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Procedural aspects:
Information and Consent
▪ This chapter looks at the procedural rights of individuals subject to transfer proceedings, focusing
on the availability of information regarding the
possibility of transfer and on consent.
▪ It explores the principle of informed consent in
the context of the three Framework Decisions.
▪ This chapter also examines whether suspects or
sentenced persons are provided sufficient information to understand transfer procedures and
their consequences.
This chapter looks at the informed consent of persons
subjected to transfers in accordance with the three
Framework Decisions – on transfer of prisoners, probation and alternative sanctions, and the ESO. It explores
whether suspects or sentenced persons are provided
with information and support to make them aware of,
and help them fully understand, the procedures and
their consequences, and to express their consent or
opinions thereon.
As noted, the three Framework Decisions do not grant
rights to be transferred or not to be transferred, nor do
they grant a right to request alternatives to detention.
However, specific procedural principles are relevant.
The most relevant principles are those of the rights to
participation and to equal treatment.
Informing foreign nationals of the
possibility to transfer to another
country
The European Prison Rules, which outline recommendations by the Committee of Ministers of the
Council of Europe, provide that “[p]risoners who
are foreign nationals shall be informed of the possibility of requesting that the execution of their
sentence be transferred to another country”.
Source: Council of Europe, Committee of Ministers, Recommendation Rec(2006)2 with commentary, 11 January 2006, Rule 37.5.
The notion of informed consent in the context of
transfers of sentenced persons was first introduced
by the Convention on the Transfer of Sentenced Persons (Transfer Convention).265 It implies that the sentenced person is fully aware of all legal and practical
consequences and that they consent to the transfer
voluntarily.266 The Additional Protocol to the Transfer
Convention267 – which has been signed by 27 EU Member
States, Slovakia being the exception – provides for two
instances in which consent is not required. According
to Article 2 (1), consent is not required when sentenced
persons, nationals of a state party to the convention,
flee to their home country before having served their
sentence. The second option applies in cases of foreseen expulsion or deportation. If sentenced persons
will be subject to expulsion or deportation after having
served their prison sentence, their consent to the transfer of judgment is not required (Article 3 (1)). However,
in such cases, the sentenced persons have a right to
express their opinion, which should be taken into consideration (Article 3 (2)).
265 Council of Europe, Convention on the transfer of sentenced
persons.
266 Ibid., Art. 7.
267 Council of Europe, Additional protocol to the convention on
the transfer of sentenced persons.
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