Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers The three Framework Decisions at the centre of this study are: 1. Framework Decision on transfer of prisoners4 – providing for transfers of prison sentences to be served in other EU Member States; 2. Framework Decision on probation and alternative sanctions 5  – providing for transfers of probation measures and alternative sanctions to be supervised in other EU Member States; and 3. Framework Decision on the European Supervision Order (ESO)6 – providing for transfers of decisions on supervision measures as alternatives to provisional detention to be supervised in other Member States. The Framework Decision on transfer of prisoners provides for transferring sentenced persons to serve their terms in their ‘home countries’ or, in some circumstances, in other EU Member States. The Framework Decision on probation and alternative sanctions allows persons sentenced to non-custodial measures to have the measure imposed on them supervised in their home country. Finally, the Framework Decision on the European Supervision Order covers suspects and accused persons awaiting trial and allows for transfers of non-custodial supervision measures to other EU Member States. The instruments should apply to everyone, regardless of whether they are EU nationals or not. They do not cover transfers to non-EU countries. Correct implementation and application of the instruments facilitates social rehabilitation of prisoners as they can serve their sentences in familiar environments in their home countries, while persons sentenced to non-custodial measures and suspects and accused people can have the measures imposed on them supervised in their home country. Additionally, non-custodial measures can be transferred to other Member States, to enable studying or working in those countries. In this aspect the 4 5 6 18 Council of the European Union (2008), 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, OJ 327, 5 December 2008 (Council Framework Decision 2008/909/JHA). Council of the European Union (2008), Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, OJ L 337, 16 December 2008 (Council Framework Decision 2008/947/JHA). Council of the European Union (2009), 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, OJ L 294, 11 November 2009 (Council Framework Decision 2009/829/JHA). Framework Decisions reflect and conform to the principles of the free movement of people and free movement of workers, and reinforce the EU area of justice. These instruments should be seen in light of the wellestablished Framework Decision on the European Arrest Warrant (EAW)7 of 2002, which at the time of adoption was rather controversial but proved to be functional and operational – although some criticism persists. The three Framework Decisions on transfer constitute a next step in strengthening mutual recognition. Pursuant to the principle of mutual recognition, decisions made by judicial authorities in one EU Member State are recognised – and, where necessary, enforced – by entities in another EU Member State. Endorsed by the 1999 European Council meeting in Tampere, this principle has become the cornerstone of judicial cooperation in both civil and criminal matters within the EU.8 In a nutshell, Member States accept the outcomes of each other’s judicial processes, as long as EU law is applied and fundamental rights are respected. This entails some restrictions on Member States’ autonomy, as EU law is to be applied without taking into consideration the practice within individual Member States. The international law principle of ‘reciprocity’ is thus done away with in the EU context.9 The three instruments differ from the EAW in that they deal with persons already brought before the justice system while the EAW considers people who knowingly or unknowingly absconded and are sought after to have them appear before a criminal tribunal. It is partly for this reason that the three Framework Decisions have to date received less media attention and less criticism. This is also due to the fact that Member States have been rather slow in their implementation (see Figure 1). Therefore, while reading the summary of findings, it should be noted that, at the time of data collection, not all Member States had implemented all three Framework Decisions; and, even if the decisions were implemented in law, relevant practice had not yet been established. However, the Framework Decisions’ potential impact should not be underestimated: reliance on these instruments could increase, and this could boost social rehabilitation, encourage greater use of alternatives to detention, and even improve detention standards – all with great importance for fundamental rights. All of this 7 8 9 Council of the European Union (2002), Council Framework Decision 2002/584/JHA of 13 June 2002, on the European Arrest Warrant and the surrender procedures between Member States, OJ L 190, 18 July 2002 (Council Framework Decision 2002/584/JHA). European Council (1999). CJEU, Joined Cases, C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru, 5 April 2016, paras. 75–80.