NATIONAL TRANSPOSITION OF THE FRAMEWORK DECISIONS
Regarding the TP FD, Austria stressed the
issue of the lengthiness of the proceedings,
stating that if a transfer is postponed or
refused, it is primarily due to lack of timely
response by the issuing authority. Many
experts have pointed out that cross-border
proceedings are lengthy and bureaucratic.
The authorities prefer to have the execution
of a custodial measure in Austria rather than
having to physically move an individual
across borders. This consideration sometimes seems to take priority over the needs
of the most vulnerable detainees.413
In respect of the PAS FD, partner countries
like Austria414 and Slovenia415 have reported
that no additional safeguards were included
in national laws concerning persons with
intellectual and/or psychosocial disabilities.
During the consultation workshop, an Italian
expert added that safeguards were all the
more necessary in the context of probation,
as it could require that the individual moves
to another country and has their sentence
translated. It was observed that such
adaptation was much more difficult than
a TP proceedings for instance, where the
individual only has to be sent to another
state. The participant evoked examples from
Italy where interpretation and translation
during the proceedings were of poor quality
and also added there was a need for cultural adaptation on the part of officials and
interpreters.
On both the ESO and the PAS FDs, as
indicated by the comparative tables on
national transposition laws, none of the six
partner countries have added provisions on
criminal responsibility related to disability
(with Lithuania having a more open provision
referring to the norms of international law
or the laws of the Republic of Lithuania, see
Section 4). Although lack of criminal liability
is included as a ground for the refusal to
execute all four FDs in the case where the
individual was a minor, no transposition laws
mentioned mental disability explicitly. On the
PAS FD, only Bulgaria, Italy and Lithuania
have a provision on criminal responsibility,
but only in relation to the age limit and not
on disability.
98
4.3 SAFEGUARDS
IN RELATION TO
PERSONS WITH
INTELLECTUAL AND/OR
PSYCHOSOCIAL
DISABILITIES IN
TRANSPOSITION LAWS
4.3.1 CONSENT IN THE
CONTEXT OF TRANSFERS
4.3.1.1 INCLUSION OF CONSENT
IN THE LEGISLATION
Consent is a component which can be found
in all four FDs, emanating from the individual
concerned, the executing State or the issuing
State, a component which can play a role
before the trial or after. The consent to transfer
from a State to another by the individual is
the one on which this study primarily focuses,
as it raises several issues concerning fundamental rights applications. Consent related to
individuals’ transfer can be found in the EAW
FD,416 ESO FD,417 TP FD.418 However, such
consent-related provisions are not identical
and do not uniformly grant the individual
the possibility to refuse a transfer with full
knowledge and understanding of the situation.
Regarding the EAW FD, it is clear that consent
is amongst the safeguards that need specific
attention regarding persons with intellectual
and/or psychosocial disabilities. Among the
four FDs, it is the only one that allows for the
individual to fully refuse a transfer. Article 11
states that “when a requested person is arrested,
the executing competent judicial authority shall,
in accordance with its national law, inform that
person of the European arrest warrant and of its
contents, and also of the possibility of consenting
to surrender to the issuing judicial authority” and
Art 13 states that “each Member State shall
adopt the measures necessary to ensure that
consent and, where appropriate, renunciation,
as referred to in paragraph 1, are established
in such a way as to show that the person
concerned has expressed them voluntarily and
in full awareness of the consequences. To that
end, the requested person shall have the right
to legal counsel.”
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