Concept of Transfer in Law
The term transfer refers in a legal context to the handing over or movement of a person from one state, authority, or legal entity to another state, authority, or legal entity. This process is of far-reaching importance in various areas of law, particularly in criminal law, extradition law, criminal enforcement law, as well as in the area of child protection and international cooperation.
Legal Basis of Transfer
Transfer in Criminal Law and Extradition Law
International Transfer
The transfer often serves the enforcement of custodial sentences abroad or the facilitation of criminal prosecution. Within the framework of international legal assistance, transfer refers to the movement of a convicted or accused person between states.
- European Arrest Warrant and Transfer:
Within the European Union, suspects or convicted persons are transferred between member states on the basis of the Framework Decision on the European Arrest Warrant (Directive 2002/584/JHA). The aim is an expedited, simplified, and legally secure criminal prosecution.
- Transfer under Bilateral or Multilateral Agreements:
Outside the EU, transfer procedures are often based on extradition treaties, such as the European Convention on Extradition (ECE), or the Act on International Cooperation in Criminal Matters (IRG) in Germany.
Requirements and Procedure
A transfer generally requires the following elements:
- Legal basis: There must be a relevant agreement, law, or a legally binding international regulation.
- Double Punishability (Principle of Double Criminality): The act must be punishable under the laws of both involved jurisdictions.
- Hearing and Protection of Rights: The person concerned will generally be heard, and their rights must be respected during the proceedings, e.g., the principle of a fair trial.
- Guaranteeing Minimum Humanitarian Standards: A lawful procedure as well as humane detention and living conditions must be guaranteed in the destination state.
Distinction Between Transfer and Extradition
While extradition refers to the surrender of a prosecuted person for criminal prosecution or the enforcement of a sentence to another state, transfer typically refers to the movement of a person who has already been convicted, for the purpose of executing the sentence abroad, for example, to allow serving the sentence closer to their place of residence.
Transfer in Criminal Enforcement Law
According to the Convention on the Transfer of Sentenced Persons (Council of Europe Convention on the Transfer of Sentenced Persons, 1983), a person who has been criminally convicted may be transferred to their home country to serve their sentence. Requirements include, among others:
- A final and enforceable decision
- Consent of the person to be transferred as well as the states involved
- Double criminality
The aim, in addition to humanitarian considerations, is also to promote resocialization.
Transfer in Residence Law Procedures
In residence law, transfer occurs in connection with the repatriation (deportation) of foreigners required to leave the country.
- Dublin Regulation:
In European asylum law, the Dublin Regulation determines which member state is responsible for conducting the asylum procedure. Applicants may be transferred to another member state if it is responsible for the procedure.
- Repatriations:
Transfers in connection with repatriations are carried out in compliance with human rights standards. Special protection regulations apply to vulnerable groups, e.g., minors.
Transfer in Child Protection and Family Law
In cases of cross-border custody disputes or in the context of The Hague Convention on the Protection of Minors, the transfer of minors may take place for the purpose of protection or to exercise custody. This is governed by international agreements and requires a formal procedure as well as safeguarding the child’s welfare.
Procedure of a Transfer
Initiation and Application
As a rule, the transfer procedure begins with an application by the receiving or surrendering state or the relevant authority. Responsible authorities check whether the respective legal and factual requirements are met.
Hearing and Legal Protection
The person concerned is given the opportunity to be heard and to lodge legal remedies. During the procedure, fundamental human rights and procedural guarantees must be observed.
Decision and Execution
After a positive decision, the transfer is carried out by the responsible authorities, often with police escort. In the destination state, the next procedural steps, such as the enforcement of the sentence or further prosecution, are implemented.
Legal Limits and Protection Provisions
Human Rights Requirements
Transfers may only take place if there is no risk of torture, inhuman, or degrading treatment in the destination state. Particularly relevant here are the European Convention on Human Rights (ECHR) and the Fundamental Rights of the European Union.
State Sovereignty and Grounds for Refusal
States may refuse transfers, for example, in cases of a threatened death penalty, politically motivated accusations, the granting of asylum, or health dangers for the person concerned.
Practical Relevance and Significance
Transfer plays a central role in international crime control, the harmonization of penal enforcement, the protection of vulnerable groups, and the enforcement of the rule of law in a cross-border context. It contributes to the safeguarding of individual rights and to the strengthening of international cooperation.
Literature and Further References
- Council of Europe Convention on the Transfer of Sentenced Persons (ETS 112)
- Act on International Cooperation in Criminal Matters (IRG)
- Directive 2002/584/JHA (Framework Decision on the European Arrest Warrant)
- European Convention on Human Rights (ECHR)
- Dublin III Regulation (EU) No 604/2013
See also: Extradition, legal assistance, repatriation (deportation), European Arrest Warrant, child protection
This article examines the concept of transfer from legal, human rights, and practical perspectives and serves as a comprehensive reference for understanding and applying it in cross-border legal matters.
Frequently Asked Questions
What legal requirements must be met for a transfer?
Various legal requirements must be fulfilled for a transfer according to national law and, where applicable, international agreements. Generally, a legally binding court decision is first required as the basis for the transfer. Often, a formal request is necessary from the competent authority of the requesting state. In addition, the willingness to transfer and the consent of the person concerned must be present, unless this is expressly excluded by law (such as in the case of automatic return transfers in penal enforcement). Certain procedural guarantees must also be observed, such as the right to be heard and adequate defense. It is regularly reviewed whether minimum rule-of-law standards are guaranteed in the destination state. Furthermore, there must be no mandatory impediments to extradition, such as the risk of torture or political persecution.
Which international agreements govern transfers?
International transfers are carried out on the basis of various international treaties. Of particular relevance is the European Convention on the Transfer of Sentenced Persons (Transfer Convention), which has been signed by numerous European states and some non-EU countries. In addition, there is Framework Decision 2008/909/JHA of the Council of the European Union, which governs the mutual recognition of judgments in criminal matters within the EU. Bilateral agreements can also serve as a basis for transfer. The respective agreements regularly define the requirements, procedures, and legal protection for transfers as well as the rights of the transferred persons.
What rights does the transferred person have?
The person to be transferred has extensive rights derived from national regulations, international agreements, and human rights standards. These include the right to a hearing and to information about the transfer procedure and its consequences. As a rule, there is an entitlement to access the files, assistance from a defense lawyer, and interpreter services. International agreements also guarantee that the transferred person may lodge legal remedies against the decision to transfer. It must be ensured that treatment in the destination state meets international human rights standards, in particular with regard to humanitarian conditions and protection from inhuman treatment.
Can a transfer also take place against the will of the person concerned?
As a rule, transfers in penal enforcement require the consent of the person concerned. However, exceptions are provided by law, for example, if according to Article 3(1)(f) of the Transfer Convention the transfer is in the interest of justice and national law provides for such a compulsory measure. In extradition proceedings, a transfer can also be carried out without consent under certain circumstances. What is relevant in these cases is an assessment of proportionality as well as the existence of compelling reasons for refusal, such as risk of political persecution, the non-refoulement principle, or a threat of treatment contrary to human rights.
Which authority is responsible for carrying out a transfer?
Responsibility for carrying out a transfer regularly lies with the judicial authorities of the transferring state. In Germany, this is primarily the General Prosecutor’s Office of the respective federal state, which is responsible for both the legal actions and coordination with foreign authorities. Other involved agencies can include the Federal Office of Justice and the Federal Ministry of Justice. The practical implementation, including escort and transport, is carried out in close cooperation with the police and, if necessary, specialized security services.
What are the legal consequences of a transfer for the criminal proceedings or enforcement?
The transfer has an immediate impact on the criminal proceedings or the enforcement of the sentence. Under the Transfer Convention, for example, enforcement of the sentence continues in the receiving state according to its law, with the nature and extent of the sentence generally having to be maintained. However, it is possible for the sentence to be adjusted according to the enforcement rules of the receiving state, with the ‘prohibition of aggravation of sentence’ (ne bis in peius) to be observed. After transfer, pardons, amnesties, or commutations may be granted by the receiving state, if allowed by the convention or national provisions. The transfer does not affect the finality of the original court decision.
What role do human rights guarantees play in a transfer?
Human rights guarantees play a central role in the transfer procedure. Particularly relevant is the European Convention on Human Rights (ECHR), which provides protection against torture and inhuman or degrading treatment (Art. 3 ECHR). Therefore, before a transfer, careful consideration must be given to whether the receiving country ensures detention and living conditions that comply with human rights. If there is a risk of violation of human rights standards, a transfer must be strictly refused. The right to a fair trial (Art. 6 ECHR) and the principle of non-refoulement must also be strictly observed. Monitoring and complaint mechanisms help ensure that these guarantees are implemented and adhered to in practice.
