NATIONAL TRANSPOSITION OF THE FRAMEWORK DECISIONS
the detainee), it can be established that he
did not consent to the sending of the court
decision and the notification to Bulgaria,
stating as reasons the poor conditions in the
prisons in Bulgaria and that he would receive
no visits once there. The Bulgarian court
nonetheless decided that the man should
be placed under compulsory treatment in a
regular psychiatric hospital near his place of
residence in Bulgaria.
4.3.2 CONSENT FOR TREATMENT
Transfers from one state to another constitute an important part in FDs proceedings,
as it could easily lead to fundamental rights
and procedural rights violations of persons
with intellectual and/or psychosocial
disabilities compared to other measures.
However, some of these other measures
also represent a challenge for persons with
intellectual and/or psychosocial disabilities
when it comes to safeguards, namely, the
obligation to undergo medical treatment.
As shown by the comparative tables on
national transposition laws, not all domestic
legislation contains provisions on medical
treatment. Regarding the ESO FD, only
Austria430 and Slovenia431 have included
an article on treatment. Regarding the TP
FD, Austria432 and Germany433 have no
provisions on treatment.
Concerning the ESO FD, some Member
States have changed the content on consent
regarding the supervision measure imposing
therapeutic treatment while transposing the
EU text. Medical treatment is presented in
the FD as an optional supervision measure
as opposed to a mandatory one.434 Austria
stated that national law transposed such an
optional supervision measure into a compulsory measure, provided that the person
concerned consented to said measure, which
strikes a balance.435 In Lithuania, although
the obligation contained in the transposed
legislation to undergo therapeutic treatment
or treatment for addiction is included in
the list of non-custodial penalties, there
is no such obligation in the list of supervision measures.436 Slovenia stated that
national courts could execute supervision
measures by applying mutatis mutandis the
100
provisions of the Criminal Code regarding
measures of custodial supervision or security
measures.437These include an obligation to
undergo therapeutic treatment or treatment
of addiction, which is enforced by custodial
supervision with the ordering of treatment
in an appropriate medical institution, and if
the person consents, also to treatment of
addiction to alcohol or drugs. This means
that the individual is not required to give
their consent in the case of orders involving
medical treatment. Slovenia also mentioned
that, when an order to undergo treatment
is issued, there is not even a list of national
institutions that implement such measures
in the country, although the obligation to
prepare such a list was prescribed over a
decade ago.438
4.3.3 CONSENT FOR
IN ABSENTIA HEARINGS
Another part of the proceedings included
in the framework decisions and which must
be highlighted in respect of the specific
situation of vulnerable persons is hearings.
They can be considered as the continuation
of a consent requirement as hearings exist
to inform the person involved about their
situation and ensure they understand the
proceedings as well as ask if they have
questions. However, it was observed that
most hearings could be held in absentia in
the context of the four FDs. While there
can be instances where in absentia hearings
are possible and adapted, one must see that
such acceptance cannot so easily be applied
in a case involving a person with intellectual
and/or psychosocial disabilities.
Regarding the EAW FD, the relevant provision is Art 14 on hearings and consent
to surrender, which states that “where the
arrested person does not consent to his or her
surrender as referred to in Article 13, he or she
shall be entitled to be heard by the executing
judicial authority, in accordance with the law
of the executing Member State.” The specific
aspect on in absentia hearings focused on
by partner countries was, however, the trial
hearing and not on the hearing dedicated to
ensure consent is given before a surrender.
This provision is Art 5 and states that:
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