Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers
FRA Opinion 8
To ensure effective implementation of the
three Framework Decisions, and to stay true to
their objectives, but also to ensure compliance
with the EU Charter of Fundamental Rights, in
particular the right to human dignity (Article 1),
the EU and the Member States need to take
further action to ensure that the three Framework
Decisions cannot be interpreted in a manner that
sees potential transferees as mere objects of
transfer. Instead, all potential transferees should
be involved in the process to ensure that they
are aware of possibilities for transfers, and that
they understand the transfer process and its
consequences. Minimum rules – which could be
inspired by the EU legislation on interpretation
and translation, as well as on the right to
information – should be established to ensure
that consent is provided based on a sufficient
level of information.
Similarly, when consent is not required
(possible under the Framework Decision on
transfer of prisoners), it should be ensured
that the information provided is adequate
for a sufficient level of understanding of the
process and its consequences. Additionally,
where consent for transfers is required, EU
Member States should explicitly allow for
withdrawals of such consent within a certain
time limit given the potential consequences of
transfers for individuals. Member States should
also consider an appropriate remedy for cases
where potential transferees object to transfers.
To strengthen mutual trust and, by extension,
mutual recognition, Member States should
apply similar rules on how to inform persons
potentially subjected to transfer and how to
obtain their consent or inform them about the
transfer process and its consequences.
Ensuring effective protection of
victims’ rights
In the context of cross-border transfers of suspects,
accused and sentenced persons, victims’ rights to information and participation are affected. Two of the three
Framework Decisions on transfers identify the protection of victims as overarching goals. Rights of victims
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are not explicitly mentioned in any of the three Framework Decisions. The Victims’ Rights Directive – adopted
three to four years after the Framework Decisions – contains relevant rules in this regard. FRA’s overall findings
show that, while it is not common for Member States to
address victims in legislation implementing the three
Framework Decisions, some states in practice do take
victims into consideration and keep them informed
when organising and making decisions on transfers.
While a victim’s right to information on transfers of suspects or sentenced persons is not established, the right
to receive information related to an offender’s release
or escape – including in transfer situations – stems from
Article 6 (5) of the Victims’ Rights Directive. Regardless
of whether or not Member States have laws or practices establishing victims’ right to receive information,
FRA’s research suggests that, in general, information is
not automatically offered but is dependent on victims
actively requesting the information from authorities.
FRA’s findings on the implementation of the Framework
Decisions show that such rights are granted to victims
in the post-trial phase only in a minority of Member
States. However, the deadline for transposing the Victims’ Rights Directive –16 November 2015 – had not
passed at the time of data collection for this research,
and Member States are expected to make progress in
this area in the coming months and years.
FRA Opinion 9
To ensure effective implementation of the three
Framework Decisions, further action is needed.
Recalling and building upon FRA opinions from
the 2015 report on Victims of crime in the EU:
the extent and nature of support for victims, EU
Member States should introduce measures ensuring that – at all stages of the criminal process,
including during the post-trial phase – victims
have access to information about their rights and
available support services, as well as to relevant
information about their cases, including postsentencing. Member States should implement
the minimum standards established in Article 6
of the Victims’ Rights Directive, ensuring that
victims also have a right to information, in crossborder settings through effective EU cooperation
– including the right to be informed of suspects’/
sentenced persons’ transfers or release.
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