JUSTICE FOR ALL
3.4 ASUPERVISION OF PROBATION MEASURES AND
ALTERNATIVE SANCTIONS
3.4.1 PAS AND FUNDAMENTAL RIGHTS
The PAS FD allows for the transfer of a sentenced person to a different Member State to
serve a non-custodial sentence imposed by
the original issuing state. It allows convicted
persons who want to move to their home
country to serve their non-custodial sentence
there without the risk of violating the terms of
their sentence by moving to another Member
State (and subsequent arrest and surrender
under the EAW because of such violation). It
aims to ensure the due course of justice and
promote non-custodial measures for non-residents (Art 2). It enables sentenced detainees
to serve within an environment in which they
have the strongest social and cultural bonds,
relations and support, and gives them the best
chances of rehabilitation.342
Together with the ESO, it was adopted to
mitigate the risks created by the EAW and
strengthen alternatives. When it comes to
fundamental rights, the PAS FD includes the
common recital as well as the common article
(see Section 3.1.1). The PAS FD also includes:
Recital 16: “A Member State may refuse to
recognise a judgment and, where applicable, a
probation decision, if the judgment concerned
was issued against a person who has not been
found guilty, such as in the case of a mentally ill person, and the judgment or, where
applicable, the probation decision provides
for medical/therapeutic treatment which the
executing State cannot supervise in respect of
such persons under its national law.”
Even though the PAS FD applies to
non-custodial measures and therefore the
risks for fundamental rights violations are
lower, fundamental rights risks should still
be assessed, just like for the ESO FD. This
could, for example, be the case when the
person concerned is subjected to a measure
of medical/therapeutic treatment that is not
compatible with international standards (e.g.,
certain non-consensual practices).
3.4.2 PAS AND PERSONS
WITH PSYCHOSOCIAL AND
INTELLECTUAL DISABILITIES
The PAS FD does contain certain provisions
relevant for defendants with intellectual and/
or psychosocial disabilities. While in principle,
all supervision measures indicated under Art
4 could be applied also to defendants with
intellectual and/or psychosocial disabilities,
certain measures are explicitly targeting
this group. Art 4 includes: ��an obligation to
undergo therapeutic treatment or treatment
for addiction.” Contrary to the ESO FD, these
measures are all applicable and no additional
notification procedure is necessary.
The following additional provisions are to
be noted, as they could also be relevant for
persons with intellectual and/psychosocial
disability:
Art 11: “The Competent authority of the
executing State may refuse to recognize the
judgment or, where applicable the probation
decision if: … i) the judgment or, where
applicable the probation decision provides
for medical/therapeutic treatment which,
notwithstanding Article 9, the executing
State is unable to supervise in view of its
legal or health-care system.”
However, the PAS FD does not provide special procedural accommodations for persons
with intellectual and/or psychosocial disabilities. For example, most EU Directives and
Recommendations are not applicable in the
post-trial stage. This may also be problematic
for the provisions on consent.
The PAS FD thus contains provisions on
fundamental rights both in its recitals and
in its common provision on Art 6, just like
the three other afore-mentioned FDs. It also
contains certain provisions which could apply
to individuals in situations of vulnerability,
as well as specific parts directly targeting
persons with intellectual and/or psychosocial
disabilities.
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