47 Amendments of Saskia BRICMONT related to 2023/0093(COD)
Amendment 37 #
Proposal for a regulation
Recital 16
Recital 16
(16) This Regulation provides jurisdiction in specific cases, in order to ensure that, for criminal proceedings to be transferred in accordance with this Regulation, wherever the interests of efficient and proper administration of justice and the effective protection of fundamental rights of the suspect or the accused persons, as well as of the victims, as enshrined in Union law, so require, the requested State can exercise jurisdiction for the criminal offences to which the law of the requesting State is applicable. The requested State should have jurisdiction to try the criminal offences for which the transfer is sought, whenever that Member State is considered as being the best placed one to prosecute.
Amendment 38 #
(17) Such jurisdiction should be established based on specific grounds mentioned in this Regulation. A requested State should have jurisdiction in situations where the requested State refuses to surrender a suspect or accused person for whom a European arrest warrant has been issued and who is present in the requested State and isand a national of or a resident in that State, where such refusal ise requested State, if it finds that there are, in exceptional situations, substantial grounds to believe, on the basedis onf specific grounds mentioned in this Regulation. A requested Stateand objective evidence, that surrender would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in Article 6 of the Treaty on European Union and the Charter. It should also have jurisdiction when the criminal offence produces its effects or causes damages mainly in the requested State. Damage should be taken into account whenever it is one of the constituent elements of the criminal offence, in accordance with the law of the requested State. The requested State should also have jurisdiction when criminal proceedings are already ongoing in that State against the same suspect or accused person in respect of other facts so that all the criminality of such person could be judged in one single criminal proceeding, or when criminal proceedings are ongoing in that State against other persons in respect of the same or related facts, which might in particular be relevant for concentrating the investigation and prosecution of a criminal organisation in one Member State. In both cases, the suspect or accused person in the criminal proceedings being transferred should be a national of or a resident in the requested State.
Amendment 39 #
Proposal for a regulation
Recital 18
Recital 18
(18) In order to fulfil the purpose of this Regulation and to prevent conflicts of jurisdiction, having specific regard to those Member States which have their legal systems – or the prosecution of certain criminal offences – based on mandatory prosecution, the requesting State, when requesting a transfer of criminal proceedings, should waive its jurisdiction in the prosecution of the person concerned for the criminal offence for which the transfer is sought. On this basis, the competent authorities of the requesting State should be able to discontinue the criminal proceedings brought before them in favour of the Member State identified as being in a better position to prosecute, even where, in accordance with national law, they would be under a duty to prosecute. Such a waiver of jurisdiction should be without prejudice to the provisions on the effects of the transfer of criminal proceedings in the requesting State laid down in this Regulation.
Amendment 40 #
Proposal for a regulation
Recital 21
Recital 21
(21) Member States should ensure that, when applying this Regulation, the needs of vulnerable persons are taken into account. According to the Commission Recommendation (2013/C 378/02)60 , vulnerable suspects or accused persons should be understood to mean all suspects or accused persons who are not able to understand or effectively participate in criminal proceedings due to their age, their mental or physical condition or any disabilities they may have. The immigration or residence status of the suspects or accused persons, and whether they are able to understand the language of the proceeding in the requesting or requested Member State should be taken into account in the assessment of their vulnerability. _________________ 60 Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (2013/C 378/02) (OJ C 378, 24.12.2013, p. 8).
Amendment 42 #
Proposal for a regulation
Recital 25
Recital 25
(25) Where the suspect or accused person is a national of the requested State or a resident in that State, a transfer of criminal proceedings might be justified for the purpose of ensuring the right of the suspect or accused person to be present at trial, in accordance with Directive (EU) 2016/343. Similarly, where the majority of victims are nationals or residents in the requested State, a transfer can be justified to allow victims to easily participate in the criminal proceedings and to be effectively examined as witnesses during the proceedings. In cases where the surrender of a suspect or accused person for whom a European Arrest Warrant was issued is refused in the requested State on the grounds specified in this Regulation, a transfer may also be justified when that person is present in the requested State while not being a national of or a resident in that State.
Amendment 44 #
Proposal for a regulation
Recital 27
Recital 27
(27) A transfer of criminal proceedings may also be justified when criminal proceedings are ongoing in the requested State in respect of the same or other facts against the suspect or accused person, or when criminal proceedings are ongoing in the requested State in respect of the same or related facts against other persons, e.g. in cases of prosecution of cross-border criminal organisations, where different co- accused might be prosecuted in different Member States. Moreover, if the suspect or accused person is serving or is to serve a sentence involving deprivation of liberty in the requested State for another criminal offence, a transfer of criminal proceedings may be justified to ensure the right of the convicted person to be present at the trial for which transfer of criminal proceedings is sought, while serving the sentence in the requested State. Moreover, the requesting authorities should give due consideration to whether the transfer of criminal proceedings could enhance the aim of social rehabilitation of the person concerned in case the sentence were to be enforced in the requested State: for this purpose, the person’s attachment to the requested State, whether they consider it the place of family, linguistic, cultural, social or economic and any other links to the requested State should be taken into account. Moreover, the requesting authorities should give due consideration to whether the transfer of criminal proceedings could facilitate the achievement of restorative justice objectives.
Amendment 45 #
Proposal for a regulation
Recital 29
Recital 29
(29) Suspects or accused persons or victims should have the possibilityright to request for the criminal proceedings concerning them to be transferred to another Member State. These requests should not however impose any obligation on the requesting or requested authority to request or transfer criminal proceedings. These requests should however be duly assessed by the competent authorities, who shall issue a reasoned decision and inform the applicants and any other affected parties thereof. If the authorities become aware of parallel criminal proceedings on the basis of a request of transfer submitted by the suspect or accused person, or the victim, or a lawyer on their behalf, then they are under the obligation to consult each other in accordance with the Framework Decision 2009/948/JHA.
Amendment 47 #
Proposal for a regulation
Recital 30
Recital 30
(30) The requesting authority should inform as soon as possible the suspect or accused person of the intended transfer and should provide for the possibility for such person to express their opinion orally or in writing prior to the intended transfer, in accordance with applicable national law, to enable the authorities to take into account their legitimate interests before issuing a request for transfer. When assessing the legitimate interest of the suspect or accused person to be informed about the intended transfer, the requesting authority should take into account the need to ensure confidentiality of an investigation and the risk of prejudicing criminal proceedings against that persMember States should provide that the right to information of suspect or accused person includes the right of access to the file as well as any other procedural rights which are necessary to effectively exercise their right to be heard. Upon the assessment of the legitimate interest of the suspect or accused person to be informed about the intended transfer, the requesting authority may decide to exceptionally and temporarily postpone the right to be informed of the requested transfer, where necessary to avert serious adverse consequences for the life, liberty or physical integrity of a person, or to ensure confidentiality of an investigation, e.g. whenever it is necessary to safeguard an important public interest, such as in cases where such information could prejudice ongoing covert investigations or seriously harm the national security of the Member State in which the criminal proceedings are instituted. Where the requesting authority cannot locate the suspect or accused person despite its reasonable efforts being made, the obligation to inform such person should apply from the moment these circumstances change.
Amendment 52 #
Proposal for a regulation
Recital 34
Recital 34
(34) The requesting and the requested State should ensure access to effective legal remedies for suspects and accused persons, as well as for victims, against the decision to acceptrequest, accept or refuse the transfer of criminal proceedings in line with Article 47 of the Charter and the procedures applicable under national law, whenever their rights are adversely affected in the application of this Regulation.
Amendment 54 #
Proposal for a regulation
Recital 36
Recital 36
(36) The requesting authority should consult with the requested authority prior to issuing a request for transfer of criminal proceedings when this is necessary, in particular, in order to determine if the transfer of criminal proceedings would serve the interests of efficient and proper administration of justice, if it would not unduly undermine the effective protection of fundamental rights of suspects, accused persons, or victims as well as if the requested authority is likely to invoke one of the grounds for refusal under this Regulation.
Amendment 55 #
Proposal for a regulation
Recital 38
Recital 38
(38) Until the requested authority has not taken a decision to accept a transfer of criminal proceedings, the requesting authority should be able to withdraw the request, for instance when it becomes aware of further elements due to which the transfer no longer appears justified. The decision to withdraw the request should be justified in written and the justification should be shared with the suspect or accused persons, and with the victims.
Amendment 58 #
Proposal for a regulation
Recital 43
Recital 43
(43) The acceptance of transfer of criminal proceedings by the requested authority should result in the suspension or discontinuation of criminal proceedings in the requesting State to avoid duplication of measures in the requesting and requested State. This should be without prejudice to investigations or other procedural measures which may be necessary to exe requesting States should no longer prosecute the suspecute decisions based on mutual recognition instruments or to comply with requests for mutual legal assistad person for the offence linked to the proceedings subject to the transfer. The notion of ‘investigative or other procedural measures’ should be interpreted broadly, as including not only any measure for the purpose of gathering evidence, but also any procedural act imposing pre-trial detention or any other interim measure. To avoid abusive challenges and ensure that the criminal proceedings are not suspended at length, if a legal remedy with a suspensive effect has been invoked in the requested State the criminal proceedings should not be suspended nor discontinued in the requesting State until a decision on the remedy has been taken in the requested Stat respect of which the transfer of proceedings have been accepted or enforce a judgment which has been pronounced previously in that State against the suspect of accused for that offence.
Amendment 60 #
Proposal for a regulation
Recital 46
Recital 46
Amendment 62 #
Proposal for a regulation
Recital 55
Recital 55
(55) The Commission should be responsible for the creation, maintenance and development of this reference implementation software. The Commission should design, develop and maintain the reference implementation software in a way that allows the controllers to ensure compliance with the data protection requirements and principles laid down in Regulations (EU) 2018/172569 and (EU) 2016/67970 of the European Parliament and of the Council and Directive (EU) 2016/680 of the European Parliament and of the Council71 , in particular the obligations of data protection by design and by default as well as high level of cybersecurity. The reference implementation software should also include appropriate technical measures and enable the organisational measures necessary for ensuring an appropriate level of security and interoperability, taking into account that special categories of data may also be exchanged. The Commission does not process personal data in the context of creation, maintenance and development of this reference implementation software. _________________ 69 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39). 70 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 71 Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).
Amendment 63 #
Proposal for a regulation
Recital 58
Recital 58
(58) This Regulation should create the legal basis for the exchange of the personal data between the Member States for the purposes of the transfer of criminal proceedings in line with Article 8 and Article 10(a) of the Directive (EU) 2016/680. However, as regards any other aspect, such as the time period for the retention of personal data receivtransmitted by the requesting authority, and the requested authority under this Regulation, and the processing of personal data by the requesting and requested authorities and by their central authorities, where involved, should be subject to the national laws of Member States adopted pursuant to the Directive (EU) 2016/680. The requesting and requested authority should be considered as controllers with respect of the processing of the personal data under that Directive. The central authorities provide administrative support to the requesting and requested authorities and, to the extent they are competent authorities processing personal data on behalf of those controllersunder this Regulation, they should be considered as processors of the respective controllers. As regards the processing of personal data by Eurojust, Regulation (EU) 2018/1725 of the European Parliament and of the Council should apply in the context of this Regulation without prejudice to the specific data protection rules of the Regulation (EU) 2018/1727 of the European Parliament and of the Council73 . _________________ 73 Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA, PE/37/2018/REV/1 (OJ L 295, 21.11.2018, p. 138).
Amendment 68 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ‘victim’ means a victim as defined in Article 2(1), point (a), of Directive 2012/29/EU or a legal person, as defined by national law, that has suffered harm or economic loss as a direct result of a criminal offence that is the object of criminal proceedings to which this Regulation applies.
Amendment 69 #
Proposal for a regulation
Article 3 – paragraph 1 – point b
Article 3 – paragraph 1 – point b
Amendment 74 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
1. A request for transfer of criminal proceedings may only be issued where the requesting authority deems that the objective of an efficient and proper administration of justice and the protection of fundamental rights of the suspect or the accused persons, as well as of the victims, as enshrined in Union and national law, would be better served by conducting the relevant criminal proceedings in another Member State.
Amendment 75 #
Proposal for a regulation
Article 5 – paragraph 2 – point c
Article 5 – paragraph 2 – point c
(c) the suspect or accused person is present in the requested State and that State refuses to surrender this person to the requesting State either on the basis of Article 4(2) of the Framework Decision 2002/584/JHA, or of Article 4(3) thereof where such refusal is not based on a final judgement passed upon this person in respect of the same criminal offence which prevents further criminal proceedings, or on the basis of Article 4(7)(a) of that Framework Decision;
Amendment 77 #
Proposal for a regulation
Article 5 – paragraph 2 – point j
Article 5 – paragraph 2 – point j
(j) the victim or the majority of victims are nationals of or residents in the requested State.
Amendment 79 #
Proposal for a regulation
Article 5 – paragraph 2 – point j a (new)
Article 5 – paragraph 2 – point j a (new)
(j a) whether the transfer of proceedings would contribute to the achievement of restorative justice objectives.
Amendment 81 #
Proposal for a regulation
Article 5 – paragraph 3
Article 5 – paragraph 3
3. The suspect or accused person, the victim or the majority of victims, or a lawyer on their behalf, may alsshall have the right to request the competent authorities of the requesting State or of the requested State to initiate a procedure for transferring criminal proceedings under this Regulation. Requests made under this paragraph shall not create an obligation for the requesting or the requested State to request or transfer criminal proceedings to the requested State.
Amendment 83 #
Proposal for a regulation
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
3 a. The authority requesting a transfer under paragraph 1 or dealing with the request under paragraph 3 shall issue a reasoned decision and inform the applicants and any other affected parties thereof.
Amendment 87 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. Provided that it would not undermine the confidentiality of an investigation, tThe suspect or accused person shall, in accordance with applicable national law, be informed of the intended transfer of criminal proceedings, in a language which they understand, and shall be given an opportunity to state their opinion orally or in writing prior to the intended transfer, unless that person cannot be located despite reasonable efforts being made by the requesting authority. Where the requesting authority considers it necessary in view of the suspect’s or accused person’s age or their physical or mental condition, the opportunity to state their opinion shall be given to their legal representative prior to the intended transfer. Where the request for transfer of criminal proceedings follows a request from the suspect or accused person under Article 5(3), such a consultation with the suspect or accused person who made the request is not required.
Amendment 90 #
Proposal for a regulation
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Where the requested authority has taken a decision in accordance with Article 12(1), the requesting authority shall, provided that it would not undermine the confidentiality of an investigation, immediately inform the suspect or accused person, in a language which they understand, about the issuing of the request for transfer of criminal proceedings and the subsequent acceptance or refusal of the transfer by the requested authority, unless that person cannot be located despite reasonable efforts being made by the requesting authority. If the requested authority has taken a decision to accept the transfer of criminal proceedings, the suspect or accused person shall also be informed about their right to a legal remedy in the requested State, including about the time limits for such a remedy.
Amendment 91 #
Proposal for a regulation
Article 6 – paragraph 4 a (new)
Article 6 – paragraph 4 a (new)
4 a. Member States shall provide that the right to information set out in paragraphs 2 and 4 includes the right of suspects and accused persons to access the case file as well as any other procedural rights which are necessary to effectively exercise their right to be heard.
Amendment 92 #
Proposal for a regulation
Article 6 – paragraph 4 b (new)
Article 6 – paragraph 4 b (new)
4 b. Member States may exceptionally and temporarily postpone the information set out in paragraphs 2 and 4 during the investigation stage where justified in the light of the particular circumstances of the case, where necessary to: (a) avert serious adverse consequences for the life, liberty or physical integrity of a person; (b) prevent a situation where the confidentiality of an investigation would be undermined. As soon as it is no longer necessary to postpone informing the suspect of accused in order to protect ongoing investigations, the information referred to in paragraphs 2 and 4 shall be provided.
Amendment 94 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Provided that it would not undermine the confidentiality of an investigation, and wWhere the victim resides in the requesting State, they shall, in accordance with applicable national law, be informed of the intended transfer of criminal proceedings, in a language which they understand, and shall be given an opportunity to state their opinion orally or in writing unless that person cannot be located despite reasonable efforts being made by the requesting authority. Member States shall provide that the right to information of victims includes the right of access to the file as well as any other procedural rights which are necessary to effectively exercise their right to be heard. Where the requesting authority considers it necessary in view of the victim’s age or his or her physical or mental condition, that opportunity shall be given to victim’s legal representative.
Amendment 99 #
Proposal for a regulation
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Where the requested authority has taken a decision in accordance with Article 12(1), the requesting authority shall, provided that it would not undermine the confidentiality of an investigation, immediately inform the victim residing in the requesting State, in a language which they understand, about the issuing of the request for transfer of criminal proceedings and the subsequent acceptance or refusal of the transfer by the requested authority unless that person cannot be located despite reasonable efforts being made by the requesting authority. Member States shall provide that the right to information of victims includes the right of access to the file as well as any other procedural rights which are necessary to effectively exercise their right to be heard. If the requested authority has accepted the transfer of criminal proceedings, the victim shall also be informed about their right to a legal remedy available in the requested State, including about the time limits for such a remedy.
Amendment 100 #
Proposal for a regulation
Article 7 – paragraph 4 a (new)
Article 7 – paragraph 4 a (new)
Amendment 102 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Suspects, accused persons, and victims shall have the right to effective legal remedies in the requesting and requested State against a decision to acceptrequest, to accept or to refuse the transfer of criminal proceedings.
Amendment 105 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The right to a legal remedy shall be exercised before a competent court in the requesting or requested State in accordance with itsthe applicable national law.
Amendment 106 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
3. The time limit for seeking a legal remedy shall be no longer than 2030 working days from the date of receipt of information about the request issued pursuant to Article 5(1), and about the decisions referred to in Article 5(3a) and 12(1).
Amendment 109 #
Proposal for a regulation
Article 8 – paragraph 4
Article 8 – paragraph 4
4. Where the request for transfer of criminal proceedings is issued after the suspect’s or accused person’s indictment, tThe invocation of a legal remedy against a decision to request or to accept the transfer of criminal proceedings, shall have suspensive effect.
Amendment 111 #
Proposal for a regulation
Article 8 – paragraph 5 a (new)
Article 8 – paragraph 5 a (new)
5 a. The requesting and the requested authority shall inform each other accordingly about the legal remedies sought under this Article and about their final outcome within five working days from the moment when the decision on the legal remedies is taken.
Amendment 115 #
Proposal for a regulation
Article 11 – paragraph 1
Article 11 – paragraph 1
The requesting authority may withdraw the request for transfer of criminal proceedings at any time before receiving the requested authority's decision to accept the transfer of criminal proceedings in accordance with Article 12. The requesting authority shall justify the withdrawal decision in written and provide a short explanation to the suspect or accused person and the victim.
Amendment 118 #
Proposal for a regulation
Article 12 – paragraph 5
Article 12 – paragraph 5
5. When the requested authority has accepted the transfer of criminal proceedings, the requesting authority shall without delay forward the original or a certified copy of the case file or relevant parts thereof, accompanied by their translation into an official language of the requested State or any other language that the requested State will accept in accordance with Article 30(1), point (c). Where necessary, the requesting and requested authorities may consult each other in order to determine the necessary documents or parts of such documents to be forwarded, as well as to be translated.
Amendment 121 #
Proposal for a regulation
Article 13 – paragraph 1 – point f
Article 13 – paragraph 1 – point f
(f) if the requested State does not have jurisdiction over the criminal offence. Such jurisdiction could also derive from Article 3.
Amendment 123 #
Proposal for a regulation
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
(b) the requested authority considers that the transfer of criminal proceedings is not in the interest of an efficient and proper administration of justice and the protection of fundamental rights of the suspect or the accused persons, as well as of the victims, as enshrined in Union and national law;
Amendment 129 #
Proposal for a regulation
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The requested authority shall communicate to the requesting authority its decision whether to accept the transfer of criminal proceedings without delay and in any case no later than 60 working days after the receipt of the request for transfer of criminal proceedings by the competent requested authority.
Amendment 130 #
Proposal for a regulation
Article 14 – paragraph 1 a (new)
Article 14 – paragraph 1 a (new)
1 a. When suspects, accused persons, and victims exercise their right to effective legal remedies in the requesting and requested State against a decision to request, to accept, or to refuse the transfer of criminal proceedings, the requesting or requested authorities shall decide within 60 working days whether to request, to accept, or to refuse the transfer of criminal proceedings without delay, and notify such decision to the suspect or accused person and the victim.
Amendment 131 #
Proposal for a regulation
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Where in a specific case the requested authority cannot meet the time limit set out in paragraph 1, it shall immediately inform the requesting authority thereof, giving reasons for the delay. In such a case, the time limit set out in paragraph 1 may be extended by a maximum of 30 working days.
Amendment 141 #
Proposal for a regulation
Article 19 – paragraph 2 a (new)
Article 19 – paragraph 2 a (new)
2 a. When a final decision on the request and the acceptance of the transfer has been issued, the requesting state can no longer prosecute the suspected person for the offence in respect of which the transfer of proceedings have been requested or enforce a judgment which has been pronounced previously in that State against the suspect of accused for that offence.
Amendment 142 #
Proposal for a regulation
Article 19 – paragraph 3
Article 19 – paragraph 3
Amendment 146 #
Proposal for a regulation
Article 19 – paragraph 4
Article 19 – paragraph 4
Amendment 149 #
Proposal for a regulation
Article 20 – paragraph 3
Article 20 – paragraph 3
3. Evidence transferred by the requesting authority shall not be denied admission in criminal proceedings in the requested State on the mere ground that the evidence was gathered in another Member State. The evidence gathered and admissible in the requesting State may be used in criminal proceedings in the requested State, provided that the admissibility of such evidence is not contrary to the fundamental principles of law of the requested State. Member States shall ensure that there are effective remedies in place to assess the admissibility of evidence. The requested State shall take into account a successful remedy in respect of the gathering, admissibility or transmission of the evidence in the State where the evidence was gathered.
Amendment 152 #
Proposal for a regulation
Article 20 – paragraph 4
Article 20 – paragraph 4
4. Provided that a custodial sentence or detention order is issued in the requested State, the latter shall deduct all periods of detention spent in the requesting State, which were imposed in the context of the transferred criminal proceedings, from the total period of detention to be served in the requested State as a result of a custodial sentence or detention order being issued. To that end, the requesting authority shall transmit to the requested authority all information concerning the period of detention spent by the suspect or accused person in the requesting State. Equally, where the person is subject to detention pending proceedings in the requested state, all periods of detention spent in the requesting State should be taken into account in order to determine any maximum deadlines applicable to such provisory detention, and in order to assess the proportionality of that measure in the requesting state.