Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers
7.1. Legal context
Article 82 (2) of the TFEU provides that the Parliament
and Council may establish minimum rules concerning
the rights of crime victims.322 To this end, the Victims’
Rights Directive came into effect, with a transposition deadline of 16 November 2015.323 The directive
instructs Member States to act in the interest of victims
“before, during and for an appropriate time after criminal proceedings”.324 It should be noted that the directive was adopted after the three Framework Decision
at the centre of this study and that the legal rights of
victims are not mentioned in any of the three Framework Decisions. Moreover, the Framework Decisions do
not provide for any mechanisms that would safeguard
the rights of victims in the post-trial stage. However,
the Framework Decision on probation and alternative
sanctions and the Framework Decision on the ESO both
list “improving the protection of victims” as one of their
objectives.325 Additionally, with regard to execution of
the ESO, issuing states must take due account of the risk
suspects might pose to victims and to the general public.326 Moreover, the decisions do not operate separately
from other legal instruments and Member States should
ensure that transfers are carried out in accordance with
rights and obligations conferred by other applicable
legal acts. Granting victims a right to information, or
the right to express their views on transfers, would be
an important step forward in respecting the interests
of victims.327 Of the three Framework Decisions, only
the ESO relates to the course of criminal proceedings,
whereas the Framework Decision on transfer of prisoners and the Framework Decision on probation and
alternative sanctions concern the timeframe following
criminal proceedings.
On the whole, EU legislation has focused less on victims’
rights after a final sentence has been imposed, with
academics noting that “there seems to be an imbalance between victims’ rights in the (pre)trial stage
and those in the post-trial or execution stage: the first
are well developed while the latter appear almost
non-existent.”328 FRA’s 2015 report on ‘child-friendly
justice’ found that, regarding child victims, post-trial
provision of information on court decisions seems to
322 European Union, Treaty on the Functioning of the European
Union (TFEU), OJ C 326.
323 Council Directive 2012/29/EU of the European Parliament
and of the Council of 25 October 2012 establishing minimum
standards on the rights, support and protection of victims of
crime and replacing Council Framework Decision 2001/220/
JHA (Victims’ Rights Directive), OJ L 315/57.
324 Ibid., Art. 8 (1).
325 Council Framework Decision 2008/947/JHA, Recitals 8 and
24, Art. 1; Council Framework Decision 2009/829/JHA, Art. 2.
326 Council Framework Decision 2009/829/JHA, Art. 22 (2).
327 Van der Aa, S. (2014).
328 Ibid., pp. 239–256.
100
be the weakest element of the right to information in
all Member States.329
However, the Victims’ Rights Directive – adopted three
to four years after the Framework Decisions – entitles victims to receive information related to offenders’ release or escape. It specifies that “Member States
shall ensure that victims are offered the opportunity
to be notified, without unnecessary delay, when the
person remanded in custody [pre-trial detention], prosecuted or sentenced for criminal offences concerning
them is released from or has escaped detention”.330
This right is not absolute and is described in the directive as an opportunity. The subsequent paragraph provides that information about the offender’s release or
escape shall be provided upon a victim’s request, at
least when victims are in danger or run risk of harm,
unless such notification would endanger the offender.
This may also be relevant to transfers foreseen by the
Framework Decisions.
Victims’ Rights Directive on the right
to receive information about cases
“Member States shall ensure that victims are offered the opportunity to be notified, without unnecessary delay, when the person remanded in
custody, prosecuted or sentenced for criminal
offences concerning them is released from or
has escaped detention. Furthermore, Member
States shall ensure that victims are informed of
any relevant measures issued for their protection
in case of release or escape of the offender. […]
Victims shall, upon request, receive the information provided for in paragraph 5 at least in cases
where there is a danger or an identified risk of
harm to them, unless there is an identified risk of
harm to the offender which would result from the
notification.”
Source: Victims’ Rights Directive (2012/29/EU), Art. 6 (5)-(6)
(emphasis added)
In the context of transfers, victims’ right to information is affected. Under Article 6, victims have a right to
information about criminal prosecutions and criminal
proceedings. As noted above, Article 6 (5) states that
Member States should notify victims if a detainee is
released from or has escaped detention. In the context
of the Framework Decision on probation and alternative sanctions, a victim should be informed when an
offender is released on probation in view of the subsequent transfer of the probation measure to another
Member State. The same principle should be applied in
the context of the ESO – i.e. when a suspect/accused
329 FRA (2015b), p. 73.
330 Victims’ Rights Directive (2012/29/EU), Art. 6 (5)–(6)
(emphasis added).
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