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Judicial cooperation in criminal matters within the EU is based on the principle of mutual recognition of judicial decisions. The EAW and the ‘common rules on detention’, which include three mutual recognition Framework Decisions1, were created to improve judicial cooperation in the EU. These laws enable prison sentences, probation decisions or alternative sanctions and pre-trial supervision measures to be executed in an EU country other than the one in which the person is sentenced or awaiting trial, such as the country of nationality, residence or another EU country with which the person has close ties.2

Their implementation is based on the principle of mutual trust, which implies that conditions of  detention and procedural safeguards are equivalent in all EU Member States. In reality, however, large discrepancies exist, which might raise significant fundamental rights concerns. At the same time, the poor implementation of the Framework Decisions has been criticised by the European Commission, which highlighted the need for improvements and harmonisation among Member States.3

With regard to detention conditions, the Commission’s Green Paper on Detention stressed that “Detention conditions can have a direct impact on the smooth functioning of the principle of mutual recognition of judicial decisions”, adding that “prison overcrowding and allegations of poor treatment of detainees may undermine the trust that is necessary to underpin judicial cooperation within the European Union.”4 In addition, information on prison conditions in the EU should be more easily accessible. It is indeed crucial for surrendering States in deciding whether to transfer a  prisoner or not as it addresses the question of refoulement. There seem currently to be difficulties  in providing courts with sufficient evidence.

With regard to some of these implementation challenges, National Preventive Mechanisms (NPMs) could play an important role: the Optional Protocol to the UN Convention against Torture (OPCAT) – ratified by 24 of the 28 EU Member States - obliges State Parties to set up a system of preventive monitoring of places of detention, providing them with systematic observations and  recommendations on the protection of detainees against torture and ill-treatment.

Currently 24 NPMs carry out monitoring visits to places of detention in the EU and thus possess a considerable expertise about the treatment and conditions of detention in their countries. At the same time, research recently conducted by the BIM shows that there is hardly any interaction  between the judiciary and NPMs on the national level and even less so across Europe.5 The expertise and first-hand knowledge of NPMs as main bodies monitoring the treatment in detention thus remains unused in the application and monitoring of EU law implementation.

The project therefore aims to fill this gap by increasing the awareness of the judiciary of NPMs and the relevance of the latter in the implementation of the EAW and common rules related to detention. The project also intends to increase coordination among these stakeholders.


Text of the three laws here:
See EU Press Release, 5 Feb. 14
EC Report to the EU Parliament and the Council on the implementation by Member States of FDs 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention
Green Paper on Detention, p.4
DG Justice Project on “strengthening the implementation and follow up of torture monitoring bodies recommendations in the EU” carried out with the Human Rights Implementation Centre (Bristol Univ.)


Ramin Farinpour
Course Director and Senior Lawyer - Criminal Law
phone: +49 (0)651 937 37 310
fax: +49 (0)651 937 37 773
Foto: Ramin Farinpour LL.M.