Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers
reservations (see Recital 4 of the Framework Decision
on probation and alternative sanctions).40
Moreover, the Seventh United Nations Congress on the
Prevention of Crime and the Treatment of Offenders
adopted a Model Agreement on the Transfer of Foreign Prisoners and recommendations on the treatment
of foreign prisoners in 1985.41 In the Model Agreement,
transfer is also based on a system of mutual respect for
national sovereignty and jurisdiction and on the consent
of the sentenced person. Although only providing a ‘template’ for both bilateral and multilateral agreements, it
shows the global community’s commitment to fostering
such practice. In 2012, the UNODC published a Handbook
on the International Transfer of Sentenced Persons.42
Also at the United Nations level, the Convention against
Transnational Organized Crime43 and the Convention
against Corruption44 explicitly refer to the possibility
for state parties to enter into bilateral or multilateral
agreements on the transfer to their territory of persons
sentenced to imprisonment or other forms of deprivation of liberty. The EU itself is party to the two conventions (since 2004 and 2008, respectively).
1.6. Gathering experiences
and collecting data
All three Framework Decisions require designating a central authority to act as point of contact for incoming and
outgoing requests for transfers.45 States are to inform
the General Secretariat of the Council which authorities
are competent to act under the Framework Decision.
Pursuant to the Framework Decisions, central authorities are established to coordinate transfers and mutual
recognition of decisions and to act as national points
of contact in these matters. They have a duty to communicate with each other and to engage in information
exchanges for the smooth operation of the Framework
Decisions. Central authorities shall exchange information on suspects, their compliance with supervision
measures, their criminal records, and changes in their
circumstances. Research shows that, in general, states
rely on courts, the Ministry of Justice, the police, prison
and probation services, and diplomatic missions.
40 Four other EU Member States have also signed the
convention. Among the non-EU Member States, there
are 6 additional state parties and one state that has only
signed.
41 UN, Office on Drugs and Crime (UNODC) (1985).
42 UNODC (2012).
43 United Nations (UN), Convention against transnational
organized crime (Palermo Convention), 15 November 2000,
Art. 17.
44 UN, Convention against corruption, 31 October 2003, Art. 45.
45 Council Framework Decision 2008/909/JHA, Art. 2;
Council Framework Decision 2008/947/JHA, Art. 3; Council
Framework Decision 2009/829/JHA, Art. 6.
32
Judicial Atlas
The European Judicial Network has an interactive
web tool to facilitate judicial cooperation. The
Judicial Atlas allows users to identify the locally
competent authority that can receive a request
for judicial cooperation and provides a fast and
efficient channel for the direct transmission of
requests regarding a selected measure. The tool
offers information on all 28 Member States, candidate countries and associated European countries. The site also offers information on the three
Framework Decisions, as well as on other European instruments on judicial cooperation.
Source: European Judicial Network, Judicial Atlas
According to FRA’s findings, 14 Member States46 collect information about their experiences with transfers
through the Framework Decision on transfer of prisoners. 12 Member States47 do not gather information
on such transfers. No information was available from
Malta and Sweden.
When one turns to the Framework Decision on probation and alternative sanctions and the Framework Decision on the ESO, the extent of information collected by
Member States’ competent authorities drops: 17 and
19 Member States do not provide for the compilation
of transfer-related information, respectively.
FRA’s findings also show that only a few competent
national authorities collate personal data, or at least
only few of them are required to do so on a legal basis:
eight Member States for the Framework Decision on
the transfer of prisoners, five for the Framework Decision on probation and alternative sanctions, and none
for the Framework Decision on the ESO. This could be
problematic because data on individual cases are necessary for the overall improvement of national mechanisms for accessing treatment and assistance. Privacy
safeguards must certainly also be in place to rule out
incorrect usage of the data.
Promising practices in Member States
The Framework Decisions have not been frequently
utilised and practical examples of activities that go
beyond the standard operational procedure of institutional collaboration are therefore rather modest.
Out of the 28 Member States, FRA identified six48 with
46 Austria, Belgium, Croatia, Denmark, Estonia, Finland, France,
Germany, Ireland, Latvia, Lithuania, Poland, Portugal and
the United Kingdom.
47 Bulgaria, Cyprus, the Czech Republic, Greece, Hungary, Italy,
Luxembourg, the Netherlands, Romania, Slovakia, Slovenia
and Spain.
48 Poland, Portugal, Romania, Slovakia, Slovenia and the
United Kingdom.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents