Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers Romania will not apply Article 14 (1) on double criminality.20 However, not recognising the double criminality provisions is not expected to lead to any fundamental rights concerns. The following sections provide brief overviews of the three Framework Decisions. The subsequent sections discuss how experiences are pooled and processes are analysed in Member States, and address promising practices. 1.2. Framework Decision on transfer of prisoners Table 4: Overview of Framework Decision on transfer of prisoners Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union Full title Deadline for 5 December 2011 implementation Full name (emphasis added) “on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union” Applicable to number of EU Member States 28 Source: FRA, 2016 As regards transfers of prisoners between the 28 EU Member States, the Framework Decision on transfer of prisoners is designed to replace the procedure for transferring prisoners under the 1983 Council of Europe Convention on the Transfer of Sentenced Persons and the Convention Implementing the Schengen Agreement 20 Council of the European Union (2015), Implementation of Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention, 5859/15 COPEN 25 EUROJUST 22 EJN 9, 3 February 2015.  28 provisions on matters relating to transfers between EU Member States. Its underlying purpose is the social rehabilitation of sentenced persons (see Table 4).21 The Framework Decision provides for a faster and more streamlined procedure 22 than the Council of Europe instruments. The sentencing state forwards a judgment to the Member State to which it wishes to transfer the sentenced person, accompanied by a standardised certificate23 that includes the reasons for the transfer. Article 6 of the Framework Decision restricts defendants’ possibility to oppose transfers (a veto is provided for in the 1983 Convention). Although sentenced persons are allowed to state their opinion, their consent is not required in the following situations: • the person is a national of the executing state and also lives there; • the person would be deported to the executing state on completion of their sentence; or • the person has fled or otherwise returned there in response to the pending criminal proceedings or his/ her conviction.24 The Framework Decision on transfer of prisoners also contains the following central elements: • Double criminality: Article 7 lists 32 offences that give rise to recognition of the judgment without verification of the double criminality, provided they are punishable in the issuing state. • The ‘specialty rule’: Article 18 provides that sentenced persons who have been transferred must not be prosecuted, sentenced or otherwise deprived of their liberty for an offence committed before their transfer other than that for which they were transferred. • Grounds for refusal of transfer: Article 9 includes a  number of technical grounds as well as, for instance, double jeopardy (ne bis in idem). • The Framework Decision sets a  time limit of 90 days for the potential executing state to decide on a transfer – in contrast to the Council of Europe’s 1983 European Convention on the Transfer of Sentenced Persons, which did not include a procedural time limit, an element that significantly curtailed its effectiveness. 21 22 23 24 Council Framework Decision 2008/909/JHA, Art. 3 (1). Library of the European Parliament (2013), p. 3. Council Framework Decision 2008/909/JHA, Annex I. Ibid., Art. 6 (2).