The Consent Of The Sentenced Person: Disregarded?

The cooperation with regard to transfer of foreign prisoners is an important aspect of inter-state cooperation in criminal matters based on different bilateral and multilateral treaties and agreements. The problem of the transfer of foreign prisoners is one of actuality due to the increase in number of foreign sentenced persons serving sentences in other countries than those of their nationality. The consent of the foreign prisoner subjected to the transfer represents the topic of this essay, namely the lack of his consent in the two cases provided by the Additional Protocol to the Convention on the Transfer of Sentenced Persons, namely when a sentenced person has fled the sentencing State in order to go to the State of his or her nationality, therefore making it impossible in most cases for the sentencing State to execute the sentence passed, and when the sentenced person is subject to expulsion or deportation as an effect of the sentence. It is the opinion of this author that the sentenced person’s consent should be taken into consideration more seriously, and not so easily disregarded by the states. Thus, it will argue that a person should not be transferred if he or she refuses to and the motives expressed are reasonable enough. Within this essay, several issues are going to be discussed, such as: the treatment of foreign prisoners, the treatment of prisoners in Romanian prisons and whether the existence of an expulsion measure automatically attracts the admission of the request for transfer of the convicted person, with the corresponding reference to case-law and (inter)national legal instruments (the Convention on the Transfer of Sentenced Persons, the European Convention on the International Validity of Criminal Judgments, and Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Council Framework Decision 2008/909/JHA of 27 November 2008, Law No. 302/2004 on International Judicial Cooperation in Criminal Matters and O.G. No. 92 of 30 August 1999 through which Romania ratified the Additional Protocol to the Convention on the Transfer of Sentenced Persons).