Transfer of probationers under EU law: Rehabilitation and the question of legitimacy in the Netherlands
| Published date | 30 April 2024 |
| DOI | http://doi.org/10.1177/20662203241244987 |
| Author | Adriano Martufi,Marloes van Noorloos |
| Date | 30 April 2024 |
| Subject Matter | Original Articles |
Original Article
European Journal of Probation
2024, Vol. 16(1) 3–25
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/20662203241244987
journals.sagepub.com/home/ejp
Transfer of probationers under
EU law: Rehabilitation and the
question of legitimacy in the
Netherlands
Adriano Martufi
University of Pavia, Italy
Marloes van Noorloos
Leiden University, Netherlands
Abstract
This article analyses the thorniest issues raised by the implementation in the Netherlands
of Framework Decision 2008/947/JHA, often referred to as ‘European Probation Order’.
It delves into Dutch law and practice regarding mutual recognition of probation measures
and alternative sanctions and analyses how the Netherlands deals with principled
questions with respect to the legitimacy of the transfer of probationers, both as a
mechanism in itself and with respect to the ultimate goal of promoting social rehabili-
tation. The analysis focuses on (i) the basic tenets of the Dutch implementation (goals,
competent authorities and application in Dutch legal practice); (ii) challenging issues
regarding the types of probation measures and alternative sanctions eligible for recog-
nition and the implementation of refusal grounds and (iii) how procedural rights and
informed consent of the sentenced person are dealt with in relation to social
rehabilitation.
Keywords
Mutual recognition, European Union, European probation order, transfer of alternative
sanctions, Netherlands, criminal law, EU law
Corresponding author:
Marloes van Noorloos, Institute of Criminal Law and Criminology, Leiden University, PO Box 9520, Leiden
2300 RA, Netherlands.
Email: l.a.van.noorloos@law.leidenuniv.nl
Introduction
In this article, we will delve into an analysis of the thorniest issues raised by the im-
plementation of Framework Decision 2008/947/JHA (thereinafter ‘FD 947’) which
established a transfer mechanism allowing for the mutual recognition of probation
measures and alternative sanctions, across the EU’s area of ‘Freedom, Security and
Justice’, often referred to as ‘European Probation Order’(or EPO). Most notably, we aim
to analyse the way Dutch law and practice deals with mutual recognition of probation
measures and alternative sanctions.
The ‘Dutch case’regarding FD 947 emerges as a particularly relevant one for the sake
of a broader account of the ‘actual practice’of the EPO within the EU. As recently
underscored, in contrast to other national jurisdictions, the Netherlands stands out for a
relatively high use of FD 947 procedures, though relatively more so as an issuing state
(Brandariz et al., 2024;Nauta et al., 2018;Nelen and Hoffman, 2019): the newest data (as
shown in par. IIIA) show a steady increase in the past years.
While most recent EU level scholarship has cast its eye on the possible causes of the
deceiving rate of application of the legal instrument at hand (Montero P´
erez de Tudela and
Garc´
ıa Ruiz, 2023), further ‘principled’questions arise with respect to the legitimacy of
the transfer of probationers, both as a mechanism in itself and with respect to the ultimate
goal of promoting social rehabilitation. In the following, we will conduct a bottom-up
analysis drawing some answers to these questions from the national implementation of FD
947 within the Dutch legal system.
Analysing the Dutch situation, we will focus on (i) the basic tenets of the Dutch im-
plementation (goals, competent authorities and application in Dutch legal practice); (ii)
challenging issues regarding the types of probation measures and alternative sanctions eligible
for recognition and the implementation of refusal grounds and (iii) how procedural rights and
informed consent of the sentenced person are dealt with in relation to social rehabilitation.
In several respects, the European Probation Order bears resemblance to the European
Supervision Order (Framework Decision 2009/829 on supervision measures as an al-
ternative to provisional detention), which applies the principle of mutual recognition to
supervision measures as alternatives to pre-trial detention. Though such supervision
measures take place at an earlier stage in the proceedings, pre-(potential) sentencing, there
are similarities as to the Framework Decisions’goals and the types of measures to be
supervised. We will therefore address certain aspects of the European Supervision Order
throughout this paper, where relevant in relation to the European Probation Order.
Mutual recognition of probation measures and
alternative sanctions
Before delving deeper into an analysis of how FD 947 has been implemented in the Netherlands,
one must look closely at the relevant EU normative background. FD 947 allows the circulation of
judgements and probation decisions within the EU area of ‘Freedom, Security and Justice’.More
specifically,itdoessotoenablethe‘enforcement and supervision’of probation measures and
alternative sanctions in a Member State other than that in which such measure or sanction has
4European Journal of Probation 16(1)
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