person to the country of nationality and where the individual lives.174 In Sweden transfers are made on foot of 4 requirements. First, the judgment must be final, second, the individual must consent to the transfer175, third, the transfer must serve the purpose of facilitating social rehabilitation, or fourth, it is otherwise appropriate. Under the third requirement the issuing authority takes into consideration the individuals attachment to the executing state, evaluating family, linguistic, cultural social or economic ties to the state of transfer. It is usually considered that the social rehabilitation is best places where the sentenced person would reside after release. Under the fourth heading, Sweden’s commitments to the ECHR are taken into account. At this point prison conditions of the executing authority are assessed. Prison conditions are one of the most common grounds for an objection or appeal against a transfer.176 However, in a report of an expert working group from Europris several Member States reported that a high proportion of transfers sought to have been made were made despite the individual concerned did not provide his or her consent.177 Non-refoulement As with the EAW, poor conditions of detention in the executing member state and thus non-refoulement are equally a potential challenge to Art. 4 CFREU/Art. 3 ECHR.178 Although there is no explicit fundamental rights refusal ground in the FD TOP, the Commission in its Green Paper on Detention opined that due to the fact that consent is not required for a transfer, “even greater attention must be paid to the possible infringement of fundamental rights post-transfer. Greater access to information on prison conditions and criminal justice systems in other States will enable issuing States to take all relevant factors into account before initiating transfer.“179 The Green Paper also acknowledges that the FD TOP may cause considerable challenges, e.g. overcrowding, in those Member States, to which prisoners are transferred.180 Other current challenges to fundamental rights identified in terms of implementation included involuntary transfer, lack of informed consent, prison conditions of the executing state, calculation and adaptation of sentence. While non-refoulement is equally an issue regarding the FD TOP, there is not yet the same volume of case law emanating from the CJEU or ECtHR,181 as with the EAW. There is one CJEU preliminary 174 Albeit arguably beyond the scope of this Study, it is worth mentioning how this instrument might affect that it would have upon other aspects of EU law, in particular how the FD would be applied in such a way so as to limit free movement, and the law governing EU citizenship. 175 Unless the executing state is the State of nationality of the sentenced person in which he or she lives or the executing State is the State of nationality of the sentenced person, 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 included in the judgment. 176 Email Survey conducted with a representative of the Kriminalvårdens Huvudkontor, Rättsenheten, Sektionenför internationella och andra särskilda klientärenden, Sweden. 26 January 2017. 177 EuroPris Framework Decision 909 Expert Group, 9 May 2016 Brussels, Belgium available at http://www.europris.org/ resources_package/europris-framework-decision-909-expert-group/. 178 Other fundamental rights challenges, that however go beyond the scope of this Study relate to due process, and access to an effective remedy, and potentially family rights. Furthermore, there is a potential of the instrument to be used as a swift way to remove or deport an individual. It potentially could raise the issues of how the FD TOP sits with the 2004/38 EC Citizenship Directive, wherein it provides firstly, that criminal convictions shall not in themselves constitute grounds for restricting the right to reside in an EU Member State. See European Communities (Free Movement of Persons) Regulations 2006 and 2008 (insofar as they transpose Council Directive 2004/38/EC) and Council Directive 2004/38/EC. Article 27(2). Furthermore, FD TOP is of course open to abuse on both sides, and there is the risk of ‘forum shopping’ by prisoners to find prisons with better conditions, or earlier release dates. 179 European Commission, COM (2011) 327 final, p.6. 180 Ibidem page 6. 181 The cases before the ECtHR ie Szabo v. Sweden No. 28578/03, 27 June 2006 relates to the Convention on the Transfer of Sentenced Persons and the Additional Protocol, but addresses similar concerns. This case was also referred to in the current pending case of Atanas Ognyanov before the CJEU. 45