<\/span><\/h3>\nThe primary purpose of the Criminal Justice (Mutual Recognition of Custodial Sentences Act 2023 is to implement European Union Framework Decision 2008\/909\/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.<\/p>\n
Under the Council of Europe Convention on the Transfer of Sentenced Persons 1983, and the Additional Protocol thereto, implemented in Ireland through the Transfer of Sentenced Persons Acts 1995-1997 and the Transfer of Execution of Sentences Act 2005, persons upon whom a custodial sentence has been imposed may be transferred to another Convention state to serve that sentence.<\/p>\n
The Framework Decision facilitates transfers of sentenced persons through extending the principle of mutual recognition, whereby EU Member States agree to recognise one another\u2019s laws or decisions, to judgments in criminal matters imposing prison sentences. The Framework Decision replaces the Convention in respect of transfers between Member States.<\/p>\n
The Framework Decision provides for transfers to be made without the consent of the sentenced person or the executing state under certain circumstances, including where the person is transferred to the Member State of the person\u2019s nationality where the person lives.<\/p>\n
Ireland is obliged to give effect to the Framework Decision.<\/p>\n
<\/span>Application of Act<\/span><\/h3>\nThe provisions of the Act will apply to offences committed both before and after its commencement.\u00a0There is a presumption that an executing state will comply with the requirements of the Framework Decision unless the contrary is shown.<\/p>\n
The Minister for Justice is the competent authority in the State for the purposes of the 2023 Act and the Framework Decision, except in respect of the matters specified, where this role is assigned to the court.<\/p>\n
There is a procedure for the manner in which documents related to the 2023 Act shall be transmitted to the competent authority of an executing state or an issuing state for the purposes of the 2023 Act. It also makes evidential provisions in respect of such documents.<\/p>\n
<\/span>State as Issuing State<\/span><\/h3>\nApplication to forward judgment<\/p>\n
The Act sets out who can make an application to the Minister of Justice for a judgment to be forwarded. Such an application may be made by the sentenced person or by an appropriate person, on behalf of the sentenced person, or by the competent authority of the executing state which would be responsible for the enforcement of the judgment. The Minister is to consider the forwarding of a judgment on his or her own initiative.<\/p>\n
Information to be provided to notification parties<\/p>\n
There are \u00a0notification requirements in respect of an application. It provides for the parties the Minister must notify on receipt of an application to forward a judgment and the information to be provided to such parties.<\/p>\n
Opinion of sentenced person<\/p>\n
Where a sentenced person is in the State, the Minister must ensure that they are given the opportunity to provide an opinion in respect of an application. An appropriate person to give consent on behalf of the sentenced person should that person be incapable of doing so. The opinion is to be provided to the executing state.<\/p>\n
<\/span>Consent of sentenced person<\/span><\/h3>\nThe Act sets out the requirements in respect of the consent of the sentenced person to the forwarding of a judgment.<\/p>\n
The consent of the sentenced person is required unless:<\/p>\n
\n- The person is a national of the executing state and lives in that state,<\/li>\n
- the person will be sent to the executing state upon release in accordance with an order consequential to the judgment, or<\/li>\n
- the person has fled to the executing state.<\/li>\n<\/ul>\n
The determination of whether a person lives in the executing state is made based on the habitual residence of the person and on his or her family, social or professional ties with that state.<\/p>\n
An appropriate person is to give consent on behalf of the sentenced person should that person be incapable of doing so.<\/p>\n
<\/span>Consent of executing state<\/span><\/h3>\nThe Act \u00a0sets out the requirements in respect of the consent of the executing state to the forwarding of a judgment to that state.<\/p>\n
A judgment may be forwarded without the consent of the competent authority of the executing state where:<\/p>\n