NATIONAL TRANSPOSITION OF THE FRAMEWORK DECISIONS
4.1 TRANSPOSITION INVOLVING SAFEGUARDS
4.1.1 GROUNDS FOR REFUSAL
4.1.1.1 FUNDAMENTAL RIGHTS VIOLATIONS
Regarding the EAW FD, Austria reported
that the transposition contains additional
provisions on grounds for refusal to surrender based on fundamental rights violation.
The domestic legislation provides a two-fold
limitation: Firstly, the court must have objective indicators for the violation. Secondly,
the concerned person must lack remedies
before the ECtHR or the CJEU.371As the
latter requirement can generally only
be determined in cooperation with the
issuing authority, further information may
be requested by the executing authority.
This is based on the consideration that
fundamental rights violations are best
determined and dealt with in the course
of the proceedings in the issuing state.372
Austria also de facto appoints an expert
to make an assessment of the individual
on their fitness to be transferred before
any transit in general, despite the fact that
such safeguard is not expressly provided
for in the national legislation, allowing for
a possible suspension or postponement of
the transfer.373 Germany evoked a domestic
case concerning the obligation to investigate
potential fundamental rights violations for
a person in a situation of vulnerability even
without an already existing expert statement
describing a possible danger.374 This jurisprudence goes beyond what the Italian court
asked the CJEU in the E.D.L. case,375 which
only dealt with the possible danger found
on the basis of an expert statement. The
German jurisprudence rather focused on the
general obligation to investigate potential
violations in the executing country.
Vis-à-vis the TP FD, and regarding the
particular aspect of the grounds for the
refusal to execute a request for transferring
a prisoner, partner countries have identified
additional bases in national transposition
acts. Similar to the EAW FD,376 the TP FD
already foresees the possibility to refuse a
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transfer in case the decision was decided in
order to punish someone for their “sex, race,
religion, ethnic origin, nationality, language,
political opinion or sexual orientation”.377 To
this discriminatory component, Slovenia
notably added that a sentence which could
be considered to have been rendered in
violation of fundamental rights or freedoms
could also be a ground for refusal.378 Italy
also pointed out in their national report
that fair trial violations, as a category of
fundamental rights, could be the basis for a
refusal to execute the sentence.379 Still on
the TP FD, Slovenia pointed out the possibility for courts to reject the recognition and
execution of the imposed sentence when it
includes psychiatric treatment, healthcare
or another measure involving deprivation
of liberty which cannot be executed in
the country.380 Bulgaria also reported that
a court is not required to recognize and
execute a judicial act when the imposed
punishment includes coercive medical measures (compulsory treatment) or measures
involving deprivation of liberty.381
Concerning the ESO FD, Austria reported
that, as an executing authority, the national
transposition foresees a ground for refusal
relating to a violation of the principles laid
down in Art 6 TEU, or if there are objective
indicators that the ESO was issued for the
purpose of persecuting or punishing this
person based on discriminatory grounds.382
While grounds for refusal related to fundamental rights are optional under the ESO FD,
they are binding under national law.
4.1.1.2 SOCIAL REHABILITATION
The necessity to keep the best interest of
the individual involved in the proceedings
was also reported as a potential ground for
refusal to execute proceedings in the context
of framework decisions.
Regarding the TP FD, Slovenia added a ground
related to the best interest of the defendant,
reporting that a national court could submit to
a competent authority of the issuing state an
opinion of refusal stating the reasons why the
transfer to Slovenia would not facilitate the
integration of the person concerned into the
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