JUSTICE FOR ALL
accommodations for the persons concerned.
The EU jurisprudence made fundamental
rights violations in the context of cross-border
proceedings hard to demonstrate, reinforcing the presumption of fundamental rights
compliance as encompassed in the principles
of mutual trust and mutual recognition. As a
result, while the postponement of a transfer
is envisioned in the EU instruments, the total
refusal by a State to transfer a defendant or
detainee is only acceptable in rare cases of
extreme violations of fundamental rights.
At the national level, Member States possess
some leeway while transposing EU instruments, which led to a certain fragmentation
of rights at the domestic level. Some Member
States have recognized more grounds for
refusal to transfer, including the non-respect
of procedural safeguards. Some have added
general provisions to better protect the person concerned during criminal proceedings.
Some transposition laws, however, have also
altered or removed some protective articles
or added constraining obligations. More specifically, Member States have generally failed
to add provisions protecting persons with
psychosocial and/or intellectual disabilities
at the national level. Many partner countries
reported how consent, both in relation to
the criminal proceedings and to medical
treatment, was sometimes not included in the
legislation or not sought to properly ensure
informed and genuine agreement. Finally, the
report showed a general lack of awareness
and knowledge in respect of both the framework decisions (except for the EAW FD) and
the involvement of persons with psychosocial
and/or intellectual disabilities in cross-border
proceedings.
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