Transfer of sentenced persons and serving the sentence in another Member State: options for Romanian prisoners abroad

This article is addressed primarily to families of Romanian citizens who are serving prison sentences abroad, as well as to the persons concerned themselves. In accessible language, it explains:

• what transfer of sentenced persons actually means – and what it does not mean;
• the European, international and national legal framework that allows such transfers;
• the conditions that must be met to request or accept a transfer;
• how the procedure usually works, step by step, when a Romanian is convicted in another EU Member State;
• what effects the transfer has on the sentence (duration, execution regime, parole);
• what the main advantages, limits and risks are in practice;
• what role a Romanian lawyer can play and how the family can help.

You will also find links to official sources (European Union, Council of Europe, Romanian legislation, Ministry of Justice, National Administration of Penitentiaries), as well as internal links to other articles on this website dealing with judicial cooperation, extradition and the European arrest warrant.

For a broader picture of international criminal cooperation, you may also find it useful to read the following Romanian-language articles:

• Extradarea în și din România: proceduri, drepturi și capcane (inclusiv cheltuielile cu extrădarea) ;
• Mandatul european de arestare: ce se întâmplă dacă ești căutat în UE și ce poți face concret ;
• English-language analysis of recognition of Romanian criminal judgments abroad: Recognition of Romanian criminal judgments abroad – EU & CoE frameworks, procedural pitfalls and defence strategies .

1. Legal framework: European, international and national sources

1.1. EU law: Framework Decision 2008/909/JHA

For EU Member States, the main instrument on the transfer of sentenced persons is Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. The full text can be accessed on EUR-Lex: Framework Decision 2008/909/JHA .

In very simplified terms, this framework decision sets common rules so that a judgment delivered in one Member State (the issuing State) can be recognised and enforced in another Member State (the executing State), usually the State:

• where the sentenced person has their habitual residence, or
• of which the person is a national, or
• to which the person will be deported or expelled after serving the sentence.

The European Commission and the Council have also published a Handbook on the application of Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA , which is addressed mainly to practitioners, but from which families can understand at least the basic logic behind transfer procedures in the EU.

1.2. Council of Europe Convention on the Transfer of Sentenced Persons

Beyond the EU framework, Romania is a party to the Council of Europe Convention on the Transfer of Sentenced Persons (ETS No. 112), opened for signature in Strasbourg in 1983, as well as to its Additional Protocol. The convention’s main aim is to facilitate the social rehabilitation of sentenced persons by providing them with the opportunity to serve their sentences in their home country. The text and additional information can be found on the Council of Europe’s website: Convention on the Transfer of Sentenced Persons .

The convention generally applies to relations with non-EU states that are members of the Council of Europe or have acceded to this treaty. The classic conditions include:

• the existence of a final judgment imposing a sentence;
• the fact that the sentenced person is a national of the executing State;
• the consent of the sentenced person (with limited exceptions, for example in some deportation cases);
• the agreement of both States (the sentencing State and the executing State).

1.3. Romanian legislation: Law no. 302/2004 and related acts

At national level, the main legal framework is:

• Law no. 302/2004 on international judicial cooperation in criminal matters, as republished and subsequently amended, which regulates, among other things, the transfer of sentenced persons as a form of cooperation. The consolidated version can be consulted on the official legislative portal: Law no. 302/2004 (RO) .
• Law no. 300/2013, which amended and supplemented Law 302/2004, adapting Romanian law to the requirements of Framework Decision 2008/909/JHA, including in relation to time-limits and recognition procedures.
• Law no. 254/2013 on the execution of custodial sentences and measures involving deprivation of liberty, which regulates the regimes of execution in Romanian prisons and the practical way in which sentences are served after transfer.

Law 302/2004 explicitly lists the transfer of sentenced persons as a form of judicial cooperation (Article 1), alongside extradition, the European arrest warrant, recognition and enforcement of criminal judgments, mutual legal assistance and other instruments.

2. What does transfer of sentenced persons mean in practice?

2.1. Not a new trial, but continuation of the sentence

It is crucial for families and prisoners to understand from the outset that transfer does not mean a re-trial of the case on the merits. Neither the Romanian State nor Romanian courts re-open the foreign criminal case to decide again whether the person is guilty or innocent of the offence for which they were convicted abroad.

Transfer essentially involves:

• recognition of the foreign criminal judgment by the Romanian authorities;
• determining how the sentence will be enforced in Romania (execution regime, possible adaptation of the duration or type of sentence, within the limits of the law);
• continuing enforcement, with deduction of the time already served in the sentencing State.

From the perspective of the sentenced person, the key question is not “will my guilt be reassessed?” but rather: under what conditions and with what practical consequences will I continue to serve my sentence in Romania?

2.2. When is transfer a realistic option?

Transfer can be particularly relevant in situations where:

• the prison sentence is relatively long (for example, several years of imprisonment);
• the sentenced person has family in Romania and wants to be closer to them;
• there is a serious language barrier in the sentencing State;
• the conditions in the foreign prison are particularly difficult for that person;
• the sentenced person plans to reintegrate in Romania after release.

By contrast, there may be situations where, from a strictly technical perspective, transfer is not advantageous (for example, if parole rules are considerably more favourable in the sentencing State, or if detention conditions are clearly better there). It is therefore essential that the decision be discussed with a specialised lawyer, not only based on fragmentary information or rumours.

2.3. Romanian citizens convicted in the EU vs. in non-EU states

For EU Member States, Framework Decision 2008/909/JHA and the national implementation law (Law 302/2004 and subsequent regulations) are the main reference. The procedure is standardised through a certificate annexed to the judgment and is based on the principle of mutual recognition.

For non-EU States (for example Switzerland, Norway, Turkey or countries outside Europe), transfer is normally based on the Council of Europe Convention or on other bilateral/multilateral treaties, where they exist. Conditions may be stricter, and procedures usually take longer and are more dependent on diplomatic channels.

3. General conditions for transfer: what needs to be in place

3.1. Final conviction

As a rule, transfer is considered only where there is a final judgment of conviction. If the case is still pending on appeal or in another ordinary remedy, legal efforts should focus first on the defence in that procedure. In some systems it is possible to discuss transfer at a slightly earlier stage, but mainstream practice is based on a definitive conviction.

3.2. Link with Romania: nationality or habitual residence

For a Romanian citizen convicted abroad, the basic condition is Romanian nationality. In certain situations, domicile or habitual residence in Romania may also be relevant (for example in the case of dual nationality or strong links with another Member State).

In practice, transfer makes sense when:

• the sentenced person is a Romanian national and intends to return to Romania after release;
• their family (spouse, children, parents) is in Romania and there is a coherent reintegration plan there;
• the sentenced person has no real links with the sentencing State, apart from the offence committed there.

3.3. Minimum remaining sentence

Both the Council of Europe Convention and domestic laws usually require a minimum remaining term to be served (often at least six months or one year) for transfer to be reasonable. If only a few months remain to be served, the authorities may consider that the transfer procedure itself would take longer than the remaining sentence and therefore not be efficient.

3.4. Double criminality and absence of grounds for refusal

Framework Decision 2008/909/JHA and the Council of Europe Convention proceed from the idea that the conduct for which the conviction was pronounced must be an offence in both States (the so-called double criminality requirement), subject to some exceptions for specific categories of offences listed in EU instruments.

In addition, the executing State may invoke certain grounds for refusal, such as serious human rights concerns, incompatibility of the sentence with constitutional principles or the maximum sentence set by national law, or other public policy issues. In practice, such refusals are relatively rare, but they may arise in sensitive or complex cases.

4. Procedure for a Romanian citizen convicted in another EU Member State

4.1. Who can initiate the procedure?

The initiative may come from:

• the sentenced person, who submits a written request for transfer to the prison administration or competent authority in the sentencing State;
• the sentencing State, which, for reasons of penal policy or social reintegration, considers it more appropriate for the person to serve the remainder of the sentence in Romania;
• the Romanian authorities (executing State), which may be interested in taking over their own nationals, especially where they and their families strongly request transfer.

The family cannot, as such, “decide” on transfer, but it can:

• help draft requests to the authorities in the sentencing State;
• retain and coordinate a local lawyer and a Romanian lawyer;
• provide documents and information showing the person’s links with Romania and their reintegration prospects.

4.2. Typical steps (simplified)

A simplified outline of the procedure for transfer of a Romanian national convicted in another EU Member State generally looks like this:

1. The sentenced person or the sentencing State expresses an intention to transfer (formal written request, standard forms, discussions with prison authorities).
2. The sentencing State contacts the Romanian authorities (in particular the Ministry of Justice as central authority) to check whether Romania agrees to take over enforcement.
3. For EU cases, the competent authority of the sentencing State draws up the standard certificate provided for by Framework Decision 2008/909/JHA and sends it, together with the judgment, to the Romanian authorities.
4. In Romania, the Ministry of Justice forwards the documents to the competent court (usually the tribunal of the person’s domicile or another court determined by Law 302/2004), which will examine the recognition and adaptation of the sentence.
5. The Romanian court schedules a hearing, hears the person (if possible, also by videoconference), the prosecutor and, where relevant, the defence lawyer, checks whether the conditions are met and delivers a decision on recognition/adaptation.
6. After the decision becomes final, the authorities organise the physical transfer of the person to Romania (escort, handover between prison administrations, transport, reception by the National Administration of Penitentiaries).

In practice, the procedure may take several months, sometimes longer, depending on:

• how quickly documents are translated and authenticated;
• the level of cooperation between the two States;
• the complexity of the case and any additional clarifications requested by the Romanian court.

4.3. What happens after arrival in Romania?

Once transferred, the sentenced person is taken over by the National Administration of Penitentiaries (ANP) and allocated, according to legal criteria, to a specific execution regime (open, semi-open, closed or maximum security), based on Law no. 254/2013 and internal ANP regulations.

The period already served abroad is deducted from the total sentence. The person will then benefit, in principle, from the same rights and obligations as any other prisoner in Romanian prisons (visits, correspondence, access to medical, psychological and religious services, work, education, parole etc.), subject to the specific features of each case.

5. Effects of transfer on the sentence: what changes and what stays the same

5.1. Length of sentence: in principle, unchanged

The basic rule is that transfer does not, in itself, reduce the length of the sentence. The foreign judgment is recognised and, where necessary, the Romanian court will adapt the sentence, but cannot make it harsher.

Adaptation may concern, for example:

• conversion of a type of custodial measure not known in Romanian law into an ordinary prison sentence;
• adjustment of the duration if the sentence imposed exceeds the maximum provided by Romanian law for the equivalent offence (the court cannot set a higher sentence than the Romanian statutory maximum).

5.2. Deduction of time served abroad

All time actually served in the sentencing State – including pre-trial detention, house arrest or other forms of deprivation of liberty – is deducted from the sentence to be served in Romania. For example, if a person has been sentenced to six years’ imprisonment and has already served two years abroad, they will have, in principle, around four years left to serve in Romania, subject to any adjustments made by the Romanian court.

5.3. Execution regime and parole

After transfer, the execution regime and conditions for parole are those provided by Romanian law (Law no. 254/2013 and implementing regulations). This means that:

• the type of regime (closed, semi-open, open) is determined according to Romanian criteria (length of sentence, behaviour, criminal record, risk assessment), not according to the classification used in the sentencing State;
• parole will be examined by Romanian courts based on the legal fractions in Romanian law and the person’s behaviour in detention, not according to the rules of the sentencing State.

As a result, in some cases transfer may be more advantageous (if the Romanian system is more predictable or more favourable for parole), while in others it may be less favourable (if the foreign system provides earlier or more flexible parole). The assessment must always be case-specific and done with a lawyer.

5.4. Impact on other criminal proceedings

Transfer does not allow Romania to re-try the case on the merits. The principle of ne bis in idem (not being tried or punished twice for the same offence) continues to apply. Once the foreign conviction has become final and has been recognised for the purpose of enforcement, Romania cannot open a fresh criminal trial for the same facts, although there may be other separate cases concerning different conduct.

6. Advantages and limits of transfer for Romanian prisoners and their families

6.1. Practical advantages

The most frequently cited advantages include:

• proximity to family – lower travel costs for visits, possibility of more frequent visits, and a stronger support network;
• overcoming the language barrier – easier communication with prison staff, doctors, psychologists, social workers and probation officers;
• easier access to a Romanian lawyer, who can visit more frequently and discuss strategy regarding parole or other legal steps;
• better conditions for preparing social reintegration in Romania (housing, job search, rebuilding family relationships).

6.2. Limits and risks

On the other hand, families and prisoners must be aware of several limits and potential risks:

• material conditions in Romanian prisons may in some cases be less favourable than in certain Western European systems;
• the Romanian regime of parole may be stricter than the regime that would have applied in the sentencing State;
• the procedure can take longer than expected (several months or even more than a year), which may lead to frustration if expectations are unrealistic;
• transfer can affect other plans (for example, obtaining or maintaining residence in the sentencing State after release).

Consequently, transfer should be seen as a strategic decision, not only an emotional reaction. Families should have frank discussions with the sentenced person and with a lawyer in order to weigh up advantages and disadvantages in the specific circumstances of the case.

7. Transfer from Romania to another Member State: Romanians with residence abroad

The reverse situation also arises: persons sentenced in Romania who have their habitual residence or family in another EU Member State and wish to serve their sentence there. Law no. 302/2004 and its implementing rules also cover this scenario.

The procedure is broadly similar:

• the person sentenced in Romania (or the Romanian State) requests transfer to the executing State (for example, the State where they have lived and worked for many years);
• the Romanian authorities send the judgment and the standard certificate to the executing State;
• the executing State assesses whether it accepts the transfer and, if so, practical arrangements are made for the handover.

Here too, benefits and disadvantages must be analysed carefully: prison conditions, execution regimes, parole rules and the impact on family members who might remain in Romania.

8. Connection with extradition, the European arrest warrant and other cooperation tools

The transfer of sentenced persons is part of the broader framework of international judicial cooperation in criminal matters, which also includes:

• extradition – surrendering a person to another State for prosecution or to serve a sentence;
• the European arrest warrant (EAW) – a simplified surrender procedure between EU States for persons sought for prosecution or to serve a sentence;
• recognition and enforcement of criminal judgments in other States;
• transfer of criminal proceedings and other forms of mutual legal assistance.

The essential difference is that extradition and the European arrest warrant concern, mainly, the surrender of a person to stand trial or to start serving a sentence, whereas the transfer of sentenced persons generally takes place after a final conviction, in order to continue serving the sentence in a more suitable environment.

For a more complete understanding, you may wish to read:

• the Romanian article on extradition to and from Romania ;
• the article on the European arrest warrant ;
• other posts on preventive measures (pre-trial detention, house arrest, judicial control), relevant for earlier stages of the criminal process.

9. The lawyer’s role: coordinating between two legal systems

Transferring a sentenced person involves cooperation between two legal systems, two prison administrations, two languages and two legal cultures. In such a context, the lawyer’s role is crucial – both in the sentencing State and in Romania.

9.1. The lawyer in the sentencing State

The local lawyer can:

• explain to the sentenced person and their family the legal framework on transfer in that State;
• draft and submit the transfer request to the competent authorities;
• monitor the administrative progress of the request and communicate with prison and judicial authorities;
• cooperate with the Romanian lawyer in order to harmonise strategies (for example, on when to apply, what documents are needed, or whether there are pending appeals that should be resolved first).

9.2. The Romanian lawyer

The Romanian lawyer can:

• advise the family and the sentenced person on the concrete effects of transfer (execution regime, parole, rights in Romanian prisons);
• analyse the foreign judgment and its classification under Romanian criminal law;
• prepare and submit submissions or requests in the recognition/adaptation procedure before the Romanian court;
• check that all time served abroad is properly deducted from the total sentence;
• assist the person after transfer (requests for change of regime, parole, complaints about detention conditions, access to medical care etc.).

In more complex cases (for example economic crime or organised crime cases), it may also be useful to involve a lawyer with specific experience in international judicial cooperation, familiar with both EU instruments and the Council of Europe Convention.

10. Conclusions: when does it make sense to seriously consider transfer?

For a Romanian citizen serving a prison sentence in another country, the transfer of the sentence to Romania is neither a procedural trick nor a guarantee of a reduced sentence. It is, however, a serious legal instrument designed at European and international level to promote social reintegration and to limit the isolating effects of serving a sentence in a foreign country.

It is worth taking transfer seriously when:

• your real ties (family, housing, long-term plans) are in Romania;
• distance and the language barrier make serving the sentence in the foreign State much more difficult;
• together with your lawyer, you conclude that execution and parole rules in Romania are, overall, at least comparable with those in the sentencing State;
• you accept that, once transferred, you will serve your sentence according to Romanian rules, not the rules that would have applied in the sentencing State.

For families, transfer can mean:

• a greater chance to maintain close and regular contact with the person in prison;
• easier involvement in the reintegration process (visits, moral support, preparation of a life plan after release);
• more effective communication with the lawyer and with Romanian authorities, without language barriers.

Each situation is, however, unique. This article does not replace individual legal advice, but is intended to provide a framework for discussion with the lawyer, the sentenced person and their family.