Underuse of Framework Decision 2008/947/JHA in the Spanish legal system: The case of conditional release. A forthcoming change in trend!
| Published date | 30 April 2024 |
| DOI | http://doi.org/10.1177/20662203241245968 |
| Author | Esther Montero Pérez de Tudela |
| Date | 30 April 2024 |
| Subject Matter | Original Articles |
Original Article
European Journal of Probation
2024, Vol. 16(1) 26–52
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/20662203241245968
journals.sagepub.com/home/ejp
Underuse of Framework
Decision 2008/947/JHA in the
Spanish legal system: The case
of conditional release. A
forthcoming change in trend!
Esther Montero P´
erez de Tudela
Jurist of Penitentiary Institutions, Universidad Loyola Andaluc´
ıa, Spain
Abstract
The enactment of Framework Decision 2008/947/JHA encounters numerous impedi-
ments, with Spain representing a particularly instructive case. Although transposed into
Spanish legislation in December 2014, the utilisation of this instrument remains notably
infrequent. This scarcity in application is, in part, due to its omission in cases of conditional
release, where there is a marked preference for pre-transposition statutes in affording
such benefits to EU citizens. Nonetheless, insights from the annual meeting of Penitentiary
Surveillance Prosecutors herald a pivot towards a mandatory engagement with
Framework Decision 2008/947/JHA. This anticipated shift portends a broader adoption
of this legal mechanism in the coming years, especially concerning conditional release.
This paper delves into the challenges inherent in implementing Framework Decision
2008/947/JHA, with a particular focus on the Spanish jurisdiction. Following a thorough
examination of relevant data and scholarly discourse, this study proposes a suite of
recommendations aimed at enhancing the utility of this legal tool.
Keywords
Framework Decision 2008/947/JHA, Spanish legal system, Spanish probation system,
conditional release
Corresponding author:
Esther Montero P´
erez de Tudela, Jurist of Penitentiary Institutions, Collaborator of the Universidad Loyola
Andaluc´
ıa, Seville, Spain.
Email: e.monteroperezdetudela@gmail.com
Introduction: Utilization and status of implementation of
Framework Decision 2008/947/JHA
Brief overview of Framework Decision 2008/947/JHA: Genesis, aims, extent,
and principal elements
In 1999, “the Tampere European Council decided that judicial cooperation in criminal
matters between the Member States should be based on the principle of mutual rec-
ognition of decisions in criminal matters”(Nauta et al., 2018: p. 3). The underlying
premise posited that mutual recognition would forge a more expeditious and efficacious
modus operandi for cooperation than the conventional legal instruments hitherto em-
ployed. The principle of mutual recognition necessitates that Member States within the
European Union (EU) acknowledge and enforce judicial decisions made in one Member
State with the equivalence accorded to decisions rendered within their own jurisdiction
(Marguery, 2016).
The array of Framework Decisions (FDs) advancing the mutual recognition principle
in criminal matters, particularly with regard to penal resolutions pertaining to accused,
suspects, or convicts, encompasses:
- 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 EU (FD 909).
- Council Framework Decision 2009/829/JHA of 23 October 2009 on the appli-
cation, between Member States of the EU, of the principle of mutual recognition to
decisions on supervision measures as an alternative to provisional detention
(European Supervision Order, FD 829).
- Council Framework Decision 2008/947/JHA of 27 November 2008 on the ap-
plication of the principle of mutual recognition to judgments and probation de-
cisions with a view to the supervision of probation measures and alternative
sanctions (FD 947).
The background for FD 947 is to be found in the Council of Europe Conventionon
the Supervision of Conditionally Sentenced or Conditionally Released Offenders
(1964), which aimed to provide mutual assistance in the social rehabilitation of
offenders (this Convention was only ratified by 20 EU Member States). FD
947 broadens the ambit to include the mutual recognition of suspended sentences,
conditional sentences, and alternative sanctions, as well as decisions regarding
conditional release, thereby incorporating probation measures and alternative sanc-
tions within its purview.
This FD aims to facilitate the social rehabilitation of sentenced persons, improve the
protection of victims and of the general public, and facilitate the application of suitable
probation measures and alternative sanctions, in case of offenders who do not reside in the
sentencing State (Art. 1 FD 947; see Montero and Garc´
ıa, 2021;Faraldo Cabana, 2021a).
Montero P´
erez de Tudela 27
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
