Document Type

Article

Disciplines

International Law

Abstract

The increasing mobility of people across state frontiers is signum temporis. One of the least desirable consequences of this phenomenon is the increasing frequency of criminal offenses committed by foreigners.' Scholars in the Member States of the Council of Europe have extensively studied criminality among foreigners. Most of these studies treat this problem from the criminological point of view, concentrating primarily on explaining the sources and extent of this criminality.

For ages the criminality of foreigners has caused problems for criminal justice systems. Two questions have been, and continue to be, of particular importance:

(a) where should foreigners who have committed an offense abroad be prosecuted and tried, abroad (at the place of commission) or in their home countries?; and

(b) how should the foreigners be treated?

The first question lies in the field of jurisdiction and its solution requires a choice between the "territorial principle" and the "personal principle." However, the choice is difficult since many arguments may be made in favor of both principles." As a consequence most attempts to "distribute" the jurisdiction of these offenses to the different states have failed." On the basis of various theories of jurisdiction, states have tried to categorize offenses and confer jurisdiction over some of them to a particular state. Recently the "principle of reasonableness" has been proposed as a further guide to determining jurisdiction. However, the basic premise of these proposals is that the proceedings should be treated as a whole, from the first step of investigation to the enforcement of the judgment.

But why should not jurisdiction over one offense be divided between two states? Precisely this approach has been taken in establishing new international legal procedures to permit the transfer of criminal proceedings, prisoners and the supervision of persons under probation or parole.7 These procedures attempt to reconcile the modern theory of penal rehabilitation with the practical problems posed when foreign nationals break the law.

The modern view is that the reintegration of the offender into society should be achieved not solely through the enforcement of a sanction, but through the criminal proceedings as well. This implies that in the case of concurrent jurisdiction, the state best suited for rehabilitation should prosecute the offender. In analyzing this question, the offender's customs, language and social ties should be considered carefully without, however, disregarding the need for effective law enforcement. Some states have adopted the practice of expelling a foreigner who has committed a relatively minor offense, instead of prosecuting him.' But this merely evades the issue of how to deal with the criminal offenses of foreigners and, in particular, it ignores the fate of foreigners who are not expelled and who serve their sentences in foreign jails. A compromise between the conflicting interests of an effective enforcement of the law and an improved rehabilitation of the offender must be found.

In the case of prisoners who have already passed through criminal proceedings, transfer proceedings serve the purpose generally held to underlie modern criminal sanctions. Over the years the purpose of imprisonment has changed from retribution to reform of the offender. Many centuries ago Ulpian, the renowned Roman jurisconsult and advisor to Emperor Alexander Severus, uttered the famous words: "Carcer enim ad continendos homines, non ad puniendos haveri debet" (Prison should serve the purpose of confining people, not punishing them). Hundreds of years later, the 1870 National Congress on Penitentiary and Reformatory Discipline held in Cincinnati, Ohio stated: "The supreme aim of prison discipline is the reformation of criminals, not the infliction of vindictive suffering." 9 Vindictive punishment and infliction of suffering cannot be the goal of any civilized society. George Bernard Shaw once stated: "If you are to punish a man . . . you must injure him. If you are to reform a man . . . you must improve him, and men are not improved by injuries." It is commonly accepted in the field of corrections that the transformation of an asocial person into a responsible citizen is not furthered by prolonged isolation from his community, work and normal life.

When foreigners serve their terms in foreign prisons, however, the humanitarian shift from pure retribution to rehabilitation is more than doubtful. For many reasons, including culture, language, customs, religion and social alienation, their situation is much more difficult than that of other sentenced persons 2 as the degree of harshness and pain inflicted by imprisonment is much greater for foreigners than for nationals." In some instances the conditions of incarceration and the treatment of foreigners have been so atrocious and inhumane that they have been considered unacceptable and intolerable in their home countries, thus leading to international conflicts.

Generally the correctional system is ill-adapted to advance the goal of reintegrating foreign offenders into society. In many instances foreign nations simply cannot accommodate very basic human problems such as the practice of religion or contact with family when imprisoning foreigners. How easy would it be for a Thai Buddhist to practice his religion effectively in an Arizona prison? How often could a Mexican citizen have his family visit him in an Australian prison?

Undoubtedly reintegration is considerably facilitated when the sanctions imposed on the offender are carried out in his state of origin rather than in the state in which the offense was committed and judgment passed.

The transfer of prisoners to their home country and the execution of foreign penal judgments seem appropriate solutions. Both have the purpose of permitting persons convicted of crimes in a foreign state to complete their sentence in their national states. These solutions are founded on three premises: (a) that a state has an interest in the treatment of its citizens abroad; (b) that a state has an interest in the future behavior of its citizens; and (c) that states have a common interest in preventing and suppressing criminality.

The first premise emphasizes the humanitarian nature of the scheme in alleviating the hardships of serving sentences in foreign jails and the accompanying personal hardship for the offender and his family. The second premise recognizes that rehabilitation is largely a matter of reintegration into society, and therefore the social context in which it is attempted has a crucial impact on the likelihood of its success.16 Moreover, this consideration recognizes that supervised custody in an alien environment may become ineffective as an alternative to imprisonment for a variety of obvious reasons. Permitting offenders to serve their sentences in their national states enhances the chances of successful reintegration, a matter of particular importance to the state to which offenders will eventually return. Finally, the third premise supposes that both the "country of judgment" and the "country of the offender" are, or at least may be, interested in the creation, development and use of transfer procedures.

Accessibility Requirements

1

Download

Share

COinS