Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers
Right to be informed of release
According to Article 6 (5)–(6) of the Victims’ Rights
Directive, victims have a right to request to be informed
when an offender will be released from, or has escaped,
detention. Authorities should provide such information
at least when victims are in danger, unless this would
put the offender at risk. This is especially important in
the context of violent crimes, where a sentenced person’s release may involve a threat of retaliation to victims and their families. Member States should consider
informing victims if suspects or sentenced persons are
released back into the community under the Framework Decision on the ESO or the Framework Decision
on probation and alternative sanctions. FRA’s evidence
shows that in at least two-thirds of Member States, victims have the right to be informed about the impending
release of an offender – especially in, and sometimes
limited to, cases where authorities believe that the
victim is at risk as a result of the release.
Member States that have, either as issuing state or executing state, established in law the right of victims to be
informed of suspects’, accused or sentenced persons’
release include Belgium, Croatia, the Czech Republic,
France, Lithuania, Malta, Poland, and Portugal. Figure 18
provides an overview by issuing state and executing
state. Other states offer this information to victims in
practice only (Cyprus, Germany, Denmark, Spain, Finland, Hungary, Ireland, Latvia, the Netherlands, and Slovakia). In the remaining states, either no practice has
been established or insufficient data was provided in
the course of the research.
In the Netherlands, while there is no procedure for providing such information in cases of transfers of sentences, according to general procedure, the prosecutor
has to inform the victim about the release of the sentenced person in cases involving serious crimes.332 In
Latvia, recognised victims have a right to request and
receive information about the perpetrator’s release or
escape from prison or temporary detention if there is
a danger to the victim and there is no risk of harm to
the detained or sentenced person.333 Similar rules apply
in Slovakia334 and in Cyprus, where victims have the
right to be informed of the sentenced person’s release
only in cases of sexual abuse or sexual exploitation of
332 Netherlands, Code of Criminal Procedure (Wetboek van
Strafvordering), 11 March 1979, Art. 51 a.
333 Latvia, Draft Law on Amendments to the Criminal Procedure
Law (Likumprojekts ‘Grozījumi Kriminālprocesa likumā’),
11 June 2015.
334 Slovakia, Criminal Procedure Code (Zákon č. 301/2005 Z. z.
Trestný poriadok) Section 46, paras. 8 and 9.
102
children and in cases of human trafficking, and provided
the police believe the victim to be at risk.335
In practice, victims are often not informed unless they
have expressed this wish beforehand. For example, in
Austria, the victim must be informed about the initial
release, as well as the forthcoming or concluded release
of the convict. However, the victim must have requested
to be informed about this issue during the course of the
trial.336 Victims in Lithuania also have a general right
to be informed of the convict’s release from a correctional institution337 or a suspect’s release from detention if they express their wish to be informed.338 Other
Member States have a clearer procedure in place with
regard to informing victims; for example, in Croatia, the
Probation Office must produce a report on preparing
a victim and his or her family for the temporary release
of a prisoner,339 while victims must also be informed
about terminations of pre-trial detention.340 The victim’s right to information about release becomes more
complex where a prisoner has been transferred; for
example, in Germany, once a prisoner has been transferred, the victim would have to request the information
from the authorities in the executing state, and foreign
law applies.341 Other Member States are careful to balance a victim’s right to information with the rights of
the offender. In Denmark, notifications of release can
be denied if, in the interest of the perpetrator, there
are strong reasons not to grant them.342 This could, for
335 Cyprus, Law on the prevention and combating of
sexual abuse and sexual exploitation of children and
child pornography (O περί της Πρόληψης και της
Καταπολέμησης της Σεξουαλικής Κακοποίησης, της
Σεξουαλικής Εκμετάλλευσης Παιδιών και της Παιδικής
Πορνογραφίας Νόμος του 2014) No. 91(Ι)/2014, 4 July 2014,
Art. 36 (2); Law revising the legal framework regulating
the prevention, combating of trafficking and exploitation
of persons and protection of victims (Nόμος που
αναθεωρεί το νομικό πλαίσιο που διέπει την πρόληψη
και την καταπολέμηση της εμπορίας προσώπων και την
προστασία των θυμάτων) No. 60(I)/2014, 15 April 2014,
Art. 32 (2).
336 Austria, Penitentiary System Act (Bundesgesetz vom 26.
März 1969 über den Vollzug der Freiheitsstrafen und der
mit Freiheitsentziehung verbundenen vorbeugenden
Maßnahmen (Strafvollzugsgesetz – StVG)), BGBl.
No. 144/1969, 26 March 1969, para. 149 (5).
337 Lithuania, Code of Enforcement of Punishments of the
Republic of Lithuania (Lietuvos Republikos bausmių
vykdymo kodeksas), Art. 180 (8).
338 Lithuania, Code of Criminal Procedure (Baudžiamojo proceso
kodeksas), 14 March 2002, Art. 128 (1) and 128 (4).
339 Croatia, The Ordinance on the Administration of Probation
(Pravilnik o načinu obavljanja probacijskih poslova),
Art. 7 (1).
340 Croatia, The Criminal Procedure Act, Official Gazette,
Nos. 152/08, 76/09, 80/11, 121/11, 91/12, 143/12,
56/13,145/13, and 152/14, Art. 125 (9).
341 Germany, Representative of the Ministry for Justice of
North Rhine Westphalia ( Justizministerium des Landes
Nordrhein-Westfalen).
342 Denmark, Consolidated Act No. 1308 of 9 December 2014
on Administration of justice, as amended (Bekendtgørelse
nr. 1308 af. 9. December 2014 af lov om rettens pleje med
senere ændringer), 9 December 2014, Section 741 g.
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