Michael McDowell (Dublin South East, Progressive Democrats)

Section 35 applies to a person who is already serving a sentence of imprisonment or detention in the State and is also subject to a surrender order pursuant to a request from the International Criminal Court. The surrender order may include conditions in respect of the return of the person concerned into the custody of the State following the completion of the ICC proceedings.

The amendment proposes that if the person and the state of enforcement consent then any sentence, or balance thereof, which the person is liable to serve in the State, will be served in the state of enforcement. It relates to sentence enforcement issues which are distinct from, and broader than, the relevant provisions of the Rome Statute. The amendment seeks to combine two discrete areas — enforcement of ICC sentences and existing arrangements for transfer of sentenced persons, pursuant to the Council of Europe Convention on the Transfer of Sentenced Persons. The advice given to me is that these two matters should be kept separate. The objective of the Bill is to ensure that the State and the organs of the State meet their obligations to give effect to the provisions of the Rome Statute.

The Rome Statute deals specifically with the enforcement of sentences following conviction of persons by the ICC for ICC offences. It provides, for example, that any such imprisonment will be subject to the supervision of the ICC. In addition, the ICC may, at any time, decide to transfer a sentenced person to a prison of another state. The Rome Statute does not address the enforcement of any domestic sentence which a person is liable to serve. We are mixing two concepts and the concern is that the ICC would have no jurisdiction under its statute to supervise or make arrangements in respect of domestic sentences that someone might be serving.

If a person serving a sentence here wishes to serve the remainder of the sentence in the person's home state, the person can apply for transfer under the Transfer of Sentenced Persons Acts. The transfer procedure is entirely voluntary. However, EU proposals to provide for involuntary transfer are under consideration. At the moment Ireland is unconvinced that this would be appropriate. The sentenced person, the state to which he or she is seeking a transfer and the state where he or she is serving a sentence all must consent to the transfer under the present law.

The proposed amendment does not address issues such as the level of sentence to be transferred. For example, the Council of Europe Convention on the Transfer of Sentenced Persons uses two concepts regarding the level of sentence to be transferred. On the one hand, there may be continued enforcement which means the sentence as originally imposed is transferred. On the other hand, the sentence may be converted through a judicial or administrative procedure into a decision which substitutes a sanction prescribed by an administering state's own law for the sanction imposed in the sentencing State, which shows that complexities exist. Whereas I appreciate that the Senator's proposal is intended to avoid shuttlecock situations, my concern and that of the Department is that we do not somehow purport unilaterally to create a situation in which the ICC would end up acting in some sense ultra vires the Rome Statute.