Transit may occur in different situations:
1° Transfer transit :
A/ Transit through a third State in the event of surrender of a person who has been definitively sentenced and imprisoned in a State (the sentencing State) to his or her State of origin (the executing State) to serve the remainder of the sentence that has been imposed:
• UE-Member States: FD 2008/909/JHA on custodial sentences except for Bulgaria ;
a) Requirements for transfer (art. 15) : If the person is in the territory of the sentencing State, he or she shall be transferred to French territory on a date set by the Minister of Justice in agreement with the competent authority of that State, no later than thirty days from the date on which the decision to recognize the sentence and enforce the custodial sentence or security measure has become final.
A person transferred to French territory for the enforcement of a custodial sentence or a detention order imposed by a court of a Member State may not be sought, prosecuted, sentenced or detained for any act prior to his transfer, other than that for which he was transferred, unless he is in one of the following cases:
1° Having had the opportunity to do so, he or she did not leave the national territory within forty-five days of his or her final release, or voluntarily returned to it after having left it ;
2° The offence is not punishable by a custodial sentence or security measure;
3° No custodial or restrictive measure is applied during the proceedings for the offense charged;
4° The convicted person is not subject to a penalty or a measure involving deprivation of liberty for the offence;
5° He/she has consented to the transfer;
6° He or she has expressly renounced, after his or her transfer, before the criminal court of the place where the sentence is to be served and under the conditions provided for in the last two paragraphs of article 695-19, the benefit of the rule of speciality provided for in the first paragraph of this article, his or her renunciation being irrevocable;
7° The competent authority of the sentencing State expressly consents to this rule being waived.
b) Requirements for transit (art. 16): the issuing State transmits the request for transit accompanied by the certificate specifying:
1° The designation of the convicting State and the court that rendered the conviction ;
2° The identity of the person against whom the sentence has been passed, the address of his or her last known address or addresses and an indication that he or she is in the sentencing State or in the administering State;
3° The date of the sentencing decision and the date on which the decision became final;
4° The reasons for the transmission of the sentencing decision under article 728-11 of the French criminal code of procedure ;
5° The date, place and circumstances in which the offence(s) was (were) committed, as well as the nature, the legal qualification and a complete description of the facts;
6° The nature of the custodial sentence or security measure to be served, its total duration, the portion already served and the expected date of completion;
7° The indication, if any, of the sentenced person's consent to the transmission of the sentencing decision;
8° Any observations of the sentenced person on the transmission of the sentencing decision.
The authority requesting the transit is informed when the Minister of Justice cannot guarantee that the convicted person will not be prosecuted, detained or subjected to any other restriction of his or her personal liberty on French territory, for acts or convictions prior to his or her departure from the territory of the convicting State (article 728-73 Code of criminal procedure).
• Non-UE countries: Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983
a) Requirements for transfer: article 3
- the sentenced person must be a national of the executing State;
- the judgment must be final;
- the sentence to which the convicted person is still subject must be at least six months at the date of receipt of the request for transfer, or indeterminate;
- the convicted person or, where one of the two States considers it necessary because of his age or physical or mental condition, his representative must consent to the transfer;
- the acts or omissions which gave rise to the sentence must constitute a criminal offence under the law of the requested State or would constitute such an offence if committed in its territory; and
- the sentencing State and the administering State must have agreed on the transfer.
b) Requirement for transit : article 16
The transit may be refused if the convicted person is a national of the executing State or if the offence for which the person has been convicted do not constitute an offence under the law of the executing State.
B/ Temporary transfer of persons held in custody for the purpose of carrying out an investigative measure :
• Directive 2014/41 on EIOs (Art. 22§4 and 23)
a) Requirements for transfer: the practicalities for the temporary transfer of a person, including details of his or her conditions of detention in the issuing State, and the deadlines for his or her transfer from and return to the territory of the executing State, shall be determined by mutual agreement between the issuing and executing States, taking into account the physical and mental condition of the person concerned, as well as the level of security required in the issuing State.
b) Requirements for transit: article 22 §4 : The request is accompanied by any necessary documents.
• MLA Convention of 29 May 2000
a) Requirements for transfer: Article 9 provides that consent is not mandatory. If the consent is required, a statement of consent or a copy thereof is provided to the requested State without delay.
b)Requirements for transit: Article 9 §5 of the Convention refers to article 11§2 of the European Convention of 20 April 1959 settling the requirements for transit, to wit : the request is accompanied by any useful documents.
C/ Transfer or a person in custody for the purpose of personal appearance as a witness or confrontation:
• CoE European Convention on Mutual Assistance in Criminal Matters of 20 April 1959
a) Requirements for transfer: Article 11 provides that the transfer may be refused if:
- the detained person does not consent to the transfer;
- his or her presence is necessary in criminal proceedings pending in the territory of the requested Party;
- his or her transfer is likely to prolong his or her detention, or;
- other compelling considerations against his or her transfer to the territory of the requesting party.
b) Requirements for transit: article 11 §2: request accompanied by any useful documents. The transit may be refused if the person concerned by the transit is a French national.
2° Transit in the context of extradition:
• UE-Member States: FD 2002/584/JHA on EAWs (art. 25)
Requirements for transit: the requesting State has to provide information on :
(a) the identity and nationality of the person who is the subject of the European arrest warrant;
(b) the existence of a European arrest warrant;
(c) the nature and legal classification of the offence;
(d) the description of the circumstances of the offence, including the;
(d) the description of the circumstances of the offence, including date and place (article 695-48 Code of criminal procedure).
Where the requested person is of French nationality or has been residing lawfully and continuously for at least five years on national territory, authorisation may be made subject to the condition that, after being heard, he or she is returned to French territory to serve any custodial sentence which may be imposed on him or her by the judicial authority of the issuing Member State in respect of the offences which are the subject of the arrest warrant (article 695-47 Code of criminal procedure).
• Non-UE countries: European Convention on Extradition of 13 December 1957 (art. 21)
Requirements for transit: Indication of the authority requesting transit, the identity of the extradited person, including his or her nationality or nationalities, the existence of the document on which the request of extradition is based, the nature and legal classification of the offence with mention of the sentence incurred or pronounced, the date and place of the offence, the degree of participation of the extradited person and confirmation of the extradition agreement.