Introduction: Transfers of Foreign National Prisoners/Probationers

Guest post by Stefano Montaldo, University of Turin, Italy. Stefano holds a PhD in EU law from the University of Milan Bicocca and is associate professor of EU law at the University of Turin. His main research interests focus on EU judicial cooperation in criminal matters, EU mobility and migration law, EU institutional law. This is the first post of Border Criminologies themed series on 'Transfers of Foreign National Prisoners/Probationers'.

This themed week draws on the research projects ‘Trust and Action’ and ‘RePers - Offenders’ Rehabilitation in Practice’, both co-funded by the European Union Justice Programme 2014-2020 and run by a consortium including the University of Turin, the University of A Coruña, the Italian Ministry of Justice and the Romanian Centre for European Policies (CRPE). The projects carefully examine the implementation of Framework Decisions (FD) 2008/909/JHA, 2008/947/JHA, and 2009/829/JHA in EU member states, with a specific focus on Italy, Romania and Spain.

These Framework Decisions provide for the possibility to enforce judicial decisions imposing custodial sentences or measures involving the deprivation of liberty (FD 2008/909/JHA) and probation measures or alternative sanctions (FD 2008/947/JHA) in another member state of the European Union. As such, they allow foreign national prisoners, probationers and persons sentenced to alternative sanctions to be transferred to the member state in which their (societal, family, work, cultural, etc.) centre of gravity is located, in order to facilitate his or her post-sentence social reintegration and avoid recidivism.

Building on the premise of mutual trust between domestic judicial authorities, these FDs replace the intergovernmental footprint of pre-existing conventions on mutual legal assistance and introduce a purely technical mechanism of judicial cooperation, where no role is assigned to national governments, as it usually happens instead in traditional procedures of mutual legal assistance. Therefore, they introduce an advanced mechanism centred on horizontal cross-border judicial dialogue between the issuing and executing authorities.

The relevant transfer procedures are, in themselves, simple, as they keep the formalities to a minimum and set clear and strict deadlines. The issuing (e.g. sentencing) state transmits a certificate, the template of which is attached to the FDs. This document contains all relevant information, ranging from the identity of the person concerned to the facts of the case, the relevant domestic provisions of criminal law and the sentence imposed.

In addition, the judgment is attached to the certificate. On this basis, the authority of the executing state is, in principle, expected to recognise the foreign judgment and order its enforcement, unless one of the optional grounds for refusing recognition exhaustively listed in the FDs is triggered (e.g. where the enforcement of the sentence in the executing state would breach the ne bis in idem principle or would be statute barred). The executing authority is allowed to make any adaptation with regard to the duration or nature of the measure imposed, so long as it is actually compatible with national law.

More than ten years after their adoption, the application of these instruments is still very limited, due to various factors which will be addressed in the following posts. The unexplored potential of transfer procedures has led to a very limited body of EU and national case law and has not been analysed by legal scholars. As a consequence, most of the significant knots in the drafting of these FDs are still to be undone.

The RePers and Trust and Action projects have addressed some of these challenges, through a varied set of research activities. Following a preliminary desk review phase of existing studies and literature, key-experts (judges, public prosecutors, lawyers, ministerial officers) were consulted, either through interviews or by the means of an on-line survey. This activity was supported by quantitative research on the overall number of transfers involving Italy, Romania and Spain. The third step of the research entailed both qualitative research and a more in-depth analysis of specific files. In particular, the Romanian Ministry of Justice granted access to specific landmark cases, which are illustrative of the main trends in Romanian practice. The Italian Ministry of Justice, which is party to the consortium in both projects, authorised the analysis of the documentation concerning pending and concluded transfer procedures. About 400 files were considered, covering most of the transfers processed between 2016 and 2018 by the ministerial department for international legal assistance and EU judicial cooperation. Specific attention was paid to the role of social rehabilitation concerns, the prisoners’ consent/opinion and the way it is expressed and collected, the consultations between the issuing and executing authorities, the role of the lawyer (if any), the length of the procedure, and its outcome.

This remarkable body of information fuelled the fourth and final phase of the research. The consortium conducted a series of mutual learning meetings involving selected experts and practitioners from Italy, Romania and Spain. Initially, these meetings were aimed at allowing the national authorities to share their concerns and views on the shortcomings of cross-border transfers. At a later stage, they became fruitful for an in-depth discussion on possible shared best practices and solutions to common problems, which could be beneficial for other member states in the long run.

In this framework, the posts included in this themed week distil some of the key findings of the outlined research activities. José Brandariz focuses on the interplay between transfer procedures in the domain of EU judicial cooperation and the deportation of EU nationals. He discusses the reasons why the latter practice seems to be more appealing to national authorities and underscores the ensuing concerns for an abusive use of deportation procedures. Cristina Fernández-Bessa and Valeria Ferraris address critically the unsatisfactory level of implementation of the FDs in question, pointing at some of the causes for this, most of which are connected to how these judicial cooperation instruments are perceived and managed by domestic authorities. Lastly, Valeria Ferraris and Eleonora Guidi underscore the divide between promises and reality as to the declared main objective of the FDs in question, namely fostering the transferees’ chances of social rehabilitation. By pointing at illustrative examples of national judicial and organisational practices, they contend that the daily practice often unveils the member states’ will to misuse judicial cooperation procedures as a means to dispose of unwanted migrants posing alleged challenges to public order and security.

Disclaimer: This post has been drafted in the framework of the research project Trust and Action (GA 800829), funded by the European Union Justice Programme 2014-2020 - www.eurehabilitation.unito.it. The content of this post represents the views of the members of the research consortium only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

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How to cite this blog post (Harvard style) 

Montaldo, S. (2021). Introduction: Transfers of Foreign National Prisoners/Probationers. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/01/introduction [date]