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
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