One step forward, two steps back?: Social Rehabilitation of Foreign Offenders under Framework Decisions 2008/909/JHA and 2008/947/JHA

Abstract

[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 sentence 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 rehabilitation 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 cooperation 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.