Framework Decision 2008/909/JHA on the transfer of prisoners in the EU: Advances and challenges in light of the Italian experience
| Author | Stefano Montaldo |
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| DOI | http://doi.org/10.1177/2032284419878270 |
| Subject Matter | Articles |
Article
Framework Decision
2008/909/JHA on the transfer
of prisoners in the EU:
Advances and challenges in
light of the Italian experience
Stefano Montaldo
University of Turin, Italy
Abstract
The article addresses the implementation of Framework Decision 2008/909/JHA on the transfer of
prisoners in the European Union (EU) and discusses its advances and shortcomings from a twofold
perspective: the general features and objectives underpinning the Framework Decision and how
these theoretical premises have been put into practice by domestic authorities. First, the article
discusses the state of the art of the implementation of this mechanism in Italy and provides relevant
data. Second, it addresses the main strategies enacted in Italy by the judiciary, the legislature and
the executive power to maximise the impact of the national implementing laws. The analysis
demonstrates that these efforts are mainly intended to dispose of unwanted EU citizens and to
cope with prison overcrowding, thereby marking a clear departure from the rationale of the
Framework Decision. Third, the article focuses on the recurring challenges regarding horizontal
cooperation between domestic judicial authorities, with a specific focus on the division of com-
petences between the issuing and the executing authorities in light of the EU and the Italian case
law. The article supports the view that the Italian case study can represent a test bed for future
quantitative and qualitative improvements in the implementation of this Framework Decision at
the EU level.
Keywords
Prisoner, transfer, enforcement of a sentence, mutual trust, implementation
Corresponding author:
Stefano Montaldo, Department of Law, University of Turin, Lungo Dora Siena 100, Turin 10124, Italy..
E-mail: stefano.montaldo@unito.it
New Journal of European Criminal Law
2020, Vol. 11(1) 69–92
ªThe Author(s) 2019
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DOI: 10.1177/2032284419878270
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Introduction: Framework Decision 2008/909/JHA and the state of the
art of its implementation at national level
Framework Decision 2008/909/JHA applies the principles of mutual trust and mutual recognition
to cross-border transfers of prisoners among the European Union (EU) Member States.
1
As is the
case for many other EU acts concerning judicial cooperation in criminal matters, this instrument
replaced the intergovernmental footprint of the pre-existing Convention of the Council of Europe
on the Transfer of Sentenced Persons of 1983.
2
In fact, the Convention had received little attention
across the EU and its limited application had proven to be unsatisfactory, mainly because of its
lengthy and cumbersome procedures.
3
On the other hand, the advanced mechanism established by the Framework Decision obliterates
the role of the political branch, as it is centred on the golden rule of EU judicial cooperation in
criminal matters, namely the duty on the part of the receiving authority to recognise the foreign
judgment and to execute the transfer request. Therefore, the Framework Decision minimises
unnecessary formalities and reiterates two major recurring features of EU legislation in this
domain: the abolition of the double criminality check in relation to a list of serious offences
4
and
the provision of an exhaustive list of optional grounds for denying recognition.
5
However, notwithstanding these initial ambitions,
6
10 years after its adoption, this instrument is
stuck at the level of a promising youngster showing auspicious potential for the years to come. Its
practical application by the national judicial authorities is still below expectations,
7
although it is
slowly increasing on a yearly basis, at least in some Member States.
8
The unexplored potential of
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.
2. See also its Additional Protocol of December 1997, which entered into force in 2000. A new Additional Protocol
amending the previous one was open to signatures in November 2017 and has not yet entered into force. More precisely,
within its scope of application, Framework Decision 2008/909/JHA also replaces the European Convention on the
transfer of sentenced persons of 1983 and its additional Protocol, the Convention on the International Validity of
Repressive Judgments of 1970, the relevant provisions of the Convention implementing the Schengen Agreement, and
the Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal
Sentences of 1991.
3. J.-C. Froment, ‘Les avatars de la Convention sur le transf`erement de d´etenus en Europe’, in J. Cer´e, ed., Panorama
europ´
een de la prison (Paris: L’Harmattan, 2002), p. 33.
4. See Article 7(1)(2) of Framework Decision 2008/909/JHA, which reflects corresponding provisions included in most of
the EU secondary acts in this domain.
5. See Article 9 of Framework Decision 2008/909/JHA. Article 10 also allows for partial recognition and execution. In
addition, Article 11 provides for postponement of execution if the certificate is incomplete or does not correspond to the
judgment. Another key departure from the previous intergovernmental regime is the provision of strict deadlines for
handling the procedure and issuing a final decision: see Articles 12(1)(2) and 15(1).
6. The negotiations started following the 2005 Initiative of the Republic of Austria, the Republic of Finland and the
Kingdom of Sweden with a view to adopting a Council Framework Decision on the European enforcement order and the
transfer of sentenced persons between Member States of the European Union. The initiative relied heavily on mutual
trust between the Member States to impose a ‘basic duty to take charge of sentenced persons for enforcement of a
sentence or order’ (recitals 4 and 5).
7. European Union Agency for Fundamental Rights, ‘Criminal Detention and Alternatives: Fundamental Rights Aspects in
EU Cross-Border Transfers’ (2016). Available at: https://fra.europa.eu/en/publication/2016/criminal-detention-and-
alternatives-fundamental-rights-aspects-eu-cross-border (accessed 5 March 2019).
8. Europris, ‘Framework Decision 909 – Reports’. Available at: https://www.europris.org/topics/framework-decision-909
(accessed 5 March 2019).
70 New Journal of European Criminal Law 11(1)
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