Two worlds colliding: Offenders’ rehabilitation and victims’ protection through mutual recognition of probation measures
| Author | Patricia Faraldo-Cabana |
| DOI | 10.1177/20662203211006876 |
| Published date | 01 August 2021 |
| Date | 01 August 2021 |
| Subject Matter | Original Articles |
2021, Vol. 13(2) 145 –160
https://doi.org/10.1177/20662203211006876
European Journal of Probation
© The Author(s) 2021
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DOI: 10.1177/20662203211006876
journals.sagepub.com/home/ejp
Two worlds colliding:
Offenders’ rehabilitation and
victims’ protection through
mutual recognition
of probation measures
Patricia Faraldo-Cabana
Universidade da Coruña, Spain; Queensland University of Technology, Australia
Abstract
Framework Decision 2008/947/JHA explicitly combines offenders’ rehabilitation with
other purposes, such as the improvement of the protection of victims. This article
provides one of the first analysis of the aim of ‘victim protection’ in the Framework
Decision and of its limited usefulness. The relationship between victims’ right after
sentencing and the transfer of probation measures reveals a contradictory system unable
to coordinate victims’ protection and compensation and offenders’ social rehabilitation.
Keywords
Directive 2012/29/EU, Framework Decision 2008/947/JHA, mutual recognition,
probation measures, protection measures, social rehabilitation, Victim’s rights
Introduction
International instruments and agreements adopted since the 1960s, which allow prison-
ers 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. From the perspective that community measures and alternative sanctions
constitute important approaches to avoid the negative effects of imprisonment, many
European instruments and agreements have also referred to offenders’ rehabilitation as
an important objective of such measures, starting with the European Convention on the
Supervision of Conditionally Sentenced or Conditionally Released Offenders (Strasbourg,
30 November 1964). In addition, Council of Europe recommendations mentioned other
related concepts, such as social adjustment, social inclusion or reintegration, as did
Corresponding author:
Patricia Faraldo-Cabana, Department of Public Law, Facultad de Derecho, Universidade da Coruña, Campus
de Elviña s/n, 15071 A Coruña, Spain.
Email: patricia.faraldo@udc.es
1006876EJP0010.1177/20662203211006876European Journal of ProbationFaraldo-Cabana
2021
Original Article
146 European Journal of Probation 13(2)
2 European Journal of Probation 00(0)
Recommendation Rec(2003)22 on conditional release (parole) (adopted by the
Committee of Ministers on 24 September 2003 at the 853rd meeting of the Ministers’
Deputies) and Recommendation of the Committee of Ministers to member States on the
European Rules on community sanctions and measures (adopted by the Committee of
Ministers on 22 March 2017 at the 1282nd meeting of the Ministers’ Deputies).
On 30 November 2000, the Council of the European Union adopted the Programme
of measures to implement the principle of mutual recognition of decisions in criminal
matters (2001/C 12/02, hereinafter Programme of measures), which signalled that the
transfer of sentenced persons should be promoted ‘in the interests of social rehabilita-
tion’ (measure 3.1.4). This purpose is also declared in the ad hoc legal instrument for the
transfer of judgements and probation decisions across the European Union (EU), as can
be seen in Recital 24 and Article 1 of Framework Decision 2008/947/JHA of 27
November 2008 on the application of the principle of mutual recognition to judgements
and probation decisions with a view to the supervision of probation measures and alter-
native sanctions (hereinafter, the Framework Decision). Recital 8 adds the concept of
reintegration and emphasises that the Framework Decision aims to enhance the prospects
of the sentenced person being reintegrated into society by allowing the measure imposed
to be supervised in the state with which the person has the closest ties, whether they be
family, linguistic, or cultural. Arguably though, the facilitation of suitable probation
measures and alternative sanctions for offenders not residing in the country of conviction
is not done for its own sake but to reduce the use of imprisonment of foreign and non-
resident nationals by allowing them to serve a community sentence in their own country
(Morgenstern, 2009; Van Zyl Smit et al., 2015). Therefore, the aim of this Framework
Decision is not only to enhance the prospects of rehabilitating offenders, as highlighted
by Snacken and McNeill (2012), but also ‘to improve monitoring of compliance with
probation measures and alternative sanctions, with the view to preventing recidivism,
thus paying due regard to the protection of victims and the general public’ (Recital 8).
In fact, unlike other mutual recognition instruments, such as Council Framework
Decision 2008/909/JHA of 27 November 2008, on the application of the principle of
mutual recognition to judgements in criminal matters imposing custodial sentences or
measures involving deprivation of liberty for the purpose of their enforcement in the
European Union, the Framework Decision on probation measures explicitly combines
offenders’ rehabilitation with other purposes. Among these purposes are the improve-
ment of the protection of victims and of the general public. It is one of the seven param-
eters identified to determine the effectiveness of mutual recognition in the Programme of
measures to implement the principle of mutual recognition, which describes it as ‘mech-
anisms for safeguarding the rights of third parties, victims and suspects’. The reason
beyond this mention is easy to understand:
if in case of custodial sanctions and measures the offender is confined and cannot represent any
threat to the public in general or the victim, in particular, when alternative non-custodial sanctions
are applied, there is a theoretical risk to the general public and the victim. (Niţu, 2016: 63)
Nonetheless, it is not clear in the text how this due attention to the protection of victims
will be achieved, particularly if one takes into account that the word ‘victim’ is men-
tioned only when the aims of the Framework Decision are stated. The text provides no
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