JUSTICE FOR ALL
social environment.383 The need to focus on
rehabilitation and not only on the sentence
was also highlighted during the consultation
workshop by German representatives.
The TP, ESO and PAS FDs have, as a goal,
to ensure the concerned individual can ultimately be rehabilitated and reintegrated into
the community. However, the comparative
tables presented above show that for the
TP FD, only Italy,384 Bulgaria, Slovenia and
Lithuania included a provision on social reintegration in their national law. For the ESO
FD, only Austria included such a provision.
Finally, on the PAS FD, which is dedicated
to alternatives to detention and probation
and thus should take social reintegration as
a core principle, only Slovenia included in
their transposition laws any provisions on
rehabilitation.
4.1.2 ADDITIONAL
SAFEGUARDS
4.1.2.1 LEGAL ASSISTANCE
Among the different additional safeguards,
research has revealed that some states
strengthened the right to legal assistance
in the context of cross-border proceedings.
In respect of the EAW FD, Slovenia reported the obligation for the defendant to
have a defence counsel appointed during
the entire surrender proceedings, or from
the first hearing on the surrender until the
execution of the surrender.385 The protection
even extends to a right to choose a lawyer
from the issuing Member State. The investigating judge then provides the requested
person with information received from the
competent authority of the issuing state to
facilitate the choice of a lawyer, including
information on eligibility for free legal aid.386
In Austria, the right to have access to legal
aid is guaranteed and defendants who are
in a vulnerable position have the right to
free representation in (all) interrogations.387
In case of language difficulties, interpreters
are available.388 Italy, for its part, ensures that
third persons, including family members or
consular authorities, can be notified of the
EAW as part of the legal aid.389
4.1.2.2 REFUSAL OF THE TRANSFER
Finally, a particular additional safeguard observed was the case of refusing the execution
of a FD that would lead to a fundamental
rights violation in itself.
Concerning the TP FD, Slovenia mentioned
a complaint received by the national Ombudsperson about a Slovenian national who was
prosecuted in Poland.390 It had been established that the sentenced individual had an
intellectual and/or psychosocial disability and
the question of the person’s mental capacity
was also considered. Their parents received information about the execution of the security
measure of compulsory psychiatric treatment,
notably involving the use of electric shocks.
The Ombudsperson, informed by the parents
of the individual, contacted the Ministry of
Foreign Affairs and also the Polish Ombudsman. The person was transferred to Slovenia
and the security measure was implemented
at the Forensic Psychiatry Unit. The person
avoided violent medical interventions but was
still detained in a psychiatric unit.
4.2. CHALLENGES
WITH REGARD TO
TRANSPOSITION
4.2.1 RESTRICTIVE TRANSPOSITION
OF FRAMEWORK DECISIONS
4.2.1.1 ABSENCE AND ALTERATION
OF SOME PROTECTIVE PROVISIONS
Among the shortcomings observed in
national transpositions of the four FDs, the
first shortcoming is created by the restrictive
transpositions of EU law into domestic legislation, notably in the case where provisions
have been altered or removed altogether.
The research also revealed shortcomings
which affect, in particular, persons with
intellectual and/or psychosocial disabilities
who are the subjects of cross-border proceedings.
Concerning the ESO FD, national reports
highlighted a tendency to leave aside the
FDs’ provisions that might concern persons with intellectual and/or psychosocial
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