Overall goals and fundamental rights
and note that refusing to recognise sanctions imposed
to punish someone based on their sex, race, or other
protected ground is permissible. Table 8 provides a comparative overview of the three decisions in this regard.
However, a number of human rights – as expressed in the
European Convention on Human Rights (ECHR) – and fundamental rights – as expressed in the Charter of Fundamental Rights of the European Union (Charter) – are most
relevant for persons subjected to transfers. They include:
• the right to dignity (ECHR: general reference to the
Universal Declaration of Human Rights, which refers
to dignity in the preamble; Charter: Article 1)
• freedom from inhuman or degrading treatment
(ECHR: Article 3; Charter: Article 4)
• the right to liberty (ECHR: Article 5; Charter: Article 6)
• the right to a fair trial (ECHR: Article 6; Charter:
Article 47)
• the right to respect for private and family life
(ECHR: Article 8; Charter: Article 7).
The last of these rights – respect for private and family
life – relates to the three Framework Decisions’ overarching goal of social rehabilitation. This chapter provides an overview of these rights as they are relevant
to the Framework Decisions; the subsequent chapters
focus in more detail on particular aspects of the decisions and the related fundamental rights.
Persons subjected to measures foreseen in all three
Framework Decisions benefit from the guarantees of
the ECHR and the EU Charter of Fundamental Rights.
Nevertheless, this section focuses mainly on the Framework Decision on transfer of prisoners because it provides for cross-border transfers of individuals who
are deprived of their liberty and are non-nationals
of the sentencing EU Member State – circumstances
that require a very careful consideration of fundamental rights as well as of prospects of rehabilitation. The
individuals involved can be characterised as vulnerable
by virtue of being both non-nationals and prisoners.
It is important to note that the transfer proceedings do not
intend to – and should not – replace expulsion proceedings
(removal). The transfer proceedings are easier, faster and
less formalised and authorities might be tempted to use
them instead of proper removal proceedings. It should
be remembered that, according to the Free Movement
Directive,55 Member States are only exceptionally allowed
to institute removal proceedings of Union citizens – on
grounds of public policy, public security or public health.
Measures taken must be based on personal conduct,
55
Directive 2004/38/EC of the European Parliament and of the
Council of 29 April 2004 on the right of citizens of the Union
and their family members to move and reside freely within
the territory of the Member States, OJ L 158.
which must represent a genuine, present and sufficiently
serious threat affecting one of the fundamental interests of society, and previous criminal convictions do not
themselves constitute grounds for taking such measures.
Persons affected must be fully informed – in an understandable manner – about the decision to remove them
and the grounds for that decision. Additionally, an effective remedy must be at the disposal of the person to be
removed. Moreover, expulsion orders may not be issued
as a legal consequence of a custodial penalty.56 In light of
these provisions, it is obvious that removal proceedings
are lengthy and that strict conditions apply. In contrast,
proceedings for transferring prisoners are intended to be
quick, and facilitating social rehabilitation is the overarching aim. With respect to decisions on transfer proceedings, there is no requirement for an effective remedy.
For these reasons, Member States should ensure that the
transfer proceedings do not operate as a ‘lighter’ version
of removal/expulsion proceedings. If there are grounds
for expelling someone in accordance with domestic law,
expulsion proceedings should be instituted – with all procedural guarantees secured.
Persons benefiting from the Framework Decision on
probation and alternative sanctions and the Framework
Decision on the ESO run less risk of having their fundamental rights violated because they are not deprived
of their liberty. Moreover, they are subjected to measures alternative to detention, which often include social
or community elements, and that fact alone facilitates
social rehabilitation. The Framework Decision on probation and alternative sanctions provides for transferring
probation measures only, and not sentenced persons.
Additionally, a probation measure can only be transferred when a sentenced person has returned or wants
to return to their home country, or when this person
requests a transfer to another Member State (for example, to study or work there). Similarly, according to the
ESO, a measure is only transferred for supervision in
another EU Member State with the suspect’s consent.
Nevertheless, the objective of achieving social rehabilitation is mentioned in Article 1 and Recital 14 of the
Framework Decision on probation and alternative sanctions. The Framework Decision on the ESO does not
refer to social rehabilitation.
The Council of Europe Convention on the Transfer of
Sentenced Persons refers to the social rehabilitation of
sentenced persons as one of the grounds for supporting
such transfers.57 The objectives of the convention are:
• achieving greater unity between the Council of
Europe Member States;
56 Ibid., Articles 27–33.
57 Council of Europe, Convention on the transfer of sentenced
persons, Preamble.
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