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.
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