2.3. the transfer of prisoners framework decision and challenges to the prevention of ill-treatment As with the FD EAW, Recital 13 of the FD TOP states that “this Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on the European Union and reflected by the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof.” Article 3(4) FD TOP, clarifies that the obligation to respect fundamental rights is not modified. Almost identical provisions exist in both the FD PAS (Recital 5 and Article 1(4)) and the FD ESO (Recital 16 and Article 5). This wording seems to be a compromise between the divergent views on ensuring automaticity and fundamental rights protection. FD TOP stipulates in Article 3(4) that it shall “not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.“ A fundamental rights reference mirrored in Recital 13 which notes that the Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the TEU and reflected by the CFREU. One of the most significant developments in relation to the transfer of prisoners, arguably a controversial departure from the CoE Convention on the Transfer of Sentenced Prisoners is the issue of consent. An important fundamental rights aspect relates to the effect of a forced transfer on rehabilitation, to a country where prison conditions are such that would expose an individual to inhuman treatment in violation of article 3 ECHR. That the question of how consent is indirectly linked with questions of rehabilitation as well as prison conditions is also more closely discussed in the UNODC Handbook on the International Transfer of Sentenced Prisoners: The requirement of consent is on the basis firstly, that it should not be used as a backdoor for expelling or deporting individuals. Secondly, it draws attention to the varying level of prison conditions from country to country, noting that the social rehabilitation of a prisoner is better served by transferring those who do so voluntarily. This is particularly relevant in relation to FD TOP wherein rehabilitation is the primary, if not sole objective.173 Article 6, the Opinion and Notification of the sentenced person sets out the requirements of consent. Article 6(1) provides for the transfer of prisoners only with the consent of the sentenced person in accordance with the law of the issuing state. Subsection 2 however notes that the consent of the sentenced person shall not be required where the judgment together with the certificate is forwarded: a) to the Member State of nationality in which the sentenced person lives, b) to the Member State to which the sentenced person will be deported once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order […] c) to the Member State to which the sentenced person has fled or otherwise returned in view of the criminal proceedings pending against him or her in the issuing State or following the conviction in that issuing State. Thus, the FD TOP limits the situation whereby an individual can be transferred in contravention to his or her wishes. It provides that a transfer can only take place in limited circumstances namely, on foot of a deportation order, where a person has fled, or where the transfer involves the return of a 173 44 UNODC Handbook available at https://www.unodc.org/documents/organized-crime/Publications/Transfer_of_Sentenced_Persons_Ebook_E.pdf see also the UN Model agreement on the transfer of foreign prisoners and recommendations for the treatment of foreign prisoners - Note by the Secretariat A/CONF.121/10