A right to rehabilitation through transfer or a right to not be transferred? Identifying potential beneficiaries through nationality and residence
| Author | Ellen Vandennieuwenhuysen |
| DOI | http://doi.org/10.1177/20322844221122199 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Article |
Article
New Journal of European Criminal Law
2022, Vol. 13(3) 270–293
© The Author(s) 2022
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DOI: 10.1177/20322844221122199
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A right to rehabilitation
through transfer or a right to
not be transferred? Identifying
potential beneficiaries through
nationality and residence
Ellen Vandennieuwenhuysen
University of Antwerp, Antwerpen, Belgium
Abstract
Within the EU, two Framework Decisions have been adopted to increase the chances of social
rehabilitation of sentenced persons through the transfer of the enforcement of sentences to
another Member State. The older Framework Decision on the European Arrest Warrant contains
some mechanisms to strengthen the social rehabilitation of sentenced persons as well. First, this
article examines who can benefit from these possibilities and highlights the importance of residence
and EU nationality. It further explores whether these persons have an enforceable right to re-
habilitation or a right to transfer for the purpose of rehabilitation. Even though this does not seem
to be the case, they do have a right not to be transferred if the transfer does not facilitate re-
habilitation. However, this right proves particularly difficult to enforce, especially given the pos-
sibility for states to expel foreigners. This paper claims that without further limitations on
expulsions by states, or without giving more rights to sentenced persons under Framework
Decision 2008/909/JHA, states might rather easily be able to circumvent the main objective of that
Framework Decision.
Keywords
Right to rehabilitation, right to transfer, importance of residence and EU-nationality, mutual trust,
Framework Decision 2008/909/JHA, Framework Decision 2008/947/JHA, Framework Decision
2002/584/JHA, ECtHR, CJEU
Corresponding author:
Ellen Vandennieuwenhuysen, PhD-researcher at the University of Antwerp, Venusstraat 23, Antwerpen, 2000, Belgium.
ellen.vandennieuwenhuysen@uantwerpen.be
Introduction
For several decades prisoners have been transferred across Europe to serve their sentence in their
country of origin, and/or nationality. This has been possible on the basis of bilateral treaties and,
most importantly, the 1983 Council of Europe’s Convention on the transfer of sentenced persons.
The purpose of these instruments is to increase the chances of rehabilitation for the convicted
person. Serving the sentence in a country where language and culture are understood, close to family
and other contacts who can visit the convict in prison, and where the prisoner will be able to fully
enjoy opportunities for conditional release or parole, is thought to promote the offender’s re-
habilitation and reduce the harm deriving from imprisonment.
1
Although widely ratified, the
application of the 1983 Convention was beset by numerous hurdles, the most important of which
were the lengthy and inefficient procedures and the fact that the requested state could always refuse
to enforce the sentence.
Within the EU, Framework Decision 2008/909/JHA
2
was created to tackle such obstacles
3
and to
focus on facilitating the rehabilitation of prisoners.
4
This Framework Decision covers different
situations in which states other than the one of sentencing may be asked to take over the enforcement
of a custodial sentence. Framework Decision 2008/947/JHA
5
which was adopted simultaneously
concerns the application of the principle of mutual recognition to judgments and probation decisions
with a view to the supervision of probation measures and alternative sanctions. This Framework
Decision is perhaps even more innovative in its potential impact. Among the existing conventions,
only the Council of Europe Convention of 30 November 1964 on the Supervision of Conditionally
Sentenced or Conditionally Released Offenders included provisions relevant in this area. However,
it was only ratified by a limited number of states, and in some cases, this was with numerous
reservations.
6
On the basis of this Framework Decision, alternative sanctions and probation
1. X. Yang,‘Changes in European instrumentsas a reflection of a shift in legal philosophies relating to community sanctions
and measures’EuropeanJournal on Criminal Policyand Research 2019, (153) 157; E. De Wree, T. VanderBeken and G.
Vermeulen, ‘The Transfer of Sentenced Persons in Europe’Punishment and Society 2009, (111) 117 and 121-123; P.
Faraldo-Cabana, ‘Transferring Non-Consenting Prisoners’in S. Montaldo (ed.), The Transfer of Prisoners in the
European Union Challenges and Prospects in the Implementation of Framework Decision 2008/909/JHA, the Hague,
Chicago, Eleven International Publishing - Giappichelli, 2020, (61) 61-63; S. Montaldo, ‘Offenders’rehabilitation and
the cross-border transfer of prisoners and persons subject to probation measures and alternative sanctions: a stress test for
EU judicial cooperation in criminal matters’Revista Brasileira de Direito Processual Penal 2019, (925) 937-939.
2. Council 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 European Union (FD, 2008/909/JHA).
3. Recital 4 FD 2008/909/JHA; A. Martufi,‘Assessing the resilience of ‘social rehabilitation’as a rationale for transfer: A
commentary on the aims of Framework Decision 2008/909/JHA’NJECL2018, (43) 46-47; EU Agency for Fundamental
Rights, Criminal Detention and Alternatives: Fundamental Rights Aspects in EU Crossborder Transfers, Luxemburg,
EU, 2016, 28. Available at: https://fra.europa.eu/sites/default/files/fra_uploads/fra-2016-criminal-detention-and-
alternatives_en.pdf; E. De Wree, T. Vander Beken en G.Vermeulen, ‘The Transfer of Sentenced Persons in Europe’
Punishment & Society 2009, (111) 113;A. Martufi,‘The paths of offender rehabilitation and the European dimension of
punishment: New challenges for an old ideal?’Maastricht Journal of European and Comparative Law 2018, (672) 682.
4. Article 3 FD 2008/909/JHA; See also Recital 9, article 4,(2) and (6).
5. Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual
recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative
sanctions (FD, 2008/947/JHA).
6. See recital 4 FD 2008/947/JHA: the Convention had only been ratified by 12 Member States.
Vandennieuwenhuysen 271
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