Basics of the transfer of enforcement
Where a German citizen or a person living in Germany is sentenced to a custodial sentence abroad, the question arises whether the sentence can be enforced in Germany. The transfer of enforcement under Sections 48 ff. IRG makes it possible to serve a custodial sentence imposed abroad in Germany — under the conditions of German prison law.
For the person concerned, the transfer of enforcement offers considerable advantages: closeness to family during the period of detention, application of German prison law with its rehabilitation programs, the possibility of early release under Section 57 StGB (as a rule after serving two thirds of the sentence), as well as relaxations of detention under the prison enforcement acts of the federal states.
Legal basis
The transfer of enforcement is based on several legal bases, which differ depending on the origin of the judgment.
EU Framework Decision 2008/909/JHA
Within the EU, Council Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters forms the central legal basis. It was transposed in Germany through Sections 84 ff. IRG. The Framework Decision provides for a largely automatic recognition and enforcement of custodial sentences in the home state — with the aim of promoting the social reintegration of the convicted person.
Convention on the Transfer of Sentenced Persons
In relation to third states, the Council of Europe Convention on the Transfer of Sentenced Persons of 1983 (ETS No. 112), together with its Additional Protocol, is the most important legal basis. More than 60 states — including many non-European states — have acceded to this Convention.
Bilateral agreements and Sections 48 ff. IRG
In addition, there are bilateral enforcement-assistance agreements with various states. Where there is no treaty basis, Sections 48 ff. IRG can be relied upon as the domestic legal basis — although in that case the consent of the state of conviction is required.
Course of the procedure
The procedure for the transfer of enforcement follows a multi-stage course, involving both German and foreign authorities. From the foreign judgment, through the exequatur procedure, to enforcement in Germany, the request passes through three essential phases.
Filing the application
The application for the transfer of enforcement can be filed by the convicted person, by the state of conviction or by Germany. In practice it is advisable to file the application through a German lawyer, who assembles the necessary documents and coordinates communication with the competent authorities.
Responsible for receiving and examining incoming requests is the Federal Office of Justice (Bundesamt für Justiz, BfJ) in Bonn. The BfJ examines the formal conditions and forwards the request to the competent public prosecutor's office.
Exequatur procedure
The actual conversion of the foreign judgment into a decision enforceable in Germany is carried out by the competent Regional Court in the so-called exequatur procedure (Section 54 IRG). The court examines whether the conditions for the transfer of enforcement are met and converts the foreign sentence into a sanction enforceable under German law.
In carrying out the conversion, the court is bound by the factual findings of the foreign judgment. It may, however, adjust the sentence if it exceeds the maximum penalty provided for the offense under German law. In practice this often leads to a reduction of the sentence — particularly in the case of judgments from states with a significantly higher level of punishment.
Enforcement in Germany
After the conversion, the sentence is enforced under German prison law. The convicted person benefits from the rules of the German prison system: rehabilitation programs, relaxations of detention (escorted leave, day release, open prison) and the possibility of early release after serving two thirds of the sentence (Section 57 StGB).
Time already served in detention abroad is credited against the sentence to be enforced in Germany (Section 51 StGB by analogy). This can mean that, after the transfer, the convicted person relatively quickly meets the conditions for early release.
Transfer of enforcement as an alternative to extradition
The transfer of enforcement plays an important role as an alternative to extradition. Where an EU member state requests the extradition of a German citizen who has already been convicted, Germany can offer to take over enforcement: the person concerned is not extradited but serves the sentence in Germany.
This possibility derives from Section 80(3) IRG and the optional bar to surrender in Section 83b(2) IRG. It becomes particularly relevant where the person concerned has their center of life in Germany and enforcement in Germany better serves their social reintegration.
Article 16(2) of the Basic Law — the protection of German citizens against extradition — also requires, in certain constellations, that the transfer of enforcement be examined as a less intrusive means before an extradition can be granted.
Conditions for the transfer of enforcement
The transfer of enforcement requires that a final foreign criminal judgment exists, that the offense would also be punishable under German law (dual criminality), that the convicted person is a German citizen or has their habitual residence in Germany, that the convicted person consents (under certain treaty bases) and that an enforceable portion of the sentence still remains.
Judgments handed down in breach of fundamental rule-of-law principles cannot be taken over — for example where the foreign proceedings violated elementary rights of the defense or the judgment is based on confessions obtained under torture.
Why me?
The procedure for the transfer of enforcement is complex and requires coordination with several authorities in Germany and abroad. I accompany the entire procedure — from filing the application, through the negotiations with the state of conviction, to the exequatur procedure before the Regional Court. I examine whether the transfer of enforcement comes into consideration as an alternative to extradition and advocate for an appropriate conversion of the sentence.