Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers • developing international co-operation in the field of criminal law; • promoting justice and the social rehabilitation of sentenced persons. Likewise, the Framework Decision on transfer of prisoners repeatedly states that transfers aim to facilitate social rehabilitation of sentenced persons.58 It is important to note that all persons deprived of their liberty shall have their human rights secured (save for restrictions of the right to liberty), and rehabilitation is one of the basic principles of the European Prison Rules.59 International promising practice Social rehabilitation and transfer of federal prisoners in the USA The International Prisoner Transfer Program began operating in the USA in  1977. With more than one hundred annual transfers (based on statistics presented in  2011), the country has extensive experience, based on which guidelines on assessing prospects of social rehabilitation have been adopted. These offer a great learning opportunity. The United States Department of Justice Guidelines for the Evaluation of Transfer Applications of Federal Prisoners lists factors to be considered when assessing the likelihood of social rehabilitation. These include: acceptance of responsibility, criminal history, seriousness of the offense, criminal ties to the sending and receiving countries, family and other social ties to the sending and receiving countries, humanitarian concerns, and the length of time spent in the sending country. Source: United States Department of Justice A handbook developed by the United Nations Office on Drugs and Crime (UNODC) on the international transfer of sentenced persons also places special emphasis on the rehabilitative and re-integrative value of such transfers. The handbook underscores that “sentenced persons who serve their sentences in their home countries can be rehabilitated, resocialized and reintegrated into the community better than elsewhere. This is a positive reason for transferring sentenced persons to a state with which they have social links to serve their 58 Council Framework Decision 2008/909/JHA, Recital 9, Art. 3 and 4. 59 Council of Europe, Committee of Ministers (2006), Recommendation Rec (2006)2 of the Committee of Ministers to member states on the European Prison Rules, 11 January 2006 (Council of Europe, Rec (2006)2). 38 sentences. Imprisonment in a foreign country, away from family and friends, may also be counterproductive as families may provide prisoners with social capital and support, which improve the likelihood of successful resettlement and reintegration”.60 Transferring sentenced prisoners can also address humanitarian concerns: “Differences in language, culture and religion and distance from family and friends may increase the difficulties of imprisonment and aggravate the impact of the sentence imposed”.61. There is also a strong humanitarian argument for transferring someone if the prison conditions and regimes in the sentencing state are particularly poor or are not in line with international minimum standards. 2.1. Fundamental rights standards It is important to note that neither the ECHR nor the EU Charter of Fundamental Rights establishes a right not to be – or to be – transferred. However, according to established ECtHR and CJEU case law, states have certain obligations when making decisions about transferring people across state borders. The current volume of case law on transfers of prisoners is quite modest. However, some guidance can be drawn from jurisprudence concerning expulsion and extradition measures and the European Arrest Warrant proceedings. Whether someone is transferred abroad as a result of a transfer or the European Arrest Warrant, the principles remain the same. It appears from the jurisprudence that the most relevant fundamental rights are: • the prohibition of torture and inhuman and degrading treatment or punishment (Article 3 of the ECHR and Article 4 of the EU Charter of Fundamental Rights); • the right to respect for family and private life (Article 8 of the ECHR and Article 7 of the Charter); • the right to access a court and to a fair trial (Article 6 of the ECHR and Article 47 of the Charter). Prohibition of torture and degrading and inhuman treatment The most important obligations arise from Article 3 of the ECHR, which prohibits torture and degrading and inhuman treatment. In accordance with the so-called Soering principle, states are responsible for potential future violations of the convention, when there is a serious risk of such violations occurring on the territory of the receiving state.62 The ECtHR has confirmed this 60 UNODC (2012), pp. 9–10. 61 Ibid., pp. 12–13. 62 ECtHR, Soering v. the United Kingdom, No. 14038/88, 7 July 1989.