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THE FACTS
The applicant, Mr Mairold Veermäe, is an Estonian national who was born in 1977 and is currently serving a prison sentence in Finland. He was represented before the Court by Ms M. Lehtinen, a lawyer practising in Lahti. The respondent Government were represented by their Agent, Mr A. Kosonen, Director at the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
On 6 September 2001 the applicant was convicted by a Finnish district court of an aggravated narcotics offence and sentenced to nine years’ imprisonment. He had been detained since 19 January 2001. On 28 January 2002 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) ordered his expulsion to Estonia. The judgment and the expulsion order both became final.
On 5 December 2002 the Criminal Sanctions Agency (rikosseuraamusvirasto, brottspåföljdsverket) proposed to the Ministry of Justice that the applicant should serve the rest of his sentence in Estonia. The applicant and the Ministry of the Interior were invited to submit observations. The applicant objected to being transferred to Estonia, whereas the Ministry of the Interior agreed to the transfer.
On 13 March 2003 the Ministry of Justice ordered the applicant to serve the rest of his sentence in Estonia. It relied on section 19(2) of the International Cooperation in the Enforcement of Certain Criminal Sanctions Act (Law no. 21/1987, as amended by Law no. 236/2001) (laki kansainvälisestä yhteistoiminnasta eräiden rikosoikeudellisten seuraamusten täytäntöönpanossa, lag om internationellt samarbete vid verkställighet av vissa straffrättsliga påföljder) and on the Additional Protocol to the Convention on the Transfer of Sentenced Persons (European Treaty Series no. 167; Finnish Treaty Series no. 42/2001). The Ministry of Justice held, inter alia, that the applicant did not have particular bonds with Finland and that he had closer social ties to Estonia than to Finland.
The applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting the quashing of the Ministry of Justice’s decision. He argued that in Finland it would be possible for him to be released on parole on 18 July 2005 after serving half his sentence; in Estonia release on parole would only be possible after serving two-thirds of the sentence. Even then his release on parole would be discretionary as only 15% of inmates in Estonian prisons were released on parole, whereas the rest served their sentences in their entirety. The de facto sentence would thus be at least one and a half years longer in Estonia, or even twice as long as the sentence in Finland if no release on parole were granted in Estonia. He further claimed that some prisons in Estonia were old and overcrowded. The applicant relied on Articles 5 and 14 of the Convention, maintaining that his transfer to Estonia would place him in a discriminatory position compared to Finnish prisoners and also to other Estonian prisoners in Finland who were not transferred to Estonia. He further relied on the non bis in idem principle (Article 4 of Protocol No. 7 to the Convention).
In its opinion to the Administrative Court, the Ministry of Justice stated the following (as transcribed by the court):
“... Veermäe has been sentenced to nine years’ imprisonment, of which he will, as a first-time offender, be serving four years and six months. In Estonia it would be possible for Veermäe to obtain conditional release on having served two-thirds of his sentence, that is to say six years. [His] possibility of being released conditionally in Estonia is therefore not significantly smaller than in Finland and the Estonian legislation does not in this respect differ significantly from our own.”
On 19 June 2003 the Helsinki Administrative Court dismissed the applicant’s appeal, finding 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, this in itself did not violate Article 3 of the Convention. It also found that Article 3 would not be violated merely on account of the fact that prisons in Estonia were apparently old and overcrowded. It ruled out any discrimination as the International Cooperation in the Enforcement of Certain Criminal Sanctions Act, which naturally only applied to foreigners, provided an acceptable reason for the transfer.
The Administrative Court further held that the applicant’s transfer to Estonia would not breach Article 5 of the Convention either, as the sentence he would actually be serving there would not exceed the sentence imposed by the Finnish courts. No appeal lay against the Administrative Court’s decision..
On 26 September 2003 the Finnish Ministry of Justice requested the Estonian Ministry of Justice to consent to the enforcement of the sentence in Estonia. At the time of filing their observations, the Government submitted that the consent of the latter had still not been received.
On 24 August 2004 the applicant was transferred to a Finnish open prison facility.
B. Relevant domestic and international law and practice
1. Conditional release in Finland
Under Chapter 2, section 13 (as amended by Law no. 521/2003), of the Enforcement of Sentences Act (laki rangaistusten täytäntöönpanosta, lag om verkställighet av straff), a prisoner may be conditionally released after serving two-thirds or, exceptionally, half of the sentence, in the latter case provided that the prisoner has not served a prison sentence during the three years preceding the offence. The factors to be taken into account in the decision to release a prisoner conditionally include, inter alia, the nature of and the motives for the offence, the prisoner’s earlier lifestyle and his or her behaviour in prison, as well as the situation the prisoner would face on release.
Despite the authorities’ discretionary powers, it is very rare for conditional release to be postponed in Finland. A first-time prisoner is usually released after serving half the sentence.
Under Chapter 7, sections 1 and 2 (as amended by Law no. 580/2001), a prisoner may appeal to a district court against, inter alia, the postponement of his or her conditional release on serving two-thirds or half of the sentence (whichever is applicable under Chapter 2, section 13).
In a report (no. 2001:6), the Committee on Prison Sentences noted the following (on p. 11):
“... In the 1990s [conditional release] was almost never postponed. Following the instruction issued by the Department for Prison Administration of the Ministry of Justice in 1995 (no. 9/011/95) postponements have been very rare and almost exclusively based on the prisoner’s consent. ...”
It further observed (on p. 245):
“[The proposals now being made] would not change the existing legislation as regards the possibility of obtaining conditional release on serving two-thirds of a sentence. Nor would there be any change as regards those prisoners who had not served a term of imprisonment during the three years preceding their offence and who are [therefore] to be released on serving half their sentence. ...”
2. The Convention on the Transfer of Sentenced Persons and the Additional Protocol thereto
The aim of the Convention on the Transfer of Sentenced Persons (“the Transfer Convention” – European Treaty Series no. 112 and Finnish Treaty Series no. 13/1987), including its Additional Protocol, is to develop international cooperation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons. According to the Preamble, foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society.
The Transfer Convention came into force in respect of Finland on 1 May 1987 and the Additional Protocol on 1 August 2001. They came into force in respect of Estonia on 1 August 1997 and 1 June 2000 respectively. Thus, they were in force on 6 September 2001 when the applicant was convicted by the district court.
Article 3 § 1 of the Transfer Convention enables the transfer of a sentenced person from “the sentencing State” to “the administering State” provided, inter alia, that the person in question is a national of the administering State; that he or she (or in some instances a legal representative) consents to the transfer; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and that the sentencing and administering States both agree to the transfer.
Article 9 (“Effect of transfer for administering State”) reads as follows:
“1. The competent authorities of the administering State shall:
(a) continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or
(b) convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.
2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions.
...”
Article 10 (“Continued enforcement”) provides:
“1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.
2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”
Article 11 (“Conversion of sentence”) reads as follows:
“1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:
(a) shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
(b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction;
(c) shall deduct the full period of deprivation of liberty served by the sentenced person; and
(d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.
2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”
Article 3 § 1 of the Additional Protocol provides as follows:
“Upon being requested by the sentencing State, the administering State may, subject to the provisions of this Article, agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.”
3. The transfer procedure in Finland
The Administrative Courts Act (hallinto-oikeuslaki, lag om förvaltningsdomstolarna; 430/1999) provides that the administrative courts examine and decide such administrative appeals, disputes and other cases as fall within their competence under the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag; 586/1996) or other acts of Parliament. Section 24 of the International Cooperation in the Enforcement of Certain Criminal Sanctions Act provides that no appeal lies against the administrative court’s decision. The government bill concerning the Additional Protocol to the Convention on the Transfer of Sentenced Persons (HE 1/2001, p. 19) states:
“When considering a request for transfer, the Ministry of Justice should, in particular, pay attention to prison conditions in the State in which enforcement is being requested. The decision would also be affected, inter alia, by the most likely date on which the sentenced person would be conditionally released in accordance with the laws of the State of enforcement. Should the possibilities for conditional release in the State of enforcement be considerably weaker than in Finland, it might be unreasonable to request the transfer of the sentenced person.”
The Law Committee, having discussed the government bill, observed in its report (LaVM 2/2001):
“The prison conditions in the receiving State should be adequate to ensure that the prisoner will not be subjected to inhuman or degrading treatment or punishment. As a minimum, the conditions in which the prison sentence is served and its duration should not significantly differ from those applicable in Finland. Thus, transfers should also not take place where the legislation of the receiving State concerning the serving of sentences significantly differs from the Finnish legislation, for example in respect of the possibility of conditional release.”
4. Previous transfer of prisoner case before the Court
The present case is the second one of its kind concerning Finland before the Court, the first application (Altosaar v. Finland (dec.), no. 9764/03, 15 June 2004) having been declared inadmissible by the Court as the applicant was no longer considered the victim of a violation within the meaning of Article 34 of the Convention following his release on parole in Finland. In that case the Estonian Government gave an account of the relevant domestic legislation and practice, a summary of which can also be found below.
5. Relevant Estonian law and practice
Article 4 of the Penal Code, which replaced the Criminal Code on 1 September 2002, divides criminal offences into offences in the first degree and offences in the second degree. Criminal offences in the first degree are those for which the Penal Code prescribes a maximum penalty of imprisonment for a term of more than five years, life imprisonment or compulsory dissolution. A criminal offence in the second degree carries a term of imprisonment of up to five years or a pecuniary penalty.
In accordance with the Penal Code Implementation Act, which came into force on 1 September 2002, an offence committed prior to the entry into force of the Penal Code which is also punishable as a criminal offence under the Penal Code is assessed in the light of the corresponding Article of the Criminal Code in force at the time of the commission of the offence. If, after the entry into force of the Penal Code, a penalty is imposed for a criminal offence committed prior to the entry into force of the Penal Code, the penalty is based on the one provided for in the corresponding Article of the Criminal Code in force at the time of the commission of the offence, where the Article in question prescribes a lesser penalty.
The offence of unlawful handling of large quantities of narcotic drugs or psychotropic substances was punishable by one to five years’ imprisonment from 1 September 2002 to 1 January 2004 (Article 184 of the Penal Code), thus rendering the offence an offence in the second degree under the Penal Code. Since 1 January 2004 the offence has been punishable by one to ten years’ imprisonment, thus making the offence an offence in the first degree. The Criminal Code, valid until 31 August 2002 and in force at the time the applicant committed his offence (9 September 2000-19 January 2001), provided for a scale of penalties from three to seven years’ imprisonment.
Conditional release (release on parole) is governed by Article 76 of the Penal Code. If a person has been convicted of a criminal offence in the second degree, or a criminal offence in the first degree through negligence, the court may release the convicted offender conditionally if he or she has actually served at least half but not less than six months of the sentence imposed. If a person has been convicted of intentional commission of a criminal offence in the first degree, the court may release the person conditionally if the convicted person has actually served at least two-thirds of the sentence imposed. In deciding on conditional release, the court must take into consideration the circumstances relating to the commission of the criminal offence, the personality of the convicted offender, his or her previous personal history and conduct while serving the sentence, his or her living conditions and the consequences which conditional release may entail for him or her.
In transfer cases, Estonia has used the procedure of conversion of sentences on account of the fact that the criminal law in the sentencing States has, so far, provided for harsher penalties than those prescribed by Estonian law for the same criminal offences. Transfer cases are heard by the Tallinn City Court, which converts the sentence into one applicable for a similar offence under Estonian law. In Altosaar, the Estonian Government could not speculate as to the nature of the sentence, that being solely within the competence of the court. However, taking into account the relevant provisions of law and the current practice in transfer cases, they considered it likely that the penalty imposed in Estonia would be less severe than the one imposed in Finland and that the actual term of imprisonment would be no longer than it would have been in Finland. In that regard, they noted that at the time of the commission of the offence it had carried a penalty of three to seven years’ imprisonment. However, according to the wording of the Penal Code as in force until 1 January 2004, the penalty was imprisonment from one to five years and as this penalty was less severe it thus replaced the one prescribed by the Criminal Code. At the relevant time, therefore, the offence constituted a criminal offence in the second degree and conditional release would be possible after half the sentence had been served.
In 2003 six prisoners were transferred from Sweden to Estonia to continue serving their sentences. In all cases Article 9 § 1 (b) of the Transfer Convention was applied, as the penalty in Sweden was significantly harsher (a longer term of imprisonment) than that prescribed for similar offences under Estonian law. In Altosaar, the Estonian Government referred to a judgment delivered on 12 June 2003 by the Tallinn City Court. In that case an Estonian citizen had been convicted in Sweden of a serious drug-related offence and sentenced to nine years’ imprisonment. The Tallinn City Court converted the sentence and imposed one of five years’ imprisonment. In most of the conversion cases, the Tallinn City Court has alleviated the situation of the transferred persons, as the prison sentences imposed have been reduced. In Altosaar the Estonian Government submitted that they had no grounds to believe that the situation would be different regarding other comparable cases. A transferred prisoner had the possibility of bringing the case before the Tallinn City Court and he or she could submit any relevant information for consideration in the conversion of the sentence. An appeal lay to the Court of Appeal.
In 2003 a total of 2,205 inmates were released from Estonian prisons, 357 of whom were conditionally released, amounting to 16.6% of the total number released. The average percentage of persons released conditionally has remained stable at 15-18% of all prisoners released throughout the years.
COMPLAINTS
The applicant complained, on the grounds relied on in the domestic proceedings, that his expulsion with a view to his serving the rest of his sentence in Estonia would be in violation of Articles 3, 5 and 14 of the Convention. He also relied on Article 4 of Protocol No. 7 to the Convention.
THE LAW
The applicant submitted complaints under Articles 3, 5 and 14 of the Convention and Article 4 of Protocol No. 7. The Court has also examined of its own motion whether the application raises an issue under Article 6 of the Convention.
A. Article 3 of the Convention
The applicant complained that his expulsion with a view to his serving the rest of his sentence in Estonia would be in violation of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
It is the Court’s well-established position that Contracting States have the right to control the entry, residence and expulsion of aliens. However, extradition by a Contracting State – or any other type of removal of a foreign national – may give rise to an issue under Article 3, and hence engage the responsibility of that State, where substantial grounds have been shown for believing that the person concerned would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he is to be removed. A mere possibility of ill-treatment is not in itself sufficient to give rise to a breach of Article 3 (see, for example, Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, and Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215).
The Court finds that the evidence submitted does 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. The Court would add that he would be free to lodge an application against Estonia should he consider his treatment there to be in breach of that Article or any other provision of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Articles 5, 6 and 14 of the Convention
The applicant also complained that his transfer with a view to his serving the rest of his sentence in Estonia would be in violation of Articles 5 and 14 of the Convention.
The relevant part of Article 5 reads:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
...”
Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The applicant’s transfer to Estonia with a view to his continuing to serve his sentence might also raise an issue under Article 6 of the Convention, the first paragraph of which reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal …”
1. The Government’s submissions
The Government submitted that the decision to transfer the applicant did not entail any fresh deprivation of his liberty and that, accordingly, neither Article 5 nor Article 6 was applicable to the present case. Thus, there was no room for the application of Article 14 either. Were the Court to hold a different view, the application was in any event manifestly ill-founded for the following reasons.
The Transfer Convention was aimed at increasing international cooperation based on mutual confidence in the legal systems of other European States. This development was also in the interest of the persons against whom legal measures were taken. If the transfer of prisoners serving sentences from one European State to another required similar criminal and enforcement provisions in both countries, the objective of the Transfer Convention would be watered down and transfers would not be possible in practice. The conformity requirement might in practice lead to the gradual harmonisation of criminal and enforcement systems on the basis of the most severe European system and to a change in legislation with a view to removing the possibility of release after half the sentence had been served. Such a development would contravene the aim of the Transfer Convention.
The Government noted that the applicant’s original sentence had been imposed by a district court in conformity with the requirements of Articles 5 and 6 of the Convention. Under Finnish law release on parole was a privilege. In both Finnish and Estonian law, release on parole was ultimately discretionary, although under Finnish law its postponement against the convict’s will was extremely rare. However, the time at which a prisoner could be released on parole was not so absolute that it could not, in some cases, be altered. Release on parole could be postponed if the prisoner was found guilty of a disciplinary breach, as referred to in Chapter 2, section 10, of the Enforcement of Sentences Act, for which the disciplinary penalty was the loss of time already served, thus lengthening the period to be served before release on parole. Pursuant to Chapter 2, section 10(a), the maximum loss of time already served was twenty days. In practice, disciplinary penalties entailing the loss of more than ten days were rare. The postponement of a prisoner’s release on parole never increased the total term of imprisonment ordered by the court in its original judgment.
The Government further submitted that the decision of 13 March 2003 by the Finnish Ministry of Justice concerning the transfer of the applicant and the Administrative Court’s decision on appeal of 19 June 2003, in which the terms of the transfer were confirmed, had both been based on valid national legislation. After the applicant’s transfer to Estonia, decisions on the remaining length of his sentence and on conditional release would be taken under Estonian law by a competent court. Those proceedings could not be commenced until the applicant had been transferred, his presence being required. As the relevant provisions on transfers were relatively recent, there was no established case-law in Estonia regarding transfer of prisoners from Finnish prisons. The precise length of the applicant’s sentence could not be known until he had been transferred and the sentence had been converted by a court. Assuming that the Estonian Ministry of Justice gave its consent to the transfer while the current scale of penalties was in force, the present case would fall under the scope of the former Criminal Code, which with its scale of penalties from three to seven years’ imprisonment was more lenient than the current Penal Code’s scale of one to ten years’ imprisonment. The Finnish Criminal Code, under which the applicant had been convicted and sentenced, provided for a scale of between one and ten years’ imprisonment and it was therefore likely that the applicant’s sentence would be converted using a lower scale than the one applied in Finland. Therefore, it appeared that the penalty would be less severe than in Finland. Assuming that the Estonian court converted the sentence to the maximum term of imprisonment, as had occurred in the case of prisoners transferred from Sweden, the applicant’s sentence would be reduced from the current nine years to a maximum of seven years. If the sentence, after conversion, exceeded five years, release on parole would be possible after he had served two-thirds of it, that is to say four years and eight months. In Finland, the Government pointed out, he would be released after four years and six months’ imprisonment. Even if the sentence were to be converted to the maximum one applicable, the difference between the sentences appeared so minimal that it should not be of significance when the matter was considered. The transfer would not, therefore, amount to an arbitrary deprivation of liberty and would be consistent with the general spirit of Articles 5 and 6 of the Convention.
As to Article 14, the Government noted that it did not forbid every kind of difference in treatment. The purpose of the Transfer Convention was expressly to transfer the enforcement of sentences to the home country of the prisoner. Thus, Finnish prisoners serving their sentences in their home country fell outside its scope. The applicant was not in a similar situation to those Estonian prisoners serving only a short sentence as only long sentences gave the authorities the possibility of making time-consuming arrangements for the prisoners’ transfer prior to their release on parole. For the same reason, the transfer of prisoners serving only short sentences was not appropriate. Owing to the time-consuming procedure, many transfers of prisoners serving relatively long sentences had ceased to be valid because the prisoners had been released on parole in Finland before the transfer arrangements had been completed. Therefore, to date, no Estonian prisoners had been transferred from Finland to serve their sentence in Estonia. The different treatment of Estonian prisoners serving short and long sentences was based, in any event, on the aforementioned objective and reasonable justification. The applicant had been treated in the same manner as other Estonian prisoners serving a long sentence. His transfer would not only be based on a decision taken in an administrative procedure, but it had also been reviewed by an independent and impartial tribunal. He had had legal counsel and received free legal aid throughout the proceedings. The Government submitted that the transfer was in compliance with the aim of furthering the social rehabilitation of prisoners, because the applicant’s immediate family lived in Estonia. After his release, he would be transferred to Estonia in any case on the basis of the expulsion order.
Thus, the Government argued, the transfer would pursue a legitimate aim, being based on international agreements and national legislation in both the countries in question, and there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
2. The applicant’s submissions
The applicant argued that the Government had not submitted any evidence of the purported cases in which the transferred prisoners’ original sentences had been reduced by the Tallinn City Court. In any case, that court had discretionary powers and the discussion entered into in the Government’s observations was therefore of a purely theoretical character.
As to the difference in the de facto time served, the applicant underlined that he would serve half his sentence in Finland, that is to say four years and six months, whereas he would perhaps have to serve two-thirds in Estonia, that is to say six years, before release on parole. Moreover, a sentence was often served in full in Estonia.
In the applicant’s view, his case was similar to Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, ECHR 2003-X) in the sense that the sentence might turn out to be harsher than the court convicting him had had reason to believe. If served in Finland, the de facto sentence would be shorter and also more lenient than if served in Estonia, regard also being had to the fact that Estonian prisons were of a lower standard and more crowded than Finnish prisons. Moreover, the applicant alleged that if he were transferred to Estonia he would not be able to complain about his conditions of detention or have any other means of influencing the matter. Thus, he would not have any safeguards on the basis of which he might defend his rights in relation to his conditions of detention.
The applicant argued that his transfer would be discriminatory as not all foreign prisoners were transferred to their home country, while prisoners of Finnish origin were not transferred at all and prisoners of Estonian origin were transferred only in a random manner. There was a lack of specific regulations in Finnish law laying down the circumstances in which transfers should take place. Such regulations would enable the sentencing court to take into account the fact that a transfer would subsequently take place and would therefore prevent differences in treatment.
3. The Court’s assessment
The Court notes that the applicant has an expectation of being released on parole in Finland after serving half his sentence. It observes that the application of the Transfer Convention may, in principle, result in the applicant spending a longer time in prison than he would in Finland before being released on parole. The effect would be to postpone his release, but it appears that there is no question of his sentence being increased as a matter of law.
There is no dispute as to the compatibility with Article 5 of the Convention of the applicant’s deprivation of liberty in Finland. Nor is it in dispute that the original sentence of 6 September 2001 was imposed on the applicant in conformity with the requirements of Article 6. The question is whether the transfer, with the risk of a de facto longer sentence, violates Article 5 and whether the transfer arrangements require a procedure offering the guarantees of Article 6.
As to Article 5, the applicant’s deprivation of liberty falls to be assessed under paragraph 1 (a). There can be no doubt that the applicant’s conviction was pronounced by a competent court within the meaning of that provision. As established in the case-law of the Court, however, the word “after” in Article 5 § 1 (a) does not simply mean that the detention must follow the “conviction” in point of time: in addition, the detention must result from, follow and depend upon or occur by virtue of the “conviction”. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty in issue (see Weeks v. the United Kingdom, judgment of 2 March 1987, Series A no. 114, p. 23, § 42).
As the serving of the applicant’s sentence 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 the conviction, that is not the case here. The Court notes that the Additional Protocol to the Transfer Convention came into force in respect of Finland on 1 August 2001, that is, prior to the applicant’s conviction.
However, the Court must also satisfy itself that there is no arbitrariness. As it has repeatedly held, no deprivation of liberty which is arbitrary can be regarded as compatible with Article 5 (see Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, pp. 21-22, § 40). In assessing the question of arbitrariness, it reiterates that the Convention cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account (see, mutatis mutandis, Loizidou v. Turkey (merits), judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2231, § 43). The Convention should, as far as possible, be interpreted in harmony with other rules of international law of which it forms part (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI). In the present context the Court must, in particular, take into account the Transfer Convention and its Additional Protocol.
The European Convention on Human Rights does 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 (see Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, pp. 34-35, § 110). In view of this, the possibility of a longer period of imprisonment in the administering State does not in itself render the deprivation of liberty arbitrary as long as the sentence to be served does not exceed the sentence imposed in the criminal proceedings. In this context, reference may also be made, as a safeguard against arbitrariness, to the possibility of appealing to an administrative court against the transfer decision.
The Court does 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 (see, mutatis mutandis, Cruz Varas and Others v. Sweden, judgment of 20 March 1991, Series A no. 201, p. 28, §§ 69-70). 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, the Court considers that there are not substantial grounds for believing that the sentence to be served would be flagrantly disproportionate, if disproportionate at all. The Court also notes that the applicant’s case will be heard by a tribunal, notably the Tallinn City Court, before his sentence is converted.
As to the applicant’s reference to Ezeh and Connors (cited above), the Court notes that the present case can be distinguished from that case, where the Court found that the awards of additional days by the prison governor constituted fresh deprivations of liberty imposed for punitive reasons.
In so far as Article 6 is concerned, the Court notes that, if the applicant is transferred to Estonia, any conversion of his sentence will be determined by the Tallinn City Court. Having regard to its finding above under Article 5, the Court considers that no issue arises under Article 6.
As to the discrimination complaint, the Court reiterates that Article 14 safeguards, among others, individuals placed in similar situations from any discriminatory differences of treatment in the enjoyment of the rights and freedoms recognised in the Convention and its Protocols (see, among other authorities, Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, pp. 15-16, § 32). In the instant case, the applicant cannot be compared to prisoners of Finnish origin serving their sentences in Finnish prisons as the Transfer Convention concerns the transfer of prisoners back to their home countries. Its aim constitutes 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 accepts the Government’s argument that the difference in treatment between, for example, prisoners of Estonian origin is due to the fact that the time-consuming arrangements for a transfer are a practical obstacle to transferring prisoners serving only short sentences prior to their release on parole in Finland.
Thus, it has not been shown that in the circumstances of the case Finland would be required not to transfer the applicant with a view to his serving his sentence in Estonia.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Article 4 of Protocol No. 7 to the Convention
Lastly, the applicant complained of a violation of Article 4 of Protocol No. 7 to the Convention, which reads:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.”
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 Court notes that the Estonian authorities have not yet made any decision as to the applicant’s sentence in Estonia. In any event, there is 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. Consequently, there is no appearance of a violation of Article 4 of Protocol No. 7 to the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
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