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 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 a national of EU country A. He is convicted of an offence in EU country B where he habitually lives and is sentenced to two years in prison.
The authorities in EU country B may return him to EU country A to serve the sentence without seeking his consent.
Article 3(4) provides that EU countries must respect fundamental rights and fundamental legal principles.
Since the decision removes 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 will be able to take all relevant factors into account before initiating a transfer through improving access to information about prison conditions and other countries' criminal justice systems.
There is a risk that transfers might be used to ease overcrowding in one EU country, possibly then exacerbating overcrowding in another. This could be a particular problem where one EU country has a high proportion of prisoners who are nationals of another, perhaps a neighbouring EU country.
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.
Convicted persons who do not wish to be transferred could try and argue that the transfer may risk subjecting them to inhumane or degrading treatment.
Conditional and early release
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 decision is due to be implemented by 5 December 2011. The diversity between EU national legislation on the enforcement of custodial sentences poses potential problems for the successful implementation of the decision.
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 of 27 November 2008 on probation decisions and alternative sanctions. It relates to the post-trial stage.
It provides that the probation decision or other alternative sanction may be executed in an EU country other than the one in which the person was sentenced as long as he/she has consented.
Article 1(4) provides that EU countries must respect fundamental rights and fundamental legal principles.
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, 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 Decision would imply that probation measures and alternatives to imprisonment are available in all legal systems across the EU.
To enable all EU countries to apply the rules efficiently, it may be necessary therefore to promote this type of measure at EU level.
The Decision is due to be implemented by 6 December 2011.