6 Procedural aspects: Information and Consent ▪ This chapter looks at the procedural rights of individuals subject to transfer proceedings, focusing on the availability of information regarding the possibility of transfer and on consent. ▪ It explores the principle of informed consent in the context of the three Framework Decisions. ▪ This chapter also examines whether suspects or sentenced persons are provided sufficient information to understand transfer procedures and their consequences. This chapter looks at the informed consent of persons subjected to transfers in accordance with the three Framework Decisions – on transfer of prisoners, probation and alternative sanctions, and the ESO. It explores whether suspects or sentenced persons are provided with information and support to make them aware of, and help them fully understand, the procedures and their consequences, and to express their consent or opinions thereon. As noted, the three Framework Decisions do not grant rights to be transferred or not to be transferred, nor do they grant a right to request alternatives to detention. However, specific procedural principles are relevant. The most relevant principles are those of the rights to participation and to equal treatment. Informing foreign nationals of the possibility to transfer to another country The European Prison Rules, which outline recommendations by the Committee of Ministers of the Council of Europe, provide that “[p]risoners who are foreign nationals shall be informed of the possibility of requesting that the execution of their sentence be transferred to another country”. Source: Council of Europe, Committee of Ministers, Recommendation Rec(2006)2 with commentary, 11 January 2006, Rule 37.5. The notion of informed consent in the context of transfers of sentenced persons was first introduced by the Convention on the Transfer of Sentenced Persons (Transfer Convention).265 It implies that the sentenced person is fully aware of all legal and practical consequences and that they consent to the transfer voluntarily.266 The Additional Protocol to the Transfer Convention267 – which has been signed by 27 EU Member States, Slovakia being the exception – provides for two instances in which consent is not required. According to Article 2 (1), consent is not required when sentenced persons, nationals of a state party to the convention, flee to their home country before having served their sentence. The second option applies in cases of foreseen expulsion or deportation. If sentenced persons will be subject to expulsion or deportation after having served their prison sentence, their consent to the transfer of judgment is not required (Article 3 (1)). However, in such cases, the sentenced persons have a right to express their opinion, which should be taken into consideration (Article 3 (2)). 265 Council of Europe, Convention on the transfer of sentenced persons. 266 Ibid., Art. 7. 267 Council of Europe, Additional protocol to the convention on the transfer of sentenced persons. 83