Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers prohibition of inhuman and degrading treatment, this complaint should be examined by competent authorities with recognised decision-making powers. The right to engage in work (Article 15 of the Charter) and the right to education (Article 14 of the Charter) are also relevant in the context of transfers – for example, an individual has greater chances to hold a job if an alternative to detention can be executed closer to home. Additionally, in line with Article 8 of the Charter of Fundamental Rights and in particular with Council Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters,84 personal data of persons subjected to transfers must be protected at national and international level. FRA’s findings show that the vast majority of states (25) apply general data protection laws when processing data of persons subjected to transfers, both at national and international level. Only three states apply additional rules regarding data of persons in detention (Estonia, Croatia and the Netherlands). There appears to be a common understanding that all EU Member States have adequate levels of data protection and no special regulations regarding transfer of prisoners are therefore needed. This issue falls outside of the scope of this report, so will not be further explored. In principle, the ECtHR’s jurisprudence shows an appreciation of the benefits of transfers to home countries and of serving sentences in familiar environments. Even where penitentiary conditions worsen after a transfer, the ECtHR is of the opinion that this is counterbalanced by better prospects of reintegration into society, being closer to family and being in an environment with which one has closer linguistic and cultural ties. awaiting trial must consider their fundamental rights.86 In Germany, the public prosecutor’s report on which a decision to transfer is based must include information on the social ties of the person concerned along with information on the marital status, number of children and place of residence of family members. The report must also include the request of the person concerned, or if the request was initiated by the public prosecutor, a statement of the person, which may also elaborate on social reintegration. According to the regulatory provisions of the German state of Brandenburg, the prison authority’s statement shall determine whether a transfer is advisable considering general preventative aspects and specific deterrence of the individual offender.87 However, the implementing law does not explicitly require taking the additional considerations into account. Similarly, Estonian practitioners consider the personal and family situation of the sentenced person, language, and cultural and economic ties with the executing state.88 While the United Kingdom will take into account fundamental rights such as right to family life and implication of prison conditions, access to education would not normally prevent transfer. Initially, conditions in the proposed receiving state would be assessed if this issue was raised by a prisoner. However, as the majority of prisoners now raise conditions as a ground to prevent transfer, conditions are now more routinely assessed. An example of a condition often raised is prison overcrowding. Information is gathered from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) reports and until now these have never led to a transfer being cancelled.89 In Sweden, if there is a documented risk of fundamental rights violations, including inhuman conditions of detention, a judgment might not be forwarded.90 Member States’ approaches EU Member States consider fundamental rights implications in their legislation on transfers of prisoners in various ways. For example, the Ministry of Justice in Denmark will not initiate transfer proceedings if a transfer would be contrary to fundamental rights – for example, the ECHR.85 Likewise in Spain, any decision concerning the transfer of persons convicted or 84 Council of the European Union (2008), Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, OJ 2008 L 350. 85 Denmark, Representative of the Danish Ministry of Justice. 42 86 Spain, Law 23/2014 of 20 November on mutual recognition of criminal judgments in the European Union (Ley 23/2014, de 20 de noviembre, de reconocimiento mutuo de resoluciones penales en la Unión Europea), 21 November 2014, Art. 3. 87 Germany, Law of the state of Brandenburg (Landesrecht Brandenburg) (2008), Regulatory provisions on implementing the Council of Europe Convention of 21 March 1983 on the transfer of sentenced persons and the additional protocol (Erlass des Ministeriums für Justiz vom 03. Juli 2008: Ausführung des Übereinkommens vom 21. März 1983 über die Überstellung verurteilter Personen und des Zusatzprotokolls vom 18. Dezember 1997), 3 July 2008, No. II.3.1 and 3.3.1. 88 Estonia, Ministry of Justice ( Justiitsministeerium) (2013). 89 United Kingdom, Representative of NOMS. 90 Sweden, Ministry of Justice ( Justutiedepartementet), Government bill on judgments imposing custodial or other forms of deprivation of liberty sentences within the European Union (Regeringens proposition 2014/15:29 Erkännande och verkställighet av frihetsberövande påföljder inom Europeiska unionen), 4 December 2014, p. 72.