Execution of Sentence of a Foreign National Convicted in Turkey in Their Home Country: Transfer of Sentenced Persons

It may be legally possible for foreign nationals who are in a penal institution in Turkey due to a final conviction to serve the remaining portion of their sentence in another country of which they are citizens or with which they have strong social ties. This process, transfer of sentenced persons is referred to as and is conducted within the framework of applicable international conventions and bilateral agreements, primarily the Law No. 6706 on International Judicial Cooperation in Criminal Matters.

The transfer of a sentenced person does not mean the abolition of the sentence or the reassessment of the conviction. To execute the transfer, statutory conditions must be met, necessary approvals from the relevant states must be obtained, and the consent requirements stipulated by the applicable regulations must be fulfilled.

This article examines the conditions for the transfer of foreign inmates serving prison sentences in Turkey to their home countries, the application procedure, required documents, the execution regime, and relevant precedents of the Court of Cassation.

What is the Transfer of Sentenced Persons?

The transfer of sentenced persons is an international judicial cooperation procedure carried out to enable a person serving a prison sentence in one country due to a final conviction to continue serving the remaining sentence in another country.

One of the fundamental aims of this institution is to contribute to the sentenced person's preservation of ties with their family and social environment and to their reintegration into society. However, a transfer is not a procedure completed solely upon the request of the sentenced person. The conditions of the relevant legislation and the assessments of the states are decisive.

Purpose of the Transfer of Sentenced Persons

Individuals held in penal institutions in foreign countries may encounter difficulties such as language barriers, being away from their families, and separation from their social environment. The transfer of sentenced persons may allow, within the framework of applicable treaty and statutory provisions, the execution of the sentence in a place closer to the individual's social environment.

However, the goal of social rehabilitation does not mean that every application will be accepted. The transfer must be handled in conjunction with the public interest, criminal justice, and security assessments of the relevant states.

Differences Between Prisoner Transfer, Extradition, and Transfer of Enforcement

These three legal mechanisms, which produce distinct legal consequences in international criminal law, must be distinguished from one another.

• Prisoner transfer: The transfer of a convicted person, who has begun serving a prison sentence in one country, to another country to serve the remainder of their sentence within the framework of applicable legal regulations.
• Extradition: The surrender of a person to another state for the purpose of conducting an investigation or prosecution, or executing a final conviction. The conditions for extradition are determined within the framework of Law No. 6706 and applicable international agreements.
• Transfer of enforcement: A separate method of judicial cooperation concerning the execution of a conviction rendered by the court of one state in another state. Provisions regarding this mechanism are set forth in Article 0 and subsequent articles of Law No. 6706.

It is particularly important not to confuse the transfer of enforcement with the transfer of prisoners. Each institution has different conditions, applicable procedures, and consequences regarding the execution of the conviction.

Legal Bases for the Transfer of Sentenced Persons

Law No. 6706 on International Judicial Cooperation in Criminal Matters

Regarding the transfer of prisoners from Turkey to a foreign state, the primary domestic legal regulation is Article 32 of Law No. 6706 on International Judicial Cooperation in Criminal Matters.

Article 32 of the Law regulates the conditions for transfer, the documents to be prepared upon request, the status of judicial fines and trial expenses, information regarding the enforcement regime, and the transfer decision. Article 33 of the Law contains provisions concerning the consequences of enforcement in the foreign state following the transfer.

For the current text of the legislation The consolidated text of Law No. 6706 may be examined. The applicability of international treaties with respect to Turkey must also be evaluated.

Convention on the Transfer of Sentenced Persons

The Convention on the Transfer of Sentenced Persons was opened for signature in Strasbourg on March 21, 1983. Known by its ETS No. 112 designation, the convention establishes the fundamental framework regarding the transfer of sentenced persons among the contracting states.

In the application of the convention, matters such as the sentenced person's connection to the state to which they will be transferred, the finality of the judgment, the remaining sentence duration, consent requirements, and acceptance by the states are of significance. In a concrete application, the status of the convention's entry into force with respect to the contracting states, as well as any reservations and declarations, must be verified.

Official information regarding the convention can be accessed via the Council of Europe Treaty Office's Convention on the Transfer of Sentenced Persons page . Turkey's ratification and entry into force information regarding the convention can also be found on ETS No. 112 parties and ratification records can be checked via.

Additional Protocol and Bilateral Agreements

The additional protocol to the Convention on the Transfer of Sentenced Persons may include exceptions regarding the consent requirement with respect to sentenced persons who are subject to a deportation or expulsion order under certain conditions. It should not be assumed that these exceptions apply automatically to every foreign sentenced person. The entry into force status of the relevant protocol, the state party status, and the circumstances of the specific case must be evaluated together.

Bilateral agreements containing provisions regarding the transfer of sentenced persons may also exist between Turkey and certain states. When determining the applicable legal basis, The list of the Ministry of Justice's treaties on mutual legal assistance in criminal matters and the agreements in force with the respective state must be examined.

Conditions Required for Transfer from Turkey to Home Country

Paragraph 1 of Article 32 of Law No. 6706 sets forth the conditions that must be simultaneously met for the transfer to a foreign state while the execution of a conviction rendered in Turkey is ongoing.

1. Citizenship or Strong Social Ties

The convicted person must be a citizen of the state to which they will be transferred or have strong social ties with that state. The sufficiency of the social ties is evaluated within the framework of the relevant regulations and the specific circumstances of the case.

Merely having a family member in a certain country or having lived in that country in the past does not mean that strong social ties are proven in every case. Documents demonstrating residency, family relations, and other connections may carry significance in the evaluation.

2. Consent of the Convicted Person or Their Legal Representative

Pursuant to subparagraph (b) of the first paragraph of Article 32 of Law No. 6706, the consent of the convicted person or their legal representative is required. Such consent must be obtained in compliance with the relevant international regulations, and the information procedures required by the transfer process must be carried out.

When evaluating the consent condition, the provisions of the relevant treaty, any exceptions, and the procedural guarantees regarding the will of the convicted person must be examined together.

3. Finality of the Conviction

The conviction subject to the transfer must be final. A conviction that is not final and is subject to pending appellate or supreme court review does not meet the fundamental condition of this prisoner transfer procedure.

Therefore, the legal status of the convicted person, the finality endorsement on the judgment, and the enforcement proceedings must be verified through up-to-date records.

4. Dual Criminality

The act forming the basis of the conviction must also constitute a crime under the laws of the requested State. It is not required that the act be designated under the same name in both countries; the essential requirement is that it constitutes an offense within the framework of applicable legal rules.

In the specific case, it cannot be definitively stated that this condition has been met without examining the elements of the offense and the criminal legislation of the foreign State.

5. Remaining Imprisonment Sentence of at Least Six Months

Pursuant to subparagraph (d) of the first paragraph of Article 32 of the Law, unless otherwise decided by the central authorities, there must be a remaining term of imprisonment of at least six months to be served in a penal institution as of the date of the request.

In this assessment, not only the total sentence imposed but also the remaining period required to be served as of the date of the transfer request is taken into account. The calculation of the remaining sentence must be verified through the sentence computation sheet (müddetname) and relevant execution records.

6. Absence of Investigation or Prosecution for Another Crime in Turkey

Subparagraph (e) of the first paragraph of Article 32 of Law No. 6706 stipulates that there must be no ongoing investigation or prosecution against the convicted person in Turkey for another crime.

Therefore, while evaluating the application, it must be investigated whether the convicted person is subject to any other criminal investigation or prosecution. The status of the file and any ongoing judicial proceedings are of significance in evaluating the transfer conditions.

7. Judicial Fines and Judicial Expenses

The fourth paragraph of Article 32 of the Law specifically regulates cases where a judicial fine is imposed together with a prison sentence. In order for a transfer decision to be rendered, the judicial fine must be paid.

In the event that the judicial fine is not paid, the number of days corresponding to the unpaid portion is converted into a prison sentence. The period served in Turkey is primarily credited against this converted prison sentence. The remaining balance that does not cover this period is added to the imprisonment sentence required to be served. The resulting sentence amount is communicated to the foreign State, and a transfer decision may be rendered upon its acceptance.

Pursuant to the fifth paragraph of Article 32 of the Law, it is also a rule that the litigation expenses have been paid. However, if it is understood that the convicted person is not in a position to pay these expenses, a transfer may be decided without the expenses being paid.

8. Public Interest and Appropriateness of Transfer

The existence of statutory conditions does not mean that the transfer request will necessarily be accepted. In accordance with the third paragraph of Article 32 of the Law, the request may be denied by the central authority in cases where the conditions for transfer are not met, it is understood that the transfer will not contribute to social rehabilitation, it does not serve the purposes of criminal justice, or it is not compatible with Turkey's national security and vital interests.

Therefore, not only formal conditions but also the evaluations to be made within the framework of relevant laws and conventions are of importance during the transfer process.

Comparison of Transfer of Sentenced Persons with Other Judicial Cooperation Mechanisms

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Application Method and Procedure to be Followed

The transfer of sentenced persons is an official process involving multiple institutional and state authorities. The evaluation of the application is subject to the document and approval procedures stipulated by the relevant laws and treaties.

Competent Authority

The competent authority to which the application will be made and the procedure to be followed must be determined based on the applicable regulation and the nature of the application. Requests made by the sentenced person or their legal representative may be processed through the relevant penal institution and the Office of the Chief Public Prosecutor conducting the execution proceedings. For applications to be made through counsel, the competent authority where the case file is located and the procedural requirements must also be verified.

The relevant units of the Ministry of Justice act as the central authority in international judicial cooperation proceedings. For the current division of labor and application procedures, the official website of the Directorate General for Foreign Relations and European Union of the Ministry of Justice may be examined.

Documents That May Be Prepared

Pursuant to the second paragraph of Article 32 of Law No. 6706, the following documents shall be prepared or obtained from the relevant authorities to be transmitted to foreign state authorities:

• A certified copy of the conviction judgment,
• The texts of the provisions of the law upon which the judgment is based,
• A document stating that the convicted person or their legal representative consents to the transfer,
• A document showing the remaining sentence to be executed,
• If deemed necessary, medical documents showing the health status and treatment recommendations,
• Translations of other documents deemed necessary, prepared in the manner requested by the relevant authorities.

The complete list of documents, translation conditions, and certification requirements may not be identical in every case. Therefore, actions must be taken in accordance with the applicable treaty and the requests of the relevant authorities.

Notification of the Execution Regime

Pursuant to the sixth paragraph of Article 32 of Law No. 6706, information shall be requested from the state to which the transfer will be made regarding the duration the convicted person will remain in the penal institution and how the execution will be carried out. This information shall be served upon the convicted person.

This regulation aims to ensure that the convicted person is informed about the execution conditions they will encounter following the transfer. Proceedings regarding the notification and consent of the convicted person must be carried out within the framework of applicable legislation.

Transfer Decision and Actual Surrender

Pursuant to the seventh paragraph of Article 32 of the Law, upon the consent of the foreign state, the transfer of the convicted person shall be decided by the Minister of Justice. The physical surrender procedures are carried out within the framework of official coordination conducted between the competent authorities of the respective states.

The submission of the application or the preparation of documents does not mean that the transfer will definitely take place. The outcome depends on the fulfillment of the relevant conditions and the evaluation of the competent authorities.

Legal Consequences of the Transfer of Sentenced Persons

Principle of Continuation of Enforcement

The transfer of a convicted person does not aim to eliminate the sentence or conduct a retrial. In the applicable regime regarding the transfer of a convicted person, the principle of continuation of enforcement is significant in terms of the nature of the conviction judgment and the duration of the sentence.

The continuation of enforcement model does not mean that the merits of the conviction rendered by the sentencing state are re-evaluated by another state. However, matters concerning the daily administration of enforcement are handled within the framework of applicable international conventions and the legislation of the enforcing state.

Conducting Adaptation Proceedings

One of the fundamental differences between the transfer of a convicted person and the transfer of enforcement arises in terms of adaptation proceedings. In the event that enforcement is taken over within the scope of Article 26 of Law No. 6706, adaptation proceedings are stipulated. Conversely, the automatic application of the same provisions is not applicable to the transfer of a convicted person.

This distinction was also addressed in the decision of the 10th Criminal Chamber of the Court of Cassation dated October 5, 2023, numbered E. 2023/7824 and K. 2023/8434.

Amnesty and Subsequent Developments Affecting the Sentence

Article 33 of Law No. 6706 contains regulations regarding the consequences of the enforcement of the transferred convict. Circumstances such as the completion of enforcement or the partial or complete elimination of enforceability may also produce legal effects under Turkish law under the conditions stipulated by the law.

The impact of developments such as amnesty, the elimination or mitigation of the crime or sentence on the specific case must be evaluated by the competent authorities within the framework of applicable law and convention provisions.

Decision of the 10th Criminal Chamber of the Court of Cassation Dated 5 October 2023

Citation details: Court of Cassation 10th Criminal Chamber, E. 2023/7824, K. 2023/8434, D. 05.10.2023.

The decision concerns the request of a convict transferred to Turkey for the execution of a conviction rendered in Iran to have the foreign court judgment adapted in accordance with Turkish law.

In the dispute, adaptation of the conviction rendered by the foreign court pursuant to Turkish criminal law was requested; and the distinction between the transfer of convicts and the transfer of execution was evaluated throughout the judicial process.

The Court of Cassation stated that the primary purpose of transferring convicts is to ensure their social rehabilitation by serving their sentence within their own social environment, and that this institution is not intended to mitigate the sentence imposed. In the decision, the transfer of convicts and the transfer of execution were addressed as distinct methods of judicial cooperation, and it was explained that provisions regarding adaptation proceedings cannot be automatically applied to the transfer of convicts.

The full text of the decision The text of the decision of the Court of Cassation 10th Criminal Chamber, numbered E. 2023/7824, K. 2023/8434 can be accessed via. This link is not the official Court of Cassation case law database, but a third-party source publishing the text of the decision.

It must be taken into consideration that the specific case of the decision pertains to a transfer from Iran to Turkey. While the decision is significant in terms of clarifying the legal nature of the transfer of convicts, it does not indicate that every transfer application from Turkey to a foreign state will result in the same manner.

Key Considerations in Practice

Timely and Complete Submission of the Application

The finality status of the conviction, the calculation of the remaining sentence, the required documents, and the applicable treaty relationship with the foreign state must be verified prior to the application. Missing documents or an incorrect legal basis may cause delays in the proceedings.

Separate Evaluation of Judicial Fines

In cases involving a judicial fine, the special regulation under the fourth paragraph of Article 32 of Law No. 6706 must be taken into consideration. Apart from the custodial sentence, the status of the judicial fine and the duration of the imprisonment resulting from conversion, if any, may affect the transfer evaluation.

Existence of Another Investigation or Prosecution

It must be investigated whether there is an ongoing investigation or prosecution against the convicted person in Turkey for another crime. Subparagraph (e) of the first paragraph of Article 32 of the Law regulates this matter among the conditions for transfer.

No Assertion of Certainty Regarding the Outcome of the Application

Making a transfer request does not mean that it will be accepted or completed by a certain date. The duration and outcome of the proceedings may vary depending on the approach of the states concerned, the status of the file, and applicable legal regulations. Therefore, definitive timeframes or promises of outcomes lacking a concrete basis should not be used.

Frequently Asked Questions

Can a foreign convict serve the remaining part of their sentence in their own country?

Yes, it may be possible to enforce the remainder of the sentence in another state, provided that the conditions of the applicable law and international conventions are met. However, transfer is neither an automatic right nor a procedure yielding a guaranteed outcome.

Is it necessary for the conviction to be final for the transfer of a convict?

Yes. The first paragraph of Article 32 of Law No. 6706 requires that the conviction judgment be final.

How much remaining sentence must there be for the transfer of a convict?

Pursuant to Article 32 of the Law, unless otherwise decided by the central authorities, there must be at least six months of imprisonment remaining to be enforced as of the date of the request.

Does the transfer of a convicted person result in a reduction of the sentence?

No. The primary purpose of the transfer of a convicted person is the continued enforcement of the sentence in another state; it is not to mitigate the sentence or reassess the conviction.

Can a transfer be executed if there is a judicial fine?

In cases involving judicial fines, the fourth paragraph of Article 32 of Law No. 6706 shall apply. The judicial fine must be paid for the transfer; otherwise, conversion and set-off procedures specified in the law shall come into question.

Will the transfer request be rejected if the judicial expenses have not been paid?

Pursuant to the fifth paragraph of Article 32 of the Law, the general rule is that judicial expenses must be paid. However, if it is understood that the convicted person lacks the financial capacity to pay, a transfer decision may be rendered even without the payment of expenses.

Is transfer possible if there is another criminal investigation in Turkey?

Subparagraph (e) of the first paragraph of Article 32 of Law No. 6706 stipulates that there must be no investigation or prosecution in Turkey for another crime. Therefore, the status of ongoing proceedings must be taken into account when evaluating the transfer request.

Within what timeframe is an application for the transfer of a convicted person concluded?

It cannot be said that there is a fixed statutory completion period applicable to every case. The duration of proceedings may vary depending on the preparation of documents, the assessment of foreign state authorities, and relevant international procedures.

Does the execution of sentence stay upon filing an application for the transfer of a convicted person?

No. The filing of an application alone does not stay enforcement proceedings. Until the transfer is completed, the execution of the sentence continues within the framework of applicable legislation.

Which state's enforcement rules apply to the transfer of a convicted person?

This matter depends on the applicable international convention and transfer regime. Under the continuation of enforcement model, while the sentencing state's decision is taken as the basis regarding the nature and duration of the conviction, matters relating to the administration of enforcement are determined within the framework of relevant regulations.

Conclusion

The transfer of foreign nationals serving a finalized prison sentence in Turkey to their home countries is a mechanism of judicial cooperation evaluated within the scope of Article 32 of Law No. 6706 on International Judicial Cooperation in Criminal Matters and applicable international conventions.

Regarding the transfer, factors such as citizenship or strong social ties, consent, a finalized conviction, dual criminality, the remaining sentence duration, the absence of any other investigation or prosecution, and financial obligations are of significant importance. Furthermore, the acceptance of the respective states and the administrative assessments prescribed by law affect the outcome of the process.

Distinguishing between the transfer of a convicted person and the transfer of enforcement is particularly important with respect to adaptation proceedings and the execution of the sentence. Each application must be evaluated within the framework of the conventions in force with the relevant state and the specific circumstances of the case file.

Author Information

Atty. Batın Yılmaz
Istanbul Bar Association Bar Registry No: 77008

This article has been prepared for general legal information purposes. The specific circumstances of the case, current legislation, and applicable international agreements must be evaluated separately.

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