Detention and transfer of prisoners

The EU aims to facilitate the social rehabilitation of convicted persons by allowing them to serve their sentence in their home country. To this end, convicted prisoners can be transferred back to their EU country of nationality, habitual residence or another EU country with which they have close ties. These transfers are governed by Council framework decision 2008/909/JHA.

The issuing EU country should assess the impact of the transfer on the prisoner's social rehabilitation. Prisoners should not be transferred to countries where detention conditions do not meet minimum standards required by the Council of Europe's European prison rules.

The European Commission published a Handbook on the transfer of sentenced persons and custodial sentences in the European Union (2019/C 403/02) to facilitate and simplify the daily work of designated competent authorities.

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.

The instrument applies to alternatives to custody and to measures facilitating early release at the post-trial stage, for example an obligation not to enter certain places, to carry out community service or instructions relating to residence or professional activities. The probation decision or other alternative sanction can be executed in another EU country, as long as the person consents.

The framework decision 2009/829/JHA deals with the application of the principle of mutual recognition to decisions on supervision measures as an alternative to pre-trial detention. The instrument allows a suspected person to be subject to a supervision measure in their home EU country until the trial takes place in another country, instead of being placed in pre-trial detention in a foreign country.

Although all Member States must comply with the European Convention on Human Rights (ECHR), in practice there are significant differences in relation to pre-trial detention, and material detention conditions vary enormously. Prison monitoring bodies across the EU report concerns (e.g. access to hot water, limited use of toilets and lack of separation of sanitary areas in cells). The substantial differences between Member States have an impact on mutual trust and judicial cooperation in criminal matters, justifying the need for further guidance at EU level. Such major divergences are at odds with the ethos of a common EU area of freedom, security and justice and can create problems for national authorities in cross-border situations. In the Aranyosi/Căldăraru and follow-up judgments, the CJEU acknowledged the importance of detention conditions in the context of mutual recognition and the operation of the European Arrest Warrant (EAW). Since 2016, execution of an EAW has been delayed or refused on grounds of real risk of breach of fundamental rights in nearly 300 cases.

On 8 December 2022, the Commission adopted a Recommendation on procedural rights of suspects and accused persons subject to pre-trial detention and on material detention conditions. 
This Recommendation provides a consolidated overview of selected European minimum standards for material conditions of detention and procedural rights in pre-trial detention with a focus on key priority areas for the protection of fundamental rights of prisoners, in order to enhance judicial cooperation in criminal matters between Member States.