CEDH · CASELAW;CLIN;ENG — 15 mars 2005

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Finland (dec.) - 38704/03 Decision 15.3.2005 [Section IV] Article 5 Article 5-1 Lawful arrest or detention Transfer of prisoner to his country of origin where he might be released on parole later than in the respondent State: inadmissible   The applicant, an Estonian, had begun serving a nine-year prison sentence in Finland following his conviction there. An expulsion order was subsequently served on him. The Finnish Ministry of Justice ordered his transfer to Estonia to serve the rest of his sentence there, basing itself on domestic law enacted so as to render applicable the Additional Protocol to the Convention on the Transfer of Sentenced Persons (European Treaty Series no. 167; for “the Transfer Convention”, see ETS no. 112). The Ministry of Justice considered, inter alia , that the applicant did not have particular bonds with Finland and that he had closer social ties to his country of origin than to Finland. The applicant appealed to the Administrative Court, arguing that in Finland it would be possible for him to be released on parole in July 2005 after serving half of his sentence, whereas in Estonia release on parole would only be possible after his having served two-thirds of his sentence. Even then, his release on parole would be discretionary as only 15 per cent of inmates in Estonian prisons were released on parole. His de facto sentence would therefore be at least one and a half years longer in Estonia, or even twice as long as his sentence in Finland should no release on parole be granted in Estonia. In its opinion to the Administrative Court the Finnish Ministry of Justice confirmed that as a first-time offender the applicant would be serving four years and six months if he were to remain in Finland. In Estonia it would be possible for him to obtain conditional release on having served two-thirds of his sentence (six years). The Administrative Court dismissed the applicant’s appeal, finding inter alia that, even though he was likely to serve a significantly longer prison sentence in Estonia owing to the differences in the possibility of being released on parole, his transfer would not breach Article   5, as the sentence he would actually be serving in Estonia would not exceed the sentence imposed by the Finnish courts. Article   3 – The evidence submitted did not sufficiently substantiate this grievance so as to disclose an appearance of a real risk of treatment proscribed by Article   3 on the applicant’s transfer to an Estonian prison. Moreover, he would be free to lodge an application against Estonia should he consider his treatment there to be in breach of the Convention: manifestly ill-founded. Article   5 § 1(a) – The applicant had an expectation of being released on parole in Finland after serving half of his sentence. The application of the Transfer Convention could, in principle, result in the applicant spending a longer time in prison on his return to Estonia than he would in Finland before being released on parole. There was no dispute, however, as to the compatibility with Article   5 of the applicant’s deprivation of liberty in Finland. Nor was it in dispute that the original sentence had been imposed on the applicant in conformity with the requirements of Article   6. The question for the Court was whether his transfer, with the risk of a de facto longer sentence, would violate Article   5 and whether the transfer arrangements would require a procedure offering the guarantees of Article   6. As the serving of the applicant’s sentence following his transfer would be based on his conviction in Finland, the necessary causal connection between that conviction and his deprivation of liberty in Estonia would still exist. Even assuming that the causal link would be broken if the possibility of a transfer could not be foreseen at the time of his conviction, the Additional Protocol entered into force in respect of Finland on 1 August 2001, i.e. prior to that conviction. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part such as the Transfer Convention and its Additional Protocol. The Convention did 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. In view of this, the possibility of a longer period of imprisonment in Estonia did not in itself render the deprivation of the applicant’s liberty arbitrary as long as the sentence to be served did not exceed the sentence imposed in the criminal proceedings in Finland. As a further safeguard against arbitrariness, Finnish law provided for the possibility of appealing to an administrative court against a transfer decision. The Court did not exclude the possibility that a flagrantly longer de facto sentence 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. For this to be the case, however, substantial grounds would have to be shown to exist for believing that the time to be served in the administering State would be flagrantly disproportionate to the time which would have had to be served in the sentencing State. In view of the information concerning the Estonian practice in converting sentences, in particular the position of the Estonian Government to the effect that a penalty imposed in Estonia would be likely to be less severe than a penalty imposed in Finland, there were no substantial grounds for believing that his converted sentence would be flagrantly disproportionate, if disproportionate at all. Moreover, his case would be heard by an Estonian city court before his sentence was converted. The present case could be distinguished from Ezeh and Connors v. the United Kingdom [GC],nos. 39665/98 and 40086/98, ECHR 2003‑X, where the Court found that the awards of additional days by the prison governor had constituted fresh deprivations of liberty imposed for punitive reasons: manifestly ill-founded. Article   6 ( ex officio ) – If the applicant were transferred to Estonia, any conversion of his sentence would be carried out by a city court. Having regard to the finding under Article   5, no issue arose under Article   6. Article   14 in conjunction with Article   5 – The applicant could not be compared to prisoners of Finnish origin serving their sentences in Finnish prisons. The aim of the Transfer Convention constituted objective and reasonable justification for the difference in treatment of the applicant and prisoners of Finnish origin, on the one hand, and other prisoners of Estonian origin, on the other. The Court accepted the Government’s argument that the difference in treatment between different prisoners of Estonian origin was due to the fact that the time-consuming arrangements for a transfer were a practical obstacle to transferring prisoners serving only short sentences prior to their release on parole in Finland: manifestly ill-founded. Article   4 of Protocol No. 7 – Even assuming that Article   4 of Protocol No. 7 to the Convention could apply to proceedings taking place within the jurisdiction of more than one State, the Estonian authorities had not yet made any decision as to the applicant’s sentence in Estonia. In any event, there was no indication that he would face a new set of criminal proceedings for the same offence, as distinct from the proceedings concerning the conversion of the sentence: manifestly ill-founded.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes