SZABO v. SWEDEN
Inadmissible
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. 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. 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. 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. 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.