Executive summary and FRA Opinions
Facilitating implementation, application,
and assessment of the framework
decisions to improve fundamental
rights compliance
The three Framework Decisions are rooted in international instruments adopted by the Council of Europe and
the United Nations. More effective tools were deemed
necessary for the EU’s area of justice. With an increase
in the number of persons detained or subjected to alternatives to detention in EU Member States other than
‘their own’ comes a greater need for the application of
these instruments. If well-implemented and carefully
applied to ensure compliance with fundamental rights,
they have the potential to – for instance – boost social
rehabilitation, encourage greater use of alternatives to
detention, and even improve detention conditions (by
reducing overpopulation). To date, the use of the instruments has been relatively limited. The three Framework Decisions were also implemented rather late by
EU Member States, often several years after the respective implementation deadlines. Since December 2014,
the European Commission can launch infringement proceedings with respect to these instruments.
Obstacles that delay the implementation and limit the
application of the Framework Decision on the European
Supervision Order are particularly problematic – especially because the instrument concerns suspected and
accused persons, not persons who have been found
guilty by a court of law. Pre-trial detention risks being
more frequently used for suspects and accused persons
from other EU Member States, given concerns that they
may leave the country. This may have discriminatory
effects if risk assessments are simply based on nationality. This, in turn, may influence the presumption of
innocence by having persons from other Member States
in detention in situations in which persons from the
Member State in question would benefit from alternatives to detention. Therefore, it is vital to not only collect
data and information on experiences with applying the
instrument, but also on failures to apply it. This would
make it possible to identify and address the reasons
underlying decisions not to apply the instrument, such
as the absence of appropriate alternatives to detention.
FRA Opinion 1
For proper implementation of the Framework
Decision on the European Supervision Order,
the EU and its Member States need to assess the
instrument’s non-application. This would permit
the identification of obstacles to the full use of
the instrument. The application of the instrument
to non-nationals also requires close scrutiny to
identify potential discriminatory use. Applying the
European Supervision Order equitably across EU
Member States would contribute to an EU system
of justice that does not discriminate between
persons from different EU Member States, better
respects the presumption of innocence, and limits
the use of pre-trial detention.
For implementation of the Framework Decisions to work
well, there is a need to collect information and data on
how the three instruments are being used. The information and data, in turn, are essential for assessing the
performance of the instruments – including, importantly,
with respect to fundamental rights. Some Member States
have opted for a strong de-centralised approach by designating many courts or prosecutors’ offices as ‘central
authorities’ (one or more entities in each EU Member
State charged with interaction across borders under the
instruments). These entities are important for the smooth
functioning of the instruments, but also serve as potential sources for pooling experiences and collecting muchneeded data and information in a more uniform manner
across a particular country. The manner in which central
authorities operate and how many there are affect the
potential for gathering experiences and could influence
data collection.
FRA Opinion 2
For the practical implementation of the three
Framework Decisions to work well, information
on how the three instruments are being used
needs to be gathered and data collection needs
to be improved, standardised, and consistently
used for feedback and improvements. All
EU Member States should, via their central
authorities, regularly collect data and information
on the use of the instruments and use the data
and information to map, analyse, and improve
their implementation thereof. Central authorities
in EU Member States should also work together
to improve the consistency of such data and
information collection across the EU.
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