Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers
Table 12 shows that more than half of the Member
States have established some procedures, either in law
or in practice, regarding consent or opinion under the
Framework Decision on transfer of prisoners. In general,
the domestic laws or practices of those states are very
flexible, and allow the interested persons to express
their consent or opinion in writing or orally, which later
is recorded in writing by officials.
According to FRA’s research, in all states with established procedures, sentenced persons are informed by
the competent authorities about the purpose and meaning of consent. They are informed that after a transfer,
the sentence will be served in accordance with the law
of the executing state, including possible eligibility for
parole (this information is explicitly provided in Finland,
for example). Some states – for example, Latvia – use
special forms containing all the relevant information.308
Additionally, in Spain, prisoners subjected to transfer
procedures must be assisted by a lawyer and an interpreter to ensure full understanding.
Sentenced persons can express their consent either
before prison authorities (Austria, Denmark, Estonia,
Finland, the Netherlands and Sweden) or before law
enforcement/judicial authorities (Belgium, the Czech
Republic, Germany, Lithuania, Latvia, Poland, Portugal,
Romania, Slovakia and Spain). In Belgium, consent is
expressed before the public prosecutor. Sentenced persons are informed that consenting to a transfer entails
renouncing one’s entitlement to the rule of specialty
in accordance with Article 18 (2) (e) of the Framework
Decision on transfer of prisoners. Pursuant to this provision, when sentenced persons consent to transfers,
the specialty rule will not apply to them, meaning they
can be prosecuted, sentenced or detained in connection
with offences committed before the transfer and not
covered by the transfer decision. In addition, sentenced
persons are informed that any remaining imprisonment
sentence will be directly and immediately enforceable
in the executing state, in accordance with the laws of
that state. Finally, sentenced persons are informed that
the executing state can adapt the sentence pronounced
in Belgium if its duration or nature is incompatible with
the laws of the executing state. The sentenced person’s
consent is officially given in writing. 309
308 Latvia, Cabinet of Ministers Regulations No. 176
‘Regulations on the form and content of a special document
for co-operation in criminal proceedings with the Member
States of the European Union’ (Ministru kabineta noteikumi
Nr. 176 “Noteikumi par īpaša dokumenta formu un
saturu krimināltiesiskajā sadarbībā ar Eiropas Savienības
dalībvalstīm”), 17 March 2008, Annex 6.
309 Belgium, Act related to the application of the mutual
recognition principle to custodial sentence or measure
deprivative of liberty pronounced in a European Union
Member State, Art. 6, para. 1 and Art. 33, paras. 1–2.
94
Similarly, opinions can be stated either before prison
authorities (Austria, Denmark, Estonia, Finland, the
Netherlands, Sweden and the United Kingdom) or
before prosecutors or judges (Croatia, the Czech
Republic, France, Germany, Greece, Hungary, Lithuania, Poland, Slovakia and Spain).
Only five Member States have established a consent
procedure – either in law or in practice – for transfers
to be carried out in accordance with the Framework
Decision on probation and alternative sanctions. However, it should be remembered that this decision does
not explicitly require any consent. Nevertheless, the
prosecutor of the Netherlands claims that since some
EU countries set informed consent as a precondition for
transfers, written consent of the sentenced person is
always asked for.310
The states that have special procedures – namely Finland, Malta, Ireland, the Netherlands and Spain – allow
for consent to be expressed before probation supervising officers (Finland, Malta and the Netherlands) or
before the judicial authorities (Ireland and Spain).
In Spain, before transmitting a judgment on probation,
the judicial authority asks the convicted person if they
want to return to the state of their residence, allowing
them thirty days to answer. If a convicted person wants
to have the measures transferred, the judicial authority
contacts the competent authority of that state and ask
for its consent to transmission of the judgment. Consent, even if expressed verbally, is always documented
by the judge.311
The ESO has not been used much by Member States.
Therefore, the research showed that, in numerous
states, relevant procedures have not been established
and it has been not determined how consent will be
obtained. This is the case in Austria, Croatia, the Czech
Republic, Denmark, Estonia, Finland, France, Lithuania,
Latvia, the Netherlands, Poland, Portugal and Romania. However, three states have clear guidelines on
how to obtain suspects’ or accused persons’ informed
consent to forwarding supervision measures to their
home country. In Spain, suspects or accused persons
are informed about the option by the court and given
30 days to decide. If the proceedings were held in various courts, the accused’s consent in one case applies
to all others.312 In Hungary, the court must obtain the
consent of the person concerned when it orders the
supervision measure and fills out the model template
310 Netherlands, Representative of the Centre for International
Legal Aid.
311 Spain, Law 23/2014 of 20 November on mutual recognition
of criminal judgments in the European Union, Art. 98.2.
312 Ibid., Art. 114.3 and 4.
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