Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers Although the Framework Decision recognises, in Recital 13, that individualized decisions on transferring supervision are of fundamental importance, the role of sentenced persons is limited. The instrument simply refers to the sentenced person’s “wish to return” and assumes such wish exists when a sentenced person has returned to their state of residence.30 This implies that the sentenced person’s consent is not required. However, sentenced persons can request transfers to a state other than a state of residence. Such transfers depend on the request of the sentenced person and the consent of that state. 1.4. Framework Decision on the European Supervision Order Table 6: Overview of Framework Decision on the ESO 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 Full title Deadline for 1 December 2012 implementation Full name (emphasis added) “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” Applicable to number of EU Member States 28 Source: FRA, 2016 The Framework Decision on the European Supervision Order (ESO) enables Member States to transfer to another Member State the supervision of pre-trial measures alternative to detention. This allows suspects or accused persons to await trial in the Member State in which they reside or work/study and have the measures that were imposed on them supervised there. 30 Ibid., Art. 5 (1). 30 One of the Framework Decision’s objectives is the “promotion, where appropriate, of the use of non-custodial measures as an alternative to provisional detention” (Recital 4). Mutual recognition of pre-trial orders is also important because of the risk of different treatment between residents and non-residents, with the decision pointing out that non-residents run a higher risk of being remanded in custody pending trial than nationals in similar circumstances (Recital 5). The basic principle is that one Member State recognises a decision on supervision measures issued in another Member State, monitors it and surrenders a suspect in case of a breach of these measures (Article 1). The decision contains a list of supervision measures to which it applies (Article 8 (1)): 1. Obligations to inform authorities about any change of residence; 2. Obligations not to enter certain places; 3. Obligations to remain at a specific place; 4. Obligations containing limitations on leaving the state territory; 5. Obligations to report to authorities; 6. Obligations to avoid contact with specific persons. Member States can also monitor additional measures and are supposed to notify the General Secretariat of the Council if they are prepared to do so (Article 8(2)). The operational mechanism of the Framework Decision is as follows: following mutual consultations, the issuing state forwards a decision on supervision to the executing state, in which the measure will be monitored. The executing state might be the suspect’s state of habitual residency, provided that the suspect has consented; or any other Member State, provided that the suspect has requested that state and the state has consented. The judgment must be accompanied by a certificate that follows the standard format set out in the Annex to the Framework Decision (Article 10). The monitoring in the executing state begins after the competent authority recognises the decision and informs the competent authority of the issuing state. The time limit for recognition is set as 20 working days after receipt of the decision with certificate and can be extended by another 20 days in case of introduction of a legal remedy (Article 12). The competent authority in the executing state may adapt the supervision measures under domestic law to be in line with measures normally applicable to similar offences. However, the adapted measure should not be more severe than the original one (Article 13). The Framework Decision lists 32 offences that give rise to recognition of the decision on supervision measures