Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers Ensuring that the instruments’ overall goals are maintained and upheld – for effective cross-border justice benefiting society and upholding fundamental rights The three Framework Decisions partly share and partly have individual overarching goals. In general, the instruments seek to promote social rehabilitation and, apart from the Framework Decision on transfer of prisoners, also promote alternatives to detention, as well as the protection of crime victims and the public in general. The fundamental rights-links to these concepts include explicit provisions calling for a minimal use of detention, especially pre-trial, as well as the prohibition of torture and degrading treatment. For the pre-trial instrument, the presumption of innocence is also highly relevant. Fundamental rights linked to social rehabilitation include respect for family life, the rights of the child, as well as the right to work. The EU instruments must, as always, be applied in line with fundamental rights and international human rights standards. FRA’s findings show that a large majority of EU Member States considers fundamental rights and social rehabilitation prospects when deciding on transfers of prisoners. Family and social ties are the most important factors, followed by humanitarian concerns and detention conditions. However, the research shows that many Member States approach social rehabilitation rather narrowly, focusing merely on transferring persons to their ‘home country’. Prospects for social rehabilitation should be assessed on a case-by-case basis and be taken very seriously. There is an assumption that social rehabilitation is only possible in the offender’s state of nationality; this assumption runs contrary to the objectives of the Framework Decision on transfer of prisoners. This Framework Decision emphasises the need to assess whether a transfer would indeed facilitate the sentenced person’s social rehabilitation. If a transfer would not do so, a state is free to refuse the transfer. Hence the Framework Decision itself does not assume that transfers to the home country always positively affect social rehabilitation. Certain factors need to be considered, such as the capacity to facilitate social rehabilitation during detention, family and social ties, linguistic and cultural ties, and place of residence after release. This also permits supporting particular fundamental rights, such as rights related to family life, work and education. 12 FRA Opinion 3 It should not be assumed that social rehabilitation is only possible in the offender’s state of nationality. In applying the three Framework Decisions, EU Member States must remain true to the instruments’ objectives, particularly social rehabilitation, and avoid simply sending persons back to ‘their home country’. Social rehabilitation prospects should be assessed on a  case-bycase basis, and the capacity to facilitate social rehabilitation during detention, for instance, must be considered. The principle of mutual recognition underpinning the three Framework Decisions hinges on mutual trust – a sufficient level of confidence between Member States as to the level and quality of justice systems. When assessing fundamental rights implications, states have clear guidelines from the jurisprudence of the ECtHR and the CJEU. FRA’s analysis of recent CJEU judgments in particular underscores that EU Member States are prohibited from transferring people to places where their fundamental rights will be at risk, especially their right to dignity and to freedom from inhuman and degrading conditions. It is particularly important that the individual situation in a Member State is strictly evaluated. FRA Opinion 4 In light of international human rights and EU fundamental rights standards and jurisprudence, EU Member States are prohibited from transferring people to places where their fundamental rights will be at risk, especially their right to dignity and to freedom from inhuman and degrading conditions. It is particularly important that individual situations are strictly evaluated when the issue is raised, and when practitioners – such as judges  – are required to determine detention conditions in the state to which a person is to be transferred. This is particularly true when there is objective evidence of systemic shortcomings in a given state’s detention facilities. In this context, the  EU  – in cooperation with the Member States  – should consider making much more easily available information on detention conditions (as well as on alternatives) in all EU Member States, drawing on existing international, European, and national monitoring reports. This would include a  more objective, accessible and operational information system that could also be coupled with indicators on detention conditions and benchmarks for such conditions, allowing for greater clarity on when transfers could be made without fundamental rights concerns. This would be a useful tool for judges and others who need to make decisions about detention conditions in other Member States.