Executive summary and FRA Opinions disabilities might require involving officers with special training or facilitators. The Framework Decision on probation and alternative sanctions even includes provisions that permit refusing a transfer if there is insufficient capacity to accommodate the needs of a transferee. Member States offer a range of alternatives that are more appropriate than detention. The examples of issues encountered by persons in situations of vulnerability given in this report point to the need for careful consideration of appropriate measures, pre- and post-trial – in particular alternatives to detention. FRA Opinion 7 To ensure effective implementation of the three Framework Decisions, the  EU and the Member States must ensure compliance with international and European human rights law obligations, as well as the  EU Charter of Fundamental Rights, regarding people in situations of vulnerability. In this context, and by way of example, rules set out in the Directive on procedural rights safeguards for children who are suspects or accused persons in criminal proceedings and the European Commission’s Recommendation on the procedural safeguards for vulnerable suspected and accused persons who are not able to understand and to effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities, could also serve as guidance in the context of transfer proceedings. Setting out effective procedures by giving a role to the person concerned in the transfer process EU Member States are still in the process of establishing relevant rules on transferring prisoners, probation orders and supervision measures under the three Framework Decisions, and clearer practices will likely emerge in future. From a fundamental rights perspective, affected persons should ideally not be treated as mere objects of transfers but instead be involved in the process to ensure that they are aware of possibilities for transfers, and that they understand the transfer process and its consequences. For instance, social rehabilitation should not be used deceptively or as an excuse to effectively ‘deport’ persons. Adequately involving potential transferees in the process will support the Framework Decisions’ overarching goals, including social rehabilitation and, thus, societal interests. Involvement includes being properly informed about options and consequences of transfers, as well as a realistic time line for the process. This would also be in the spirit of Article 1 of the EU Charter of Fundamental Rights, which guarantees the right to human dignity. FRA’s research shows that further safeguards are needed to ensure the overall fairness of the transfer process and to achieve the overall goals of the instruments. For example, findings highlight considerable divergence among the  EU Member States when it comes to informing persons potentially subjected to transfer and ways of obtaining their consent. It is important that foreign nationals are provided with translations of essential documents and interpretation to protect their rights. Directive 2010/64/EU on the right to translation and interpretation in criminal proceedings could be used to inspire responses to such needs in the context of transfer proceedings. EU-wide guidance on information about cross-border transfer proceedings and their implications could draw on Directive 2012/13/EU on the right to information in criminal proceedings. Legal aid may also be needed, at least in particular cases. Where consent is required, the applicable requirements need to be stricter, making sure that consent is provided based on objective facts about transfers and their consequences. Where consent is required, it would appear logical to grant a right to revoke such consent, at least during a certain period, given the very serious consequences of such consent. Additionally, for this reason, a  mechanism to ensure that consent was provided in full understanding of the consequences should be introduced. Where there is no consent requirement, it would similarly be logical to include a right to appeal against transfers. The right to appeal or a right to judicial review of a decision taken by an administrative body is a well-established aspect of rule of law-based societies, and expressed in the EU Charter of Fundamental Rights (Article 47); it would also boost the instruments’ credibility and overall mutual trust. Finally, the possibility, under all three decisions, for issuing states to stop transfers (withdraw certificates) at any point before actual execution/supervision has begun in executing states is important. States could make use of this option if it becomes clear that a transfer would not serve the goals of the instruments, such as social rehabilitation. 15

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents