International transfer of sentenced persons

A person sentenced to prison in one country can, in certain cases, finish serving that sentence in another country. That is what the international transfer of sentenced persons means. It is not a pardon and it is not a reduction of sentence. It is a change in the place where the sentence is served.

This page covers two different situations. The first: you are the relative of a Spanish national imprisoned abroad and you want to bring them back to Spain. The second: you are a foreign national, you are in prison in Spain, and you want to serve your sentence in your home country. The procedures are similar, but they are not the same.

At Bataller Abogados we have more than 25 years of experience in criminal and prison law, working from Barcelona. We handle transfers between prisons in Spain and internationally, 24 hours a day and in several languages.

What international transfer of sentenced persons means

A transfer allows a prison sentence handed down in one State to be served in another. The thinking behind it is rehabilitation: someone serving a sentence close to their family and in their own language has better prospects.

A transfer does not cancel the sentence. The judgment remains the one given by the country that tried the case. Only the place where the remaining time is served changes.

Without a legal instrument in place between the two countries, no transfer is possible. There are three such bases:

• The Council of Europe Convention on the Transfer of Sentenced Persons, done at Strasbourg on 21 March 1983, and its Additional Protocol of 1997.
• Within the European Union, Ley 23/2014 of 20 November on the mutual recognition of criminal judgments in the European Union, which implements Framework Decision 2008/909/JHA.
• The bilateral treaties Spain has signed with individual countries.

Do not confuse this with a transfer between prisons within Spain. That is a separate administrative procedure and a much faster one.

Bringing a relative imprisoned abroad back to Spain

This is the most frequent enquiry we receive, and the most distressing. A son, a partner or a brother has been sentenced outside Spain. The family does not understand the language or the legal system.

The first step is to get the facts in order. You need to know which country the person is in, whether the judgment is final, how much of the sentence is left, and whether an applicable instrument exists. Without that, nothing can be assessed.

The application can be started by the sentenced person, by the State where the sentence is being served, or by the receiving State. The family is not a party to the procedure. But the family can push it forward: by locating the prisoner, by activating consular assistance through the Spanish consulate, and by acting through a lawyer.

One realistic word of warning. Outside the European Union the procedure also depends on the authorities of that State, and they are under no obligation to agree. There can be long delays and refusals.

Serving your sentence in your home country if you are in prison in Spain

The reverse situation. A foreign national is serving a sentence in a Spanish prison and wants to finish it at home. The reasons are the same: family, language, health, isolation.

Here too a legal basis is needed. If the home country is in the European Union, Ley 23/2014 applies. If not, you have to check whether it is a party to the Strasbourg Convention or has a bilateral treaty with Spain.

One point surprises many people: a transfer is not always the better option. In Spain, prison leave, tercer grado (third grade, Spain’s open or semi-liberty regime) and parole have set qualifying periods. In the receiving country they may be less favourable. That analysis has to be done beforehand, not afterwards.

The 1983 Strasbourg Convention

This is the instrument most often used outside the European Union. It came out of the Council of Europe, but it is open to non-member States and has been ratified by countries on other continents. In each case you have to check whether the country is a party.

Its article 3 sets out the basic conditions:

• The sentenced person must be a national of the administering State.
• The judgment must be final: no further appeals available.
• At least six months of the sentence must remain, or the sentence must be indeterminate.
• There must be dual criminality: the acts must be an offence in both States.
• The sentenced person must consent, or their legal representative if they are not able to decide.
• Both States must agree.

Article 7 requires consent to be given voluntarily and with full awareness of its legal consequences, verified before a consul or a designated official. A hurried signature is not enough.

After a transfer, the receiving State may continue enforcement as imposed (article 10) or convert the sentence under its own law, without making it harsher (article 11). Spain has excluded the conversion procedure: it continues enforcement, with the possibility of adapting the sentence if it is incompatible with Spanish law.

The Additional Protocol of 1997, in force for Spain since 1 November 2017, allows consent to be dispensed with in two situations: where the person has fled to the State of their nationality to avoid serving the sentence, and where they are subject to an expulsion or removal order linked to the judgment. In the second case their opinion must be heard, although it is not binding.

Within the European Union: Ley 23/2014 and mutual recognition

Between Member States the Strasbourg Convention is not used; mutual recognition applies instead. There is no diplomatic negotiation: there is a judicial decision that the other State must recognise and enforce, unless one of the listed grounds for refusal applies.

The competent authorities in Spain are as follows. To transmit a Spanish sentence to another Member State: the Juzgado de Vigilancia Penitenciaria (Prison Supervision Court) if enforcement has already begun, or the sentencing court if it has not. To recognise and enforce a sentence from another Member State here: the Juez Central de lo Penal of the Audiencia Nacional (the central criminal court), and then the Juez Central de Vigilancia Penitenciaria (the central prison supervision judge).

A meaningful amount of the sentence must remain to be served, there must be no pending cases or judgments that are not yet final, and the transfer must contribute to social rehabilitation. That rehabilitation assessment is where most of the case is won or lost.

At European level, consent is not always required. It is enough to hear the sentenced person where the sentence is transmitted to the State of their nationality in which they live, where they are to be expelled to that State after serving the sentence, and where they have fled to it or returned to it because of the proceedings or the sentence.

The grounds for refusal are limited and listed. They include the principle against being tried twice for the same acts, limitation periods, the acts not being an offence, immunity, defects in the certificate, and the absence of a real link with the enforcing State.

The European rules set reference deadlines: around 90 days at most to decide on recognition from receipt of the certificate, and around 30 days for the physical transfer once that decision is final. In practice these run longer.

Bilateral treaties

Spain also has bilateral treaties on the transfer of sentenced persons with a large number of States, many in Latin America and several in North Africa, the Middle East and Asia. They apply where the country is not an EU Member State and is not a party to the Strasbourg Convention, or where using them is more favourable.

Each treaty has its own wording. They differ on the minimum sentence remaining, on civil liability, on which authority decides and on the documents required. So the first technical task is to check which instrument applies with that particular country. Choosing the wrong route can set the file back by months.

Usual requirements and the consent of the sentenced person

Each instrument has its own rules, but these requirements come up again and again:

1. A final judgment. While appeals are pending, there is no transfer.
2. A link with the receiving State. Usually nationality; within the EU, residence and established ties also count.
3. Enough of the sentence remaining. As a general rule, at least six months.
4. Dual criminality. The acts must be an offence in both countries.
5. No pending cases in the State where the sentence is being served.
6. The consent of the sentenced person, subject to the exceptions explained above.
7. Agreement of the authorities involved.

Consent is a personal and informed act. Nobody should sign it without first understanding what sentence they will be serving and under which prison system.

Transfer or expulsion: which is better in each case

This is the point that causes the most confusion, and where people most often arrive badly advised.

Article 89 of the Código Penal (the Spanish Criminal Code) allows a prison sentence to be replaced by expulsion from Spanish territory for sentences of more than one year imposed on a foreign national, with separate rules for sentences of more than five years and a more restrictive regime for EU citizens.

The practical difference is significant. Expulsion under article 89 carries a ban on entering Spain for between five and ten years from the date of expulsion. If the person tries to return before then, they will serve the sentences that were replaced.

A transfer works differently. The person serves the remainder of the sentence in their own country and, once the sentence is served, does not carry that entry ban attached to expulsion in place of a sentence. For someone with family or a life planned in Spain, the difference can be decisive.

There is no single right answer. The decision has to be taken with the figures in front of you.

How long it takes and what can go wrong

We will be straightforward here, because this is an area where people are promised things that cannot be promised. The real timescales for these cases are long and uncertain. Two justice systems, two ministries and consular formalities are all involved.

Within the European Union there are reference deadlines, but they are not guaranteed to be met. Outside it, the range is wider. Anyone who guarantees you a date or an outcome is not being honest with you.

These problems frequently hold files up:

• A judgment that is not final, or appeals still pending.
• Open criminal cases in the country where the sentence is being served.
• Civil liability that has not been paid or secured.
• Documents that are incomplete, badly translated or not legalised.
• Lack of proof of nationality or of established ties.
• Disagreement over how the acts are classified.

Nearly all of these can be avoided if the file is properly prepared.

Cases we regularly handle

• Families of Spaniards sentenced in Latin America or North Africa who want to bring them home.
• Spaniards sentenced in the European Union who apply to serve their sentence in Spain.
• Foreign nationals in prison in Catalonia who wish to serve their sentence at home.
• People who have to choose between a transfer and expulsion in place of the sentence.
• Files stalled by problems with documents or by outstanding civil liability.

How we work on your case

1. Urgent consultation. We identify the country, the stage of the proceedings and the sentence remaining. We are available 24 hours and in several languages.
2. Checking the legal framework. We establish which instrument applies with that country and what it requires.
3. Comparative analysis. We work out how the sentence would look in each scenario, including expulsion, and explain the advantages and risks to you in writing.
4. Preparation and filing. We gather and translate the documents, coordinate with the consulate and with local defence counsel, and file the application.
5. Follow-up. We push the file forward, respond to requests for information, keep the family informed and work on the prison situation after arrival.

Documents that help

Gather whatever you have. With two or three documents we can already point you in the right direction.

• The judgment and, if it exists, the decision confirming it is final.
• Passport or identity document and a certificate of nationality.
• The prison, city, country and prisoner number.
• Details of the lawyer who defended the case in the sentencing country.
• The sentence calculation or the expected release date.
• Civil liability: the amount, and whether it has been paid or secured.
• Evidence of family ties in the receiving country.

Frequently asked questions

How long does an international transfer take?

There is no fixed timescale and nobody can guarantee you one. Within the European Union the rules set reference deadlines, but in practice these run longer. Outside it, the range is wider and depends on the country. These are long procedures. What does depend on us is that the file is complete.

Does the sentence stay the same on arrival?

As a general rule, yes. A transfer does not review or cancel the judgment. Because Spain has excluded conversion under the Strasbourg Convention, it continues enforcement of the sentence imposed abroad. If the sentence is incompatible in nature or length with Spanish law, it can be adapted, without making the sentenced person’s position worse. Prison benefits are governed by the law of the country where the sentence is served.

Is my consent needed?

Under the Strasbourg Convention, as a rule yes: it must be voluntary, informed and verified before an official. The Additional Protocol of 1997 allows consent to be dispensed with in two situations, one of them where there is an expulsion order linked to the judgment. Within the European Union there are cases where it is enough to hear the sentenced person. Before signing anything, get advice.

What is the difference between a transfer and expulsion?

They are different routes and are sometimes alternatives. Expulsion under article 89 of the Código Penal replaces the prison sentence and carries a ban on entering Spain for between five and ten years. A transfer does not replace the sentence: the person serves it at home and, once it is finished, does not carry that ban. Which is better depends on the sentence remaining and on where the person plans to build their life.

My relative is in prison abroad. What do I do first?

Find out exactly which prison and which country. Contact the Spanish consulate to activate consular assistance. Establish whether the judgment is final and how much of the sentence is left. Gather what documents you can. And take legal advice before signing or paying anything in the sentencing country.

Can someone apply if they do not hold the nationality of the receiving country?

The classic requirement under the Strasbourg Convention is nationality of the administering State. Within the European Union the test is broader: residence and established ties also count. Some bilateral treaties accept lawful residence. It has to be looked at case by case: this is a common ground for refusal.

Does outstanding civil liability matter?

It can matter a great deal. In many files it must be paid or secured before a transfer is authorised, and its absence is used to refuse or delay. We look at this at the outset, because it can sometimes be resolved with a payment plan. Leaving it to the end usually proves costly.

Can I apply for prison leave or parole after a transfer?

Yes, but under the prison law of the country where you go on to serve the sentence. That is why we insist on doing the comparative analysis before applying for a transfer. If you come to Spain, your situation will be governed by the Spanish system of grades, prison leave and parole.

Speak today to a lawyer who understands your case

These cases are won or lost in the preparation. A badly translated document or the wrong legal route can cost months.

At Bataller Abogados we have more than 25 years in Spanish prison law and international judicial cooperation. We are a boutique firm at C/ Aribau 205, 2nd floor, Barcelona. We work with families who are in another country and with prisoners who do not speak Spanish. That is why we are available 24 hours a day and in several languages.

We will not promise you a timescale or an outcome. We will tell you clearly which route applies, what is missing and what you can expect.

Call +34 696 967 181 or +34 937 490 708, or write to us from our contact page. You can also read about our work as a prison lawyer in Barcelona.