EU constitutional limits to the Europeanization of punishment: A case study on offenders’ rehabilitation
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
| DOI | 10.1177/1023263X18820692 |
| Author | Irene Wieczorek |
| Subject Matter | Articles |
Article
EU constitutional limits
to the Europeanization
of punishment: A case study
on offenders’ rehabilitation
Irene Wieczorek*
Abstract
This article contributes to the debate on the functions and limits of cross-border punishment. It
uses two existing Framework Decisions as case studies, namely on Transfer of Prisoners (2008/
909) and on Transfer of Probationers (2008/947). These texts include promoting the rehabilitative
function of punishment in cross-border cases among their objectives. However, they have been
criticized for not being fit for their purpose and being just an instrument for ‘covert’ deportation of
foreign offenders. This article argues that European Union norms on punishment should be
assessed considering the broader EU constitutional law framework, which requires EU norms not
to compress disproportionately national regulatory autonomy (Article 5 Treaty on European
Union). Against this background, it submits that some of the criticisable features of these
Framework Decisions are not a neglect of the core objective of offenders’ rehabilitation but, in
fact, the result of a legitimate balance with the interest of national regulatory autonomy. In broader
terms, this illustrates that the Europeanization of criminal justice can help to ensure the certainty
of punishment in transnational cases. Yet, due to some institutional limits, it can also compromise
the effective achievement of all its functions.
Keywords
EU criminal law, offenders’ rehabilitation, proportionality, EU constitutional law, transfer of
prisoners
*Post-doctoral Research Associate, University of Cambridge and Universit´
e Libre de Bruxelles, sponsored by the Wiener
Anspach Foundation, and FWO Postdoctoral Fellow
Corresponding author:
Irene Wieczorek, University of Cambridge Department of Law, 10 West Road, Cambridge CB4 9DQ, UK.
E-mail: irene.wieczorek@ulb.ac.be
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(6) 655–671
ªThe Author(s) 2019
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DOI: 10.1177/1023263X18820692
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1. Introduction
Since the Roman age the state has taken upon itself the task of administering justice, replacing
private revenge. In this task, the public authority does not have full discretion. Firstly, criminal
sanctions cannot be imposed for just any reason or be purposeless. Th ey should aim, and be
accordingly designed, to achieve the three legitimate functions of punishment: deterrence (per-
suading the offender, and the collectivity not to offend in the future); retribution (associating a
wrong with a sanction); and rehabilitation (helping the offender in his/her process of desistance
from crime and reintegration into society).
1
Secondly, punishment must respect the fundamental
rights of the offender.
2
Effectively securing the various functions of punishment while also
respecting fundamental rights can be a challenging task, as the two can be in tension with one
another.
3
One of the core questions of criminal legal theory is indeed how to give due consideration
to both aspects.
The tension between functions and limits to punishment becomes even more complex in a
transnational setting. Nationally based criminal justice systems are ill-equipped to address crime
that transcends national borders, and cooperation between states is required. To this aim the
European Union (EU) adopted instruments such as the European Arrest Warrant (EAW),
4
allowing
the arrest of offenders fleeing abroad, or the Transfer of Prisoners,
5
and the Transfer of Proba-
tioners
6
Framework Decisions (FDs), allowing the transfer of foreign offenders serving either a
prison sentence or a probation order or community sanction
7
to an EU state different than the
sentencing one, in order to complete their sentence. While the EAW mainly pursues deterrence and
retribution,
8
the two FDs on transfer of prisoners and transfer of offenders (hereinafter the ‘FDs’)
explicitly mention fostering rehabilitation as their goal.
9
The idea is to have offenders serve their
sentence in a country to which they have stronger ties, and thus where reintegration would be
easier.
Whether these EU instruments effectively pursue the different functions of punishment while
remaining within the relevant limits has, however, been the object of debate. The discussion has
mainly concerned the tension between certainty of punishment and respect of fundamental rights in
1. M. Cavendino and J. Dignan, The Penal System: An Introduction (Sage, 2007), p. 33 et seq.
2. Ibid., p. 2, 57 et seq.
3. For instance, effectively deterring the general public from offending requires particularly severe sanctions. Yet, this
might challenge the respect of offender’s fundamental rights, and could jeopardize the achievement of retribution, which
conversely requires sanctions to be proportionate to the specific wrong committed by the offender.
4. Council Framework Decision 584/2002/JHA of 13 June 2002 on the European arrest warrant and the surrender pro-
cedures between Member States – Statements made by certain Member States on the adoption of the Framework
Decision, [2002] OJ L 190/1 (FD EAW).
5. Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual rec-
ognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for
the purpose of their enforcement in the European Union, [2008] OJ L 327/27 (Transfer of Prisoners FD).
6. Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual rec-
ognition to judgments and probation decisions with a view to the supervision of probation measures and alternative
sanctions, [2008] OJ L 337/102 (Transfer of Probationers FD).
7. These are sanctions alternative to detention, such as the obligation to avoid certain locations, which are served amid the
community, and under the supervision of a probation officer. See Article 2(4) of the Transfer of Probationers FD.
8. See, however, also Articles 4(6) and 5(3) of the Transfer of Probationers FD, which serve the purpose of offenders’
rehabilitation.
9. Article 3 of the Transfer of Prisoners FD; Article 1 of the Transfer of Probationers FD.
656 Maastricht Journal of European and Comparative Law 25(6)
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