Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers
innocence in the European Union […]. As a consequence,
the present Framework Decision has as its objective the
promotion, where appropriate, of the use of non-custodial measures as an alternative to provisional detention.”
It is thus clear that, in general, the instruments seek to
promote social rehabilitation – the ESO by not depriving
anyone of their liberty in the first place, avoiding the
need for rehabilitation – and apart from the Framework
Decision on transfer of prisoners, also promote alternatives to detention, in addition to the protection of
crime victims and the general public. Social rehabilitation is of great importance for individuals to adjust to
life back in liberty. But it is also of great importance to
society in that it seeks to reintegrate sentenced persons
into society. Social rehabilitation is therefore important for the criminal justice system and its capacity to
Table 8:
Promoting alternatives to detention has a clear fundamental rights-basis – not only the provisions explicitly
calling for minimising the use of detention, especially
pre-trial, but also the prohibition of torture and degrading
treatment. For the pre-trial instrument, the presumption
of innocence is also highly relevant. The link between
social rehabilitation and fundamental rights may be less
apparent, but the respect for family life and the rights of
the child (for children to see their parents) play a role.
The three Framework Decisions do not explicitly grant
any specific fundamental rights. They do refer to fundamental rights generally in the operative provisions,
References to fundamental rights in the three Framework Decisions
Transfer of prisoners
Probation and alternative
sanctions
Article on
fundamental rights
(identical)
3 (4) “This Framework
Decision shall not have the
effect of modifying the
obligation to respect
fundamental rights and
fundamental legal principles
as enshrined in Article 6
[TEU].”
1 (4) “This Framework
Decision shall not have the
effect of modifying the
obligation to respect
fundamental rights and
fundamental legal principles
as enshrined in Article 6
[TEU].”
5 “This Framework Decision
shall not have the effect of
modifying the obligation to
respect fundamental rights
and fundamental legal
principles as enshrined in
Article 6 [TEU].”
Recital on
fundamental rights
(differences in
bold)
(13) “This Framework
Decision respects
fundamental rights
and observes the principles
recognised by Article 6 [TEU]
and reflected by the
[Charter], in particular
Chapter VI thereof. Nothing
in this Framework Decision
should be interpreted as
prohibiting refusal to
execute a decision when
there are objective reasons
to believe that the sentence
was imposed for the
purpose of punishing
a person on the grounds of
his or her sex, race, religion,
ethnic origin, nationality,
language, political opinions
or sexual orientation, or that
that person’s position may
be prejudiced on any one of
those grounds.”
(5) “This Framework
Decision respects
fundamental rights and
adheres to the principles
recognised in Article [TEU],
which are also expressed in
the [Charter], especially in
Chapter VI thereof. No
provision of this Framework
Decision should be
interpreted as prohibiting
refusal to recognise
a judgment and/or supervise
a probation measure or
alternative sanction if there
are objective reasons to
believe that the probation
measure or alternative
sanction was imposed to
punish a person because of
his or her sex, race, religion,
ethnic origin, nationality,
language, political opinions
or sexual orientation or that
this person might be
disadvantaged for one of
these reasons.”
(16) “This Framework
Decision respects
fundamental rights and
observes the principles
recognised, in particular, by
Article 6 [TEU] and reflected
by the [Charter]. Nothing in
this Framework Decision
should be interpreted as
prohibiting refusal to
recognise a decision on
supervision measures if
there are objective
indications that it was
imposed to punish a person
because of his or her sex,
race, religion, ethnic origin,
nationality, language,
political convictions or
sexual orientation or that this
person might be
disadvantaged for one of
these reasons.”
Source: FRA, 2016
36
reduce recidivism, but also because it helps society
avoid the financial costs associated with prosecuting
repeat offenders.
European Supervision Order
(ESO)
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents