Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers FRA Opinions

Based on its research findings, FRA has formulated opinions to offer concrete guidance on fundamental rights standards that are relevant in the context of the Framework Decision on transfer of prisoners, the Framework Decision on probation and alternative sanctions, and the Framework Decision on the European Supervision Order (ESO). Unless noted otherwise, the following FRA Opinions apply to these three Framework Decisions.

Facilitating implementation, application, and assessment of the framework decisions to improve fundamental rights compliance

The three Framework Decisions are rooted in international instruments adopted by the Council of Europe and the United Nations. More effective tools were deemed necessary for the EU’s area of justice. With an increase in the number of persons detained or subjected to alternatives to detention in EU Member States other than ‘their own’ comes a greater need for the application of these instruments. If well-implemented and carefully applied to ensure compliance with fundamental rights, they have the potential to – for instance – boost social rehabilitation, encourage greater use of alternatives to detention, and even improve detention conditions (by reducing overpopulation). To date, the use of the instruments has been relatively limited. The three Framework Decisions were also implemented rather late by EU Member States, often several years after the respective implementation deadlines. Since December 2014, the European Commission can launch infringement proceedings with respect to these instruments.

Ensuring that the instruments’ overall goals are maintained and upheld – for effective cross-border justice benefiting society and upholding fundamental rights

The three Framework Decisions partly share and partly have individual overarching goals. In general, the instruments seek to promote social rehabilitation and, apart from the Framework Decision on transfer of prisoners, also promote alternatives to detention, as well as the protection of crime victims and the public in general. The fundamental rights-links to these concepts include explicit provisions calling for a minimal use of detention, especially pre-trial, as well as the prohibition of torture and degrading treatment. For the pre-trial instrument, the presumption of innocence is also highly relevant. Fundamental rights linked to social rehabilitation include respect for family life, the rights of the child, as well as the right to work. The EU instruments must, as always, be applied in line with fundamental rights and international human rights standards.

Reducing the use of detention to comply with international human rights standards, ensure rights of detainees and protect societal interests

International human rights law requires making pretrial detention – when a suspect has not yet been found guilty – the exception rather than the rule. For example, Article 6.1 of the UN Standard Minimum Rules for Non- Custodial Measures (the so-called Tokyo Rules) refers to pre-trial detention as a means of “last resort”. Similarly, Article 37 (b) of the UN Convention on the Rights of the Child provides that detention of children shall be a measure of last resort, and Article 5 of the European Convention on Human Rights (ECHR) outlines limitations on the use of detention generally. UN and European experts and expert bodies warn against the overuse of detention. Detention should be used as penalty for crimes against individuals and society, to deter potential offenders from committing crimes, and to protect victims and society.

Increasing the use of alternatives to preand post-trial detention and harmonising the approach to comply with international human rights standards

As noted, two of the three Framework Decisions aim to encourage alternatives to detention. This is also emphasised by the UN Standard Minimum Rules for Non-Custodial Measures (the so-called Tokyo Rules, adopted in 1990), and by the UN Standard Minimum Rules for the Treatment of Prisoners (the so-called Nelson Mandela Rules, the revised version of which was adopted in December 2015). States should make available alternative measures for rehabilitating, monitoring and punishing suspects, accused, and sentenced persons that can equally or more effectively achieve criminal justice goals, as provided by the two Framework Decisions dealing with alternatives to detention.

Taking persons in situations of vulnerability fully into account

While detention can generally have negative effects, the impact can be greater for persons in situations of vulnerability, such as children, persons with disabilities, and lesbian, gay, bisexual, transgender and intersex (LGBTI) persons. Discrimination is only one of many risks that transgender persons, for example, face in detention. Studies show that there are also problems with insufficient medical attention and with abuse, including sexual assault. Such vulnerabilities must be given due consideration, and detention should only be used very exceptionally.

Setting out effective procedures by giving a role to the person concerned in the transfer process

EU Member States are still in the process of establishing relevant rules on transferring prisoners, probation orders and supervision measures under the three Framework Decisions, and clearer practices will likely emerge in future. From a fundamental rights perspective, affected persons should ideally not be treated as mere objects of transfers but instead 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. For instance, social rehabilitation should not be used deceptively or as an excuse to effectively ‘deport’ persons. Adequately involving potential transferees in the process will support the Framework Decisions’ overarching goals, including social rehabilitation and, thus, societal interests. Involvement includes being properly informed about options and consequences of transfers, as well as a realistic time line for the process. This would also be in the spirit of Article 1 of the EU Charter of Fundamental Rights, which guarantees the right to human dignity.

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 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.