Assessing the resilience of ‘social rehabilitation’ as a rationale for transfer

AuthorAdriano Martufi
Date01 March 2018
DOI10.1177/2032284418761473
Published date01 March 2018
Subject MatterArticles
Article
Assessing the resilience of ‘social
rehabilitation’ as a rationale for
transfer: A commentary on the
aims of Framework Decision
2008/909/JHA
Adriano Martufi
Saint-Louis University of Brussels, Belgium
Abstract
This article provides an analysis of the Framework Decision 2008/909/JHA on the transfer of
sentenced persons in the European Union (EU). Particular emphasis is placed on the provisions in
the Framework Decision which makes direct or indirect reference to the aim of ‘social rehabili-
tation’. While this aim of punishment is referred to as the main rationale for transferring prisoners
to another member state, it can be argued that the EU instrument fails to provide adequate
safeguards against a potential misuse of the procedure. In particular, due to the increased auto-
maticity of transfer proceedings, there is a risk that national authorities may not conduct a case-by-
case assessment of the sentenced person’s situation. This sits at odds with the necessity of
individualization underlying the rehabilitative ideal and may give rise to fundamental rights infrin-
gements. In the conclusion, a series of policy recommendations are put forward to increase the
protection of the person’s interest to social rehabilitation.
Keywords
Transfer of prisoners, Rehabilitation, Mutual recognition, Mutual trust, Rights of prisoners
Introduction: The transfer of sentenced persons in the European Union
With the Framework Decision on the transfer of prisoners (Council Framework Decision 2008/
909/JHA, hereinafter the Framework Decision),
1
the European Union (EU) has established an ad
Corresponding author:
Adriano Martufi, Saint-Louis University of Brussels, Boulevard du Jardin Botanique 43, Brussels 1000, Belgium.
E-mail: adriano.martufi@usaintlouis.be
1. Council Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in
criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their
enforcement in the European Union.
New Journal of European Criminal Law
2018, Vol. 9(1) 43–61
ªThe Author(s) 2018
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DOI: 10.1177/2032284418761473
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hoc legal framework for the transfer of convicted prisoners across the EU. Despite its lengthy
process of transposition into national law
2
and the numerous issues surrounding its practical
implementation, this legal instrument seems likely to have a far-reaching impact on the criminal
justice systems of member states.
3
Since its establishment, the new transfer mechanism sparked controversy as to its compatibility
with the main declared purpose of judicial cooperation in this field, namely, the ‘social rehabilita-
tion’ of the sentenced persons.
4
More specifically, this legal instrument has been suspected of
pursuing different aims through the back door, notably by favouring the removal of foreign
prisoners without adequate guarantees.
5
At the same time, though, this instrument has been saluted
as a truly groundbreaking innovation, favouring an increased and more streamlined circulation of
prisoners across the EU.
Either way, there is little doubt that the Framework Decision has inaugurated a new model of
judicial cooperation in the field of interstate prison transfer. The most significant novelty, at first
sight, concerns the requirements (or procedural pre-conditions) that must be fulfilled before a
custodial sentence is forwarded to another country. Particularly significant is the removal, under
certain circumstances, of the sentenced person’s consent to transfer. Additionally, while interna-
tional law arrangements on interstate transfer have always required the agreement of the requested
state,
6
pursuant to EU law the recognition of the foreign sentence is mandatory and leaves little or
no discretion to the authorities of such country.
7
In short, the Framework Decision implies a shift from a (mainly) voluntary transfer system
based on a trilateral agreement (requesting state, requested state, and sentenced person) to a
procedure characterised by unilateral decisions of the state where a custodial sentence has been
imposed (the so-called issuing state): as a matter of principle, the authorities of the state receiving
the decision and the relative certificate (the so-called executing state) have a duty to recognise it.
Taking stock of these significant changes, some commentators have hinted that the new EU
procedure has been designed to serve the interests of the state rather than those of the individuals
affected by transfer: in other words, it has been argued that the transfer may be misused, for
example, for alleviating the burden of national prisons or forcing foreign prisoners out of the
country.
8
2. In February 2014, the EU Commission reported that, more than 2 years after the implementation date, 10 member states
had not yet implemented the Framework Decision.
3. E. De Wree, T. Vander Beken and G. Vermeulen, ‘The Transfer of Sentenced Persons in Europe’, Punishment and
Society 11(1) (2009), pp. 111–28; D. Van Zyl Smit and J.R. Spencer, ‘The European Dimension to the Release of
Sentenced Persons’, in N. Padfield, D. Van Zyl Smit and F. Du
¨nkel, eds., Release from Prison. European Policy and
Practice (Cullompton: Willan), p. 36.
4. G. Vermeulen, et al., Cross-border Execution of Judgements Involving Deprivation of Liberty in the EU (Anvers: Maklu,
2011), p. 15.
5. V. Mitsilegas, EU after Lisbon. Rights, Trust and Transformation (Oxford: Hart, 2016), p. 222 argues that the
Framework Decision on transfer is an instrument which ‘deals with the unwanted individuals whom Member States wish
to remove from their territory’.
6. M. Płachta, Transfer of Prisoners under International Instruments and Domestic Legislation: A Comparative Study
(Freiburg: Max-Planck-Institut, 1993), pp. 166–7.
7. R. Mulgrew, ‘The International Movement of Prisoners’, Criminal Law Forum 22(1) (2011), pp. 103–43, esp. 109.
8. V. Mitsilegas, ‘The Third Wave of Third Pillar Law’, European Law Review 34 (2009), pp. 523–60; S. Neveu, Le
transfert de l’exe
´cutiondes peines alternatives et restrictives de liberte
´en droit europe
´en.A la recherche d’un equilibre
entre inte
´rets individuels et collectifs (Limal: Anthemis, 2016), p. 440.
44 New Journal of European Criminal Law 9(1)

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