Introduction
would in turn enhance mutual trust between Member
States. If implemented and applied correctly, the instruments can be of benefit to suspects, accused and sentenced persons and their families, but also to victims
of crime and to society at large.
A particular EU-angle on the instruments is the possible discriminatory effects on EU citizens from other EU
Member States, who may be held in pre-trial detention
to prevent escape or may not be able to take advantage
of family visits or leave during post-trial detention as
frequently as citizens of the country in which the sentence is served. The EU has taken some steps to address
these more overarching issues – for example, by soliciting views from the Member States on the desirability
of legislating or taking other action on detention,10 with
follow-up to be expected.
This report aims to:
• contribute to the work of the European Commission
in supporting the proper application of the three
EU Framework Decisions;
• support EU Member State efforts to implement and
apply the three instruments, with due attention to
fundamental rights;
• allow judges, prosecutors, government agencies,
and ministry personnel deciding on or supporting
transfers to better take fundamental rights into
consideration;
• inform decision-making by the detention and probation staff that prepares and follows up on transfers;
• support lawyers representing persons (or the persons themselves) who could potentially be transferred under the three Framework Decisions;
• provide insights that benefit civil society organisations that monitor detention conditions, support
detainees, or advocate for fundamental rights – or
could step up efforts in this regard.
Research objective and
methodology
The main objective of this study is to explore the practical application of the three Framework Decisions – how
the instruments are used in reality – with respect to
fundamental rights. The research focuses on transfers
of suspects, accused and sentenced persons. Detention
of asylum seekers and other particular forms of detention, such as to prevent the spreading of disease and
other forms of non-criminal detention, fall outside of
the scope of this study.
10
In addition to the overarching assessment of fundamental rights implications in the application of the three
Framework Decisions, this study aims to:
• examine how EU Member States have implemented
and made use of the Framework Decisions in terms
of fundamental rights (see Chapter 1);
• consider advantages and potential drawbacks of the
Framework Decisions from a fundamental rights perspective (see Chapter 2);
• explore the risks of fundamental rights violations,
including for persons in situations of vulnerability,
in the practical application of the Framework Decisions (see Chapters 3 and 5);
• analyse whether the overall goals of the Framework
Decisions – mainly promoting social rehabilitation
(see Chapter 2) and alternatives to detention (see
Chapter 4), both closely associated with fundamental rights – are achieved in practice;
• scrutinise whether affected persons are given the
opportunity to ‘participate’ in the transfer proceedings in the sense of being aware of the possibility; being informed and made to understand
the transfer process and its consequences; as well
as, where applicable, consenting to the transfer
(see Chapter 6);
• explore whether victims’ rights as made explicit in
the Victims’ Rights Directive are taken into account
in the implementation and application of the Framework Decisions (see Chapter 7).
The research identifies barriers to, and opportunities
for, implementation in practice, with a focus on the fundamental rights of the persons concerned. It also highlights promising practices.
The research design was based on very detailed guidelines developed by FRA, formulated to capture law and
practice in a comparative way from diverse systems
across the EU. These guidelines were then used by
FRA’s contracted research teams in each of the 28 EU
Member States, focusing on key fundamental rights
aspects, including the nature of social rehabilitation,
consent/information, and rights of victims. The data
and information had a cut-off line of 1 June 2015, so the
findings from the Member States cover developments
up to that date – with the exception of comparative
material from the Council of Europe and the EU, which is
up to date as of 1 May 2016. FRA drafted this comparative report in late 2015 and early 2016, drawing on the
reports from the national research teams, on analyses
of international human rights law standards, EU law, and
jurisprudence, as well as on additional desk research.
European Commission (2011a); European Commission
(2011b).
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