Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers Table 11: Consent requirements in the Framework Decisions Framework Decision on the ESO Destination EU Member State Framework Decision on transfer of prisoners Framework Decision on probation and alternative sanctions To the MS of nationality and residence Consent not required Opportunity to state an opinion Consent not required (condition of actual return or willingness to return) Informed Consent required To the MS of lawful and usual residence Consent required Opportunity to state an opinion Consent not required (condition of actual return or willingness to return) Informed Consent required To the MS of nationality but not of usual residence Consent required Opportunity to state opinion Upon request (condition Upon request (condition of the consent of that MS) of the consent of that MS) To the MS of nationality but not of usual residence, where the person will be deported Consent not required Opportunity to state opinion Consent not required (condition of actual return or willingness to return) The Framework Decision is silent on this issue To the MS to which the person fled or returned Consent not required Opportunity to state an opinion Consent not required (condition of actual return or willingness to return) Upon request (condition of the consent of that MS) Other MS Consent required Opportunity to state an opinion (condition of the consent of that MS) Upon request (condition Upon request (condition of the consent of that MS) of the consent of that MS) Source: FRA, 2016; Framework Decision on transfer of prisoners, Framework Decision on probations and alternative sanctions, Framework Decision on the ESO The Framework Decision on transfer of prisoners departs from the consent requirements set by the Transfer Convention and its Additional Protocol. Although it recognises, in Recital 5, “the need to provide the sentenced person with adequate safeguards”, it explicitly states that “their involvement in the proceedings should no longer be dominant by requiring in all cases their consent to the forwarding of a judgment to another Member State”. The Framework Decision on probation and alternative sanctions does not refer to the consent of the sentenced person at all, but to their actual willingness to return to their home country or a request to transfer. The Framework Decision on the ESO is the only one of these three Framework Decisions to refer to the notion of informed consent rather than just consent, opinion or request. Table 11 summarises the consent requirements in the three Framework Decisions. As Table 11 shows, under the Framework Decision on transfer of prisoners, a transfer without the sentenced person’s consent is the rule, and seeking consent is the exception. The issuing state does not need to obtain a sentenced person’s consent when it plans to transfer them: 84 a. to the state of nationality in which the sentenced person lives (two conditions required: nationality and residence); b. to the state of nationality, where the person does not live but to which the person will be deported after having served their sentence; c. to the state to which the person has fled or otherwise returned. All other cases would require the sentenced person’s consent. However, sentenced persons shall be given the opportunity to state an opinion orally or in writing (Article 6 (3)). The opinion shall be taken into account and forwarded together with the judgment and certificate. The person shall be informed in an understandable language about the decision to transfer. According to Article 5 (1) of the Framework Decision on probation and alternative sanctions, consent is not required when a judgment and a probation decision is to be forwarded to the Member State of lawful and ordinary residence and when a sentenced person has returned or wants to return to that state. A judgment and a probation decision might also be forwarded to another state when a sentenced persons requests such transfer and the destination state consents to it (Article 5 (2)). Moreover, the Framework Decision does not oblige authorities to consider the sentenced person’s opinion.