One step forward, two steps back? Social rehabilitation of foreign offenders under Framework Decisions 2008/909/JHA and 2008/947/JHA
| Date | 01 June 2019 |
| Published date | 01 June 2019 |
| Author | Patricia Faraldo-Cabana |
| DOI | 10.1177/2032284419859657 |
| Subject Matter | Articles |
Article
One step forward, two steps
back? Social rehabilitation
of foreign offenders under
Framework Decisions
2008/909/JHA and 2008/947/JHA
Patricia Faraldo-Cabana
Universidade da Corun
˜a, Spain
Abstract
Offenders’ rehabilitation is the declared objective of the transfer of foreign offenders to their
country of nationality/origin or permanent residence in Framework Decisions 2008/909/JHA and
2008/947/JHA. The driving rationale behind is that allowing foreign offenders to serve their sen-
tence close to home is a significant instrument in improving their chances of social rehabilitation.
However, there is a contradiction between what it is declared to be the main purpose of these
European instruments and their other explicit and implicit objectives, mainly, promoting mutual
recognition of decisions in criminal matters, reducing prison population and removing undesired
aliens. This contradiction mirrors the ambiguous role played by offenders’ consent in the context
of transfer procedures, and other aspects that do not entirely fit the purpose of increasing the
prospects of rehabilitation of foreign offenders. This article explores the concept of social reha-
bilitation in both Framework Decisions from the viewpoint that its mention as the main rationale
for transfer procedures is one important step towards a more humane model of judicial coop-
eration in the European Union (EU) area of freedom, security and justice. After an in-depth analysis
of the aims underlying the adoption of both instruments, this article contributes to the idea that
effectiveness of judicial cooperation in criminal matters, in the case of the EU, and the interest in
reducing prison population and getting rid of unwanted foreign offenders, in the case of the issuing
member states, are the true governing criteria of transfer procedures. There is a clear risk that
social rehabilitation can be used deceptively or as an excuse to effectively deport foreign offenders,
in particular where consent is not a requirement. This conclusion situates both Framework
Decisions two steps back from their point of origin, the Council of Europe conventions on the
matter.
Corresponding author:
Patricia Faraldo-Cabana, Facultade de Dereito, Universidade da Corun
˜a, Campus de Elvin
˜a, A Coruna, 15071, Spain.
E-mail: patricia.faraldo@udc.es
New Journal of European Criminal Law
2019, Vol. 10(2) 151–167
ªThe Author(s) 2019
Article reuse guidelines:
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DOI: 10.1177/2032284419859657
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Keywords
Transfer of prisoners, social rehabilitation, probation and community measures, mutual
recognition, foreign offenders
Introduction
Explanatory reports, preambles and contents of the instruments and agreements adopted in Europe
since the 1960s, which allow sentenced persons to be transferred to their country of nationality/
origin or permanent residence, have consistently referred to the offenders’ social rehabilitation as
an important objective of such transfers.
1
Further, the declared purpose of the ad hoc legal
instrument for the transfer of prisoners across the European Union (EU) is to facilitate the social
rehabilitation of the sentenced person (Article 3(1) of the Framework Decision 2008/909/JHA of
27 November 2008, 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 EU). Social rehabilitation is the main goal and the leading
principle of this instrument. The driving rationale behind this instrument is that allowing prisoners
to serve their sentence close to home improves their chances of social rehabilitation. It is com-
monly accepted that, on the whole, enforcement of a judgment in surroundings familiar to the
prisoner is more likely to facilitate his or her social rehabilitation. Social ties, particularly employ-
ment and relations with family, should be given sufficient attention during and after punishment.
2
It is also widely assumed that transfer to the home country is in a foreign prisoner’s interest since
the problems offenders experience in prison are generally exacerbated when they are foreign.
Difficulties in communication due to language barriers, lack of information about the legal system,
alienation from local culture and customs and the absence of contacts with relatives may have
detrimental effects on foreign prisoners. They are often unable to attend work or school in prison
because of language difficulties and selection criteria that exclude them, making it likelier that they
will relapse into crime.
3
It is (falsely) assumed that all of them will be deported once released; thus,
1. See the Preamble and Article 1 of the European Convention on the Supervision of Conditionally Sentenced or Con-
ditionally Released Offenders (Strasbourg, 30 November 1964, hereinafter the 1964 European Convention); Explana-
tory Report to the European Convention on the International Validity of Criminal Judgments (The Hague, 28 May 1970,
hereinafter the 1970 European Convention); Explanatory Report and Preamble to the Convention on the Transfer of
Sentenced Persons (Strasbourg, 21 March 1983, hereinafter the 1983 European Convention); Explanatory Report and
text of the UN Model Agreement on the Transfer of Foreign Prisoners, adopted by the Seventh Crime Congress on the
Prevention of Crime and the Treatment of Offenders (Milan, 16 August–6 September 1985) and endorsed by the General
Assembly in resolution 40/32 (29 November 1985); Article 2 of the Agreement on the Application between the Member
States of the European Communities of the Council of Europe Convention on the Transfer of Sentenced Persons (25 May
1987). Preamble of the Recommendation R (92) 18, concerning the practical application of the Convention on the
Transfer of Prisoners (adopted by the Committee of Ministers of the Council of Europe on 19 October 1992), also
mentioned the importance of the social rehabilitation of sentenced persons and to that end the transfer of such persons to
the country where their own society is.
2. F. McNeill, ‘A Desistance Paradigm for Offender Management’, CCL 6 (2006), p. 39.
3. See A. Tarzi and J. Hedges, A Prison Within a Prison (London: Inner London Probation Service, 1990); P. Green, Drug
Couriers (London: Howard League for Penal Reform, 1991); A. Tarzi and J. Hedges, A Prison Within a Prison – Two
Years On: An Overview (London: Inner London Probation Service, 1993); P. Green, Drugs, Trafficking and Criminal
Policy - the Scapegoat Policy (Winchester: Waterside Press, 1998); C.K. Pourgourides, S.P. Sashidharan and P.J.
Bracken, A Second Exile: The Mental Health Implications of Detention of Asylum Seekers in the UK (Birmingham:
152 New Journal of European Criminal Law 10(2)
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