Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers ECtHR on excessive transfers The ECtHR has concluded that repeated transfers to different prison facilities combined with solitary confinement amount to a violation of the prohibition of torture and inhuman and degrading treatment. The applicant was transferred 43 times within 12  years. He was also deemed a  dangerous inmate and subjected to a  strict regime. He was isolated from other inmates for 7 years. The applicant developed a  severe psychological condition, requested to be subjected to euthanasia, and started a hunger strike. He complained about the strict regime and the repeated transfers and argued that these negatively influenced his mental health. The court found that the government could not justify the transfers with the risk of absconding. Source: ECtHR, Bamouhammad v. Belgium, No. 47687/13, 15 November 2015 The ECtHR has also dealt with cases involving transfers of prisoners from Thailand to the United Kingdom at their request. Already present in the United Kingdom, the applicants complained that the sentences imposed in Thailand were grossly disproportionate to the offences committed and that their continued detentions were arbitrary as the trials in Thailand were flagrantly unfair. The ECtHR dismissed the complaints. It found that the terms of their imprisonment did not attain the requisite level of humiliation or hardship and explained that the deprivation of liberty resulted from the final sentence, which was only executed in the United Kingdom. The ECtHR acknowledged that imprisonment following a flagrantly unfair trial would be contrary to human rights standards, but, in the cases at issue, found that the applicants failed to demonstrate that they were denied the right to a fair trial in Thailand. The ECtHR took into account that the transfers occurred within the framework of international cooperation in the administration of justice, which in principle is in the interests of the persons concerned. It emphasised that “prisoner-transfer agreements are generally intended to serve the laudable aims of eliminating the adverse effects of serving a sentence in an environment which is socially, culturally or linguistically unfamiliar and facilitating future reintegration into society.”71 In exceptional cases, a transfer might be impossible for humanitarian reasons  – for example, when the sentenced person is terminally ill, not medically fit for transfer and likely to be deprived of any medical and social care in the executing state.72 However, these cases should be treated as very exceptional, given that, where applicants are not that seriously ill, the ECtHR 71 ECtHR, Willcox and Hurford v. the United Kingdom, Nos. 43759/10 and 43771/12, 8 January 2013. 72 ECtHR, D. v. the United Kingdom, No. 30240/96, 2 May 1997. 40 tends to find that a transfer (expulsion in case cited) is permitted.73 Respect for private and family life Cases finding that transferring people across borders violates their right to private or family life (Article 8 of the ECHR) are also relevant. Article 8 allows interferences with someone’s family or private life when these are in accordance with law, proportionate and necessary in a democratic society. The ECtHR has outlined relevant criteria for assessing whether a transfer (expulsion) measure was necessary in a democratic society and proportionate to the aim pursued: • the nature and seriousness of the offence committed by the applicant; • the length of the applicant’s stay in the country from which he or she is to be expelled; • the time elapsed since the offence was committed and the applicant’s conduct during that period; • the nationalities of the various persons concerned; • the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; • whether the spouse knew about the offence at the time when he or she entered into a  family relationship; • whether there are children of the marriage, and if so, their age; • the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled. • the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and • the solidity of social, cultural and family ties with the host country and with the country of destination.74 If the measure proves to be unnecessary or disproportionate, the expulsion will violate Article 8. In the context of prisoner transfers, a transfer to the state of nationality might violate the right to family life when a sentenced person has close family ties in the issuing state and family members visit the person in prison, whereas it would be very difficult for them to maintain those visits in case of transfer. If a sentenced person has children, their best interest has to be taken into account. For less serious offences and good conduct during detention, transfer might be found less necessary. On the other hand, refusing a transfer might constitute 73 ECtHR, N. v. the United Kingdom, No. 26565/05, 27 May 20008; Tatar v. Switzerland, No. 65692/12, 14 April 2015. 74 ECtHR, Üner v. the Netherlands, No. 46410/99, 18 October 2006, paras. 57–58.