Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers
important factor considered by the Irish authorities. As
the Irish Council for Prisoners Overseas notes, family
visits while in prison are essential in ensuring that
people have the best opportunity to reintegrate upon
their release from prison. In this respect, the consideration of close family ties appears to be the main factor for
approving a transfer.96 In Portugal, a sentenced person’s
health needs are likewise taken into account and are
indicated in documents sent to the executing state to
obtain its agreement. If need be, the medical or welfare
report about the person in question is included along
with a recommended follow-up treatment.97
in the Netherlands (Dienst Justitiële Inrichtingen), rehabilitation in a foreign country (i.e. the Netherlands) is
not considered possible.98 Likewise, in Slovenia, it is at
least initially presumed that social rehabilitation will be
better achieved in the state of nationality.99 The United
Kingdom authorities mainly focus on transfer prisoners who are subject to deportation and therefore will
not be allowed to remain in the United Kingdom. It is
believed that it would normally be in the best interest
of the prisoner’s social rehabilitation to serve his or her
sentence in the country in which he or she will be living
after the release.
Findings from project on cross-border
execution of judgments involving
deprivation of liberty
According to FRA’s research, only Bulgarian legislation
does not refer to the requirement of social rehabilitation; however, Bulgaria has not yet implemented the
Framework Decision on transfer of prisoners and applies
the Council of Europe Transfer Convention. In practice,
consideration is given only to the arguments pointed
out by sentenced persons in their requests for transfer.
Most often these refer to the sentenced person’s need
to be closer to their family and the lack of knowledge
of the Bulgarian language.100
“Only 67 % of the [practitioners interviewed] indicated that they thought the terms of the Framework Decision required MS to assess the social
rehabilitation of prisoners on a case by case basis
rather than assuming that serving a sentence
in the prisoner’s home state would automatically facilitate their social rehabilitation. Coupled
with the remarkable results that over 20 % of all
respondents did not consider it to be important to
have information on material detention conditions
in the prison of the executing state, on a prisoner’s home circumstances in the executing state
and on education, work and training facilities in
the executing state’s prison system, it can be concluded that there is reason for concern here.”
Source: Vermeulen, G., van Kalmthout, A., Paterson, N., Knapen,
M., Verbeke, P., and deBondt, W., Institute for International
Research on Criminal Policy (2011), Cross-border Execution of Judgments Involving Deprivation of Liberty, Apeldoorn: MAKLU, p. 55
(emphasis added)
Some Member States (the Netherlands, Slovenia and the
United Kingdom) presume that a person’s social rehabilitation is only possible in their country of origin. According to the National Agency of Correctional Institutions
96 Ireland, Representative of the Irish Council for Prisoners
Overseas.
97 Portugal, Law 144/99 amended by Laws 104/2001
of 25 August, 48/2003 of 22 August and 115/2009 of
12 October, Execution of Foreign Criminal Sentences and the
transferrence of persons sentenced to imprisonment and
security measures involving the deprivation of freedom
(Lei n.º 144/99, alterada pelas Leis n.º 104/2001, de 25
de Agosto, n.º 48/2003, de 22 de Agosto e n.º 115/2009
de 12 de Outubro sobre a execução de sentenças penais
estrangeiras e transferência de pessoas condenadas
a penas e medidas de segurança privativas da liberdade),
31 August 1999, Article 117 (2) d); District Office of the
Public Prosecutor General (Procuradoria-Geral Distrital),
the Lisbon Court of Appeal (2013), International Judiciary
Cooperation in Criminal Matters: Procedural Guidelines
and Notes by the Public Prosecutor’s Office and the Appeal
Court (Tribunal da Relação de Lisboa: Cooperação Judiciária
Internacional em Matéria Penal, Orientações e Notas de
Procedimento do Ministério Público no Tribunal da Relação)’.
44
Promising practice
Obtaining adequate information
before deciding on transfers
Before agreeing to transfers, the Belgian
Ministry of Justice obtains information about the
sentenced person’s personal situation. Prospects
for rehabilitation are examined and family
members are interviewed. This social inquiry
can also be requested by the public prosecutor,
upon the request of the issuing state, or on the
sentenced person’s own motion.
Source: Belgium, Representative from the Ministry of Justice
When assessing prospects for social rehabilitation,
states take into account various criteria, such as detention conditions, humanitarian concerns, and family
and social ties. Figure 3 presents an overview of these
criteria.
Of these criteria, family ties remain the most important
factor. Authorities of at least 22 Member States consider
family and social ties in the decision-making process.
However, fewer than half of the Member States consider
98 Netherlands, Custodial Institutions Agency (Dienst Justitiële
Inrichtingen) (2013).
99 Slovenia, Representative of the District Court of Ljubljana.
100 Bulgaria, Supreme Prosecution Office of Cassation
(Върховна касационна прокуратура) (2015), Letter
No. 5676/2015 to the Center for the Study of Democracy
(Писмо № 5676/2015 до Центъра за изследване на
демокрацията), 28 May 2015.
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