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).