further the social rehabilitation of such persons, especially in cases like the present where the sentenced person would not be allowed to remain in the sentencing State following release from prison.
The applicant claimed that there had been a breach of Article 5 § 1. Referring to Article 11 § 1 (d) of the Transfer Convention, under which the competent authority of the administering State, when converting the sentence, must not aggravate the penal position of the sentenced person, he contended that the penal position did not simply concern the sentence imposed but also the kind of sanction to be enforced. Given that conditional release was automatic in Sweden after two-thirds of the sentence had been served, unless the convict committed a more serious disciplinary offence, the de facto term of imprisonment in a Swedish prison did not correspond to that of a Hungarian strict prison regime, where four-fifths of the sentence had to be served before conditional release could be ordered. Moreover, the latter decision, taken by a prison judge, was dependent on the initiative of a prison governor.
The applicant further submitted that the conditions under which he had to serve the sentence in Hungary had to be taken into account as part of his penal position, and that the regime in Hungary was stricter than in Sweden. In that connection, he contended that the prison conditions played a crucial part in the successful rehabilitation of a convict and that, despite his geographical proximity to his wife and children, his position in Hungary was altogether inferior to that which would have obtained in Sweden.
Finally, given that the decision on his transfer to Hungary had been taken by the Swedish Government, the applicant submitted that his prolonged detention had been the result of a procedure which had not provided the safeguards necessary in cases that might result in the deprivation of liberty.
The Court notes that, under Swedish law, the date set for a prisoner’s release on parole may be postponed in certain circumstances. Nevertheless, the applicant had a reasonable expectation of being released in Sweden after having served two-thirds of his ten-year prison sentence, that is, after six years and eight months. As a consequence of his transfer to Hungary and the decision of the Budapest Regional Court of 17 February 2004, he will be eligible for release on parole following the completion of four-fifths of that sentence, that is, after eight years. Thus, while his sentence has not been increased as a matter of law, the fact remains that in Hungary he is likely to have to serve a term of imprisonment which is one year and four months longer than if he had served his sentence in Sweden.
The question is whether the applicant’s transfer to Hungary, with the resulting longer de facto term of imprisonment, has involved a violation of Article 5.
The applicant’s deprivation of liberty falls to be examined under paragraph 1 (a) of Article 5. There can be no doubt that his conviction in Sweden was pronounced by a competent court within the meaning of that provision or that the relevant judgments were in conformity with the procedural and substantive rules of Swedish law. As established by the case-law of the Court, however, the word “after” in Article 5 § 1 (a) does not simply mean that the detention must follow the “conviction” in point of time: in addition, the detention must result from, follow and depend upon or occur by virtue of the “conviction”. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see, among other authorities, Weeks v. the United Kingdom, judgment of 2 March 1987, Series A no. 114, p. 23, § 42).
The enforcement of the applicant’s sentence is based on his conviction in Sweden. The Hungarian courts converted the sentence into the same term of imprisonment under Hungarian law, without making any fresh assessments as to the facts of the case or the applicant’s guilt. Consequently, there is a sufficient causal connection between the conviction and the deprivation of liberty in Hungary.
However, the Court must also satisfy itself that there has been no arbitrariness. As it has repeatedly held, no deprivation of liberty which is arbitrary can be regarded as compatible with Article 5 (see, among other authorities, Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, pp. 21-22, § 40). In assessing the question of arbitrariness, it reiterates that the Convention cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account (see, mutatis mutandis, Loizidou v. Turkey (merits), judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2231, § 43). The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI). In the present situation the Court must, in particular, take into account the Transfer Convention and its Additional Protocol.
The Convention does not require the Contracting Parties to impose its standards on third States or territories. To lay down a strict requirement that the sentence served in the administering country should not exceed the sentence that would have to be served in the sentencing country would also thwart the current trend towards strengthening international cooperation in the administration of justice, a trend which is reflected in the Transfer Convention and is in principle in the interests of the persons concerned (see Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, pp. 34-35, § 110). Accordingly, the possibility of a longer period of imprisonment in the administering State does not in itself render the deprivation of liberty arbitrary as long as the sentence to be served does not exceed the sentence imposed in the original criminal proceedings.
Nevertheless, the Court does not exclude the possibility that a flagrantly longer de facto term of imprisonment in the administering State could give rise to an issue under Article 5, and hence engage the responsibility of the sentencing State under that Article. However, the sentencing State could only be responsible for consequences which were foreseeable at the time when the transfer decisions were taken.
As has been noted above, following the applicant’s transfer to Hungary he is likely to serve eight years of his ten-year prison sentence, whereas he could have expected to serve six years and eight months of that sentence in Sweden. While the difference of one year and four months certainly cannot be considered insignificant, the time he will serve still remains well within the sentence imposed. Moreover, the likely additional period of detention in Hungary corresponds to 20% of the time he could have expected to serve in Sweden. In these circumstances, the Court finds that the longer de facto term of imprisonment is not so disproportionate that it will entail a breach of Article 5.
Furthermore, this conclusion is not altered by the fact that, as the applicant claimed, the prison conditions may be stricter in Hungary than in Sweden. In this connection the Court reiterates that, in its decision of 26 October 2004, it declared a similar complaint, submitted by the applicant under Article 3 of the Convention, inadmissible as being manifestly ill-founded.
Accordingly, having regard to all the circumstances of the case, the Court finds no appearance of a violation by the respondent State of the applicant’s rights under Article 5 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The Court notes that the sentence which the applicant will actually have to serve, upon his transfer to Hungary, is longer than the one provided for by Swedish law. Furthermore, the final decision regarding the applicant’s transfer to Hungary was taken by the Swedish Government. The Court has examined whether the case raises an issue under Article 6 § 1 of the Convention. The relevant parts of this provision read as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
The Government submitted that the impugned transfer proceedings had not involved a determination of either the applicant’s civil rights and obligations or of any criminal charge against him. They also maintained that the issue of conditional release had concerned the enforcement of a sentence and had not been part of the sentencing of the trial courts. Accordingly, Article 6 § 1 did not apply in the present case.
Should the Court conclude, however, that Article 6 § 1 was applicable, the Government contended that there was no reason to call into question the fairness of the domestic criminal proceedings. The fact that the applicant might be deprived of his liberty for a longer period as a result of the transfer did not affect the fairness of those proceedings but related to the enforcement of the sentence for which the Hungarian authorities were responsible. The Government acknowledged, however, that the applicant had not been able to challenge the lawfulness of his transfer before a Swedish court.
The applicant contended that, in deciding on his transfer to Hungary, the Swedish authorities had indeed determined a criminal charge against him, in the course of which he had been entitled to a hearing before a tribunal. He asserted that his case was similar to extradition proceedings, where the determination of criminal charges was indirectly in question. The Swedish authorities had been aware that his transfer would have a detrimental effect on the terms of his imprisonment and result in his penal position being reassessed by the Hungarian courts.
Indisputably, the procedure leading up to the applicant’s transfer had not involved a court hearing. Indeed, he had not been heard at all. He therefore maintained that Article 6 § 1 had been breached.
Reiterating its above-stated conclusions with regard to Article 5 of the Convention, the Court finds nothing to indicate that the criminal proceedings in Sweden leading to the applicant’s conviction failed to meet the requirements of Article 6. The question is whether the subsequent transfer proceedings, affecting the applicant’s expectations as to conditional release, involved a breach of the latter provision. In assessing this issue, it must first be determined whether Article 6 § 1 is applicable to the impugned decisions relating to the transfer.
The Court notes that the applicant’s transfer to Hungary was possible partly on account of the fact that his criminal conviction contained an order for his expulsion from Sweden, such an order being a precondition for a transfer under the Additional Protocol to the Transfer Convention. The Court has consistently held, however, that Article 6 § 1 does not apply to proceedings concerning expulsion or extradition, as decisions regarding the entry, stay and deportation of aliens do not concern the determination of civil rights or obligations or of a criminal charge, within the meaning of that Article (see, among other authorities, Maaouia v. France [GC], no. 39652/98, §§ 33-41, ECHR 2000-X, and Sardinas Albo v. Italy (dec.), no. 56271/00, 8 January 2004).
As noted above, with regard to Article 5 of the Convention, the applicant’s transfer is likely to delay the date of his conditional release and may, as claimed by the applicant, subject him to harsher prison conditions. However, the Convention does not confer the right to such release or the right to serve a prison sentence in accordance with a particular regime. Nor does it require that parole decisions be taken by a court. Furthermore, questions of conditional release relate to the manner of implementation of a prison sentence. This conclusion is supported by several provisions of the Transfer Convention and its Additional Protocol, which indicate that a transfer is seen as a measure of enforcement of a sentence. Under the Court’s case-law, proceedings concerning the execution of a sentence are not covered by Article 6 § 1 of the Convention (see, among other authorities, Aydin v. Turkey (dec.), no. 41954/98, 14 September 2000).
In this connection, it is further to be observed that the additional period of imprisonment resulting from the applicant’s transfer is not a consequence of his having received a penalty in fresh criminal or disciplinary proceedings and that, consequently, the present case can be distinguished from that of Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, ECHR 2003-X, p. 101).
Lastly, the Court notes that neither the Transfer Convention nor its Additional Protocol stipulates that proceedings relating to a transfer should meet the requirements of Article 6 of the Convention. Thus, for example, Article 9 of the Transfer Convention provides that the administering State may decide on the enforcement of the sentence in accordance with its own laws through either a judicial or an administrative procedure. Furthermore, the Explanatory Report to the Additional Protocol states that persons may be expelled only where the conditions laid down in Article 1 of Protocol No. 7 to the Convention are met. In contrast, it does not refer to Article 6 of the Convention.
Having regard to what has been stated above, the Court finds that Article 6 is not applicable to the transfer decisions in issue.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
3. The Court further notes that the crime of which the applicant was convicted was committed on 21 September 2000, at a time when the Additional Protocol to the Transfer Convention had not yet been ratified by Sweden. The Court has examined whether the applicant’s transfer to Hungary raises an issue under Article 7 of the Convention. This Article provides:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
The Government maintained, firstly, that this issue had not been raised either in form or in substance before the Swedish authorities and that, accordingly, the domestic remedies had not been exhausted. They further submitted that Article 7 of the Convention was not applicable in the present case and that, in any event, it had not been breached. They argued that the decisions on conditional release that had been taken and those that might be taken in the future by the Hungarian authorities did not constitute any additional “penalty” but related to the enforcement of the sentence imposed. Moreover, Article 7 of the Additional Protocol to the Transfer Convention stated that the Protocol was applicable to the enforcement of sentences imposed either before or after its entry into force.
The applicant claimed that, when objecting to the transfer, he had expressed the fear of double jeopardy in relation to the risk of a longer and more severe prison term. He therefore asserted that he had raised the issue under Article 7 of the Convention in the domestic proceedings. He further submitted that the Court’s assessment had to go beyond appearances. Because of the consequences of the transfer order, which were more far-reaching than those to which he had been exposed at the time of the commission of the offence, his transfer had to be considered as amounting to a “penalty” within the meaning of Article 7. As regards the temporal application of the Transfer Convention and its Additional Protocol, the applicant lastly argued that it was for the Court to decide under Article 7 of the Convention whether the impugned decisions had contributed to a heavier penalty than that applicable at the time of the commission of the offence and that that assessment was not dependent on the wording of the transfer instruments.
The Court first finds that it need not determine whether the applicant exhausted domestic remedies as, in any event, the present complaint is inadmissible for the following reasons.
The relevant part of Article 7 is the second sentence of the first paragraph which prohibits the imposition of a heavier penalty than the one that was applicable at the time the criminal offence was committed. The concept of a “penalty” in this provision is autonomous. To render the protection offered by Article 7 effective, the Court must remain free to go beyond appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see, among other authorities, Welch v. the United Kingdom, judgment of 9 February 1995, Series A no. 307, p. 13, § 27, with further references).
As the applicant objected to serving the remainder of his sentence in Hungary, his transfer to Hungary was effected by application of the Additional Protocol to the Transfer Convention, Article 3 § 1 of which allows for a transfer without the sentenced person’s consent. That Protocol entered into force with respect to Sweden on 1 March 2001, whereas the offence in respect of which the applicant was transferred for the purpose of serving his sentence had been committed about five months earlier, on 21 September 2000. However, notwithstanding the fact that the Protocol was not in force at the time of the commission of the offence in question, under the terms of Article 7 of the Protocol it was still applicable to any enforcement of the sentence taking place after its entry into force.
Even so, of greater importance for the examination under Article 7 of the Convention is the question whether the applicant’s transfer or, more specifically, its implications for his conditional release may in any way be considered as amounting to a “penalty” within the meaning of that provision. The Court reiterates its above finding under Article 6 of the Convention that questions of conditional release concern the enforcement of a sentence. It also notes that the above-mentioned Article 7 of the Additional Protocol, as well as several other provisions of that Protocol and the Transfer Convention, speak of the enforcement of sentences with clear reference to transfer decisions.
Moreover, the “penalty” for the purposes of Article 7 of the Convention which was imposed on the applicant is the ten-year prison sentence decided by the Swedish courts. This penalty did not exceed the maximum punishment under the relevant provision of the Penal Code, nor has any additional penalty been imposed by virtue of the decisions taken by the Swedish and Hungarian authorities with regard to the transfer. It should further be noted that a primary objective of the transfer of a sentenced foreigner to his native country is to further his social rehabilitation.
In these circumstances, the Court cannot find that the transfer of the applicant to Hungary was penal in character or that the transfer decisions could be regarded as amounting to a “penalty” within the meaning of Article 7 of the Convention for any other reasons.
It follows that this complaint is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.