Procedural aspects: Information and Consent
ever, practitioners in some Member States (Denmark,
Estonia, Finland, Greece, Hungary, Latvia and Slovakia)
pointed out that it is difficult to recognize whether certain practices exist because there have only been very
few cases, or no cases at all, under these two Framework Decisions.
6.6. Obtaining informed
consent
As noted, only the Framework Decision on the ESO refers
to the notion of ‘informed consent’ (in Article 9 (1)). As
a general rule, under the Framework Decision on transfer of prisoners, consent is not required when a sentenced person is to be transferred to the Member State:
of nationality and residence; to which the sentenced
person will be deported following expulsion proceedings; or to which the sentenced person fled or otherwise
returned in view of the criminal proceedings. Consent
for transfer is required in all remaining cases, which
might include a transfer to the Member State of nationality but not habitual residence, or to the Member State
of habitual residence but not nationality, or another
state. Even when obtaining an individual’s opinion is not
legally required, when a sentenced person is still in the
issuing state, they should be given an opportunity to
state their opinion in all cases. Such opinion is not binding, but nevertheless should be taken into account by
authorities. Finally, the Framework Decision on probation and alternative sanctions neither requires consent
nor an opportunity to express one’s opinion.
It is for domestic laws or practice to establish procedures aimed at obtaining informed consent from, or
the opinion of, affected persons. Table 12 presents an
overview of the situation in EU Member States in regard
to the Framework Decision on transfer of prisoners.
Table 12: Procedures in EU Member States for
obtaining informed consent for/opinion on
transfers with regard to Framework
Decision on transfer of prisoners
Consent
Opinion (when
consent not required)
AT
BE
BG
CY
CZ
DE
DK
EE
EL
ES
FI
FR
HR
HU
IE
IT
LT
LU
LV
MT
NL
PL
PT
RO
SE
SI
SK
UK
Legend
Procedure established in law
Procedure established in practice
No practice established
No procedure
Not implemented
Source: FRA, 2015
93
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