Detention and transfer of prisoners
The EU aims to facilitate the social rehabilitation of convicted persons by ensuring that they serve their sentence in their home country. To this end, a system was established for transferring convicted prisoners back to their EU country of nationality, habitual residence or another EU country with which they have close ties.
This system was introduced through the Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition for judgments imposing custodial sentences or measures involving deprivation of liberty.
Peter is detained in country A to execute a 2 year sentence but he is a national of country B. The authorities in country A may return him to country B so that he serves his prison sentence there in order to help the convicted person to better reintegrate in society and to facilitate his social rehabilitation. The transfer of a sentence to be served in another country may take place without the consent of the convicted person.
Article 3(4) provides that EU countries must respect fundamental rights and fundamental legal principles.
Since the decision removes (in some well-defined circumstances) the requirement that the sentenced person must consent to the transfer, even greater attention must be paid to possible infringements of fundamental rights once the transfer has taken place.
Issuing countries should take all relevant factors into account before initiating a transfer by assessing the impact on the social rehabilitation of the sentenced person.
Detention conditions perceived as poor or falling below the minimum standards required by the European Prison Rules of the Council of Europe could represent an impediment to the transfer of prisoners.
Conditional and early release
Rules on early and conditional release are governed by the executing (administering) country. If someone is sentenced to a term of imprisonment in one EU country that will be served in another, it is relevant for the person to know how much of that sentence he/she will actually have to serve.
EU countries have different rules regarding conditional or early release. There is a risk that the executing (administering) country might have a less generous system of early release than the issuing (sentencing) country: this could become an obstacle to transfers if the person concerned were to end up serving a longer sentence in the EU country to which they are transferred than they would serve in the country where they were sentenced. The executing State shall, upon request, inform the issuing State of the applicable provisions for possible early or conditional release. The issuing State may agree to the application of such provisions or it may withdraw the certificate.
The Framework Decision was due to be implemented by 5 December 2011. The diversity between EU national legislation on the enforcement of custodial sentences has considerably delayed this process.
Probation and alternative sanctions
The application of the principle of mutual recognition to alternatives to custody and measures facilitating early release is governed by the Council Framework Decision 2008/947/JHA of 27 November 2008 on probation decisions and alternative sanctions relating to the post-trial stage.
It provides that the probation decision, other alternative sanction or supervision measures may be executed in an EU country other than the one in which the person was sentenced, as long as he/she has consented.
The instruments provide that EU countries must respect fundamental rights and fundamental legal principles.
1. Anna is a national of EU country A, but is on holiday in EU country B. She is convicted of an offence in EU country B and sentenced to carry out community service instead of a custodial sentence. She can return to her home EU country A, whereupon the authorities in that EU country are obliged to recognise the community service order and supervise Anna's completion of it.
The correct application of the Framework Decision implies that probation measures and alternatives to imprisonment, as mentioned in the Framework Decision, are available in all legal systems across the EU.
2. John was sentenced to 3 years imprisonment for a drug offence in country A, where he committed the offence, and was obliged to undergo medical therapy for drugs. He is a national of country B, where he could be transferred in order to serve both his custodial sentence and undergo the medical therapy. Such a transfer is conditional upon whether similar medical therapy is available in country B and whether the convicted person consents.
The Framework Decision 2008/947/JHA was due to be implemented by 6 December 2011.
Alternative to pre-trial
Council Framework Decision 2009/829/JHA of 23 October 2009 deals with the application of the principle of mutual recognition to decisions on supervision measures as an alternative to pre-trial detention. It concerns provisional release at the pre-trial stage. It enables a non-custodial supervision (e.g. an obligation to remain at a specified place or an obligation to report at specified times to a specific authority) to be transferred from the Member State where the non-resident is suspected of having committed an offence to the Member State where he is normally resident. This allows a suspected person to be subject to a supervision measure in his home Member State until the trial takes place in another Member State, instead of being placed in pre-trial detention.
The Framework Decision 2009/829/JHA was due to be implemented by 1 December 2012.