Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers
instance, be the risk of revenge by the victim in gangrelated offences. The respect for the private life of the
perpetrator can also exceed the victim’s need for safety
if there is a concrete risk of harassment of the perpetrator by a third party.343
It should be remembered that, like many aspects of the
Framework Decisions, whether the right to information about releases includes information about transfers is not entirely clear, owing to the relative newness
of the instruments, their very recent implementation,
and a lack of established practice. As pointed out by
the Ministry for Justice of North Rhine Westphalia, not
many requests to provide information about transfers
are made in practice.344
Right to receive information on
decisions to transfer
The Victims’ Rights Directive does not explicitly provide for the right to information on transfer decisions.
Instead, it provides – in Chapter 2 – for a general right
to be informed about criminal proceedings, and specifies – in Article 8 (1) – that Member States shall ensure
support to victims of crime before, during and for an
appropriate time after criminal proceedings.
In about one third of Member States, victims have
a right to receive information on decisions to transfer prisoners/suspects. These Member States have
established a positive duty to inform victims on decisions to transfer perpetrators of crime against them
either through law (Belgium, the Czech Republic and
the United Kingdom) or practice (Germany, Malta, the
Netherlands, Poland, Spain and Sweden).
In some Member States this right is not explicitly established in law – for example, in the Netherlands, the
legislation does not refer to victims in the context of
transfer or is only partially applicable – i.e. under certain conditions/circumstances only, or only for victims
of certain types of crime.
Again, in many Member States, receiving this information appears to be dependent on the victim making
343 Denmark, Preparatory works to Bill L 134, amending the
Administration of Justice Act and Act on state compensation
to victims of crimes (Notification of leave and release etc.
and extended time limits for police reporting for state
compensation to victims of crimes) (Forslag til lov nr.
L 134, folketingsåret 2010-11 (1. samling) om ændring af
retsplejeloven og lov om erstatning fra staten til ofre for
forbrydelser. (Underretning ved udgang og løsladelse m.v.
og udvidelse af fristen for politianmeldelse ved erstatning
fra staten til ofre for forbrydelser)), parliamentary year
2010–2011 (1st session).
344 Germany, Representative of the Ministry for Justice of North
Rhine Westphalia.
104
a request (for example, in Belgium,345 Germany,346
and the Netherlands).347 Addressing this victims’ right
appears to be standard practice only in the United Kingdom; although victims do not have a statutory right
to be involved in the transfer process, where victims
or their families are in contact with a ‘Victim Liaison
Scheme’, they will be informed through their ‘Victim
Liaison Officer’ that a prisoner is being considered
for transfer.348 In other Member States – for example,
Malta – it is unclear whether a transfer would be considered a form of ‘release’ and the duty of notification
would therefore apply – the relevant law was enacted
only in April 2015.
Right to receive information on the
status of transfers
Victims have a right to receive information on the status
of transfers of prisoners/suspects in only six states (Belgium, Germany, Malta, the Netherlands, Spain, and the
United Kingdom). As with the right to receive information on transfers of suspected, accused, or sentenced
persons, in four of the six Member States, this right is
not fully established in law or only applies to certain
categories of victims. There are virtually no explicit procedures in place in any Member State to provide this
information, although, as mentioned, authorities can
often provide such information at the victim’s request
in about a third of Member States – again, with certain
conditions. For example, in Cyprus, the duty to inform
the victim applies both as issuing and as executing
state, provided the authorities are in possession of
information which, according to the laws on trafficking and sexual abuse, must be disclosed to victims.349
In such cases, the party responsible for providing the
information varies in Member States. They include
judges, such as in Belgium, Poland, and Slovenia. They
can also include prosecution services or the police, such
as in Cyprus, the Netherlands and Slovakia; prisons or
probation or other detention facilities – such as in the
Czech Republic, Ireland and Sweden; or others, such
as the official with the relevant information in Finland
and the National Offender Management Service’s Victims Liaison Unit in the United Kingdom. In most cases,
the required format of the information is not specified
and can be either oral or written. The United Kingdom
appears to have the clearest procedure in place: information on victims residing in the executing state may
345 Belgium, Representative of the Ministry of Justice.
346 Germany, Criminal Procedure Code (Strafprozessordnung),
7 April 1987, Art. 406 d.
347 Netherlands, Code of Criminal Procedure, Art. 51 b.
348 United Kingdom, Representative of the NOMS.
349 Cyprus, Law on the prevention and combating of sexual
abuse and sexual exploitation of children and child
pornography, Art. 36 (2); Law revising the legal framework
regulating the prevention, combating of trafficking and
exploitation of persons and protection of victims, Art. 32 (2).
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