Guest post by Valeria Ferraris and Eleonora Guidi. Valeria is assistant professor of sociology of Law and devianza at the Law Department of the University of Turin. Her main research topics are related to immigration control, international protection and corruption. Eleonora has over 15 years’ experience as project coordinator and expert at Amapola, an Italian NGO working on urban policies. Her main areas of interest include urban safety, social cohesion, inclusive cities, and community development. This is the final post of Border Criminologies themed series on 'Transfers of Foreign National Prisoners/Probationers'.

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Over the past years, an ever-expanding body of literature has extensively discussed the gradual strengthening of EU police and judicial cooperation in criminal matters and the connected rise of pan-European interests underlying cooperation measures. Yet, the development of this policy domain still largely reflects the traditional tension between EU-steered objectives and the diverging political priorities of member states.

The Framework Decisions (FDs) 2008/909/JHA and 2008/947/JHA are key examples of this multilevel tension. Despite their inherent differences, these instruments share a common objective, namely fostering the sentenced person’s chances of social rehabilitation. To do so, these mechanisms of EU judicial cooperation allow the enforcement of a custodial sentence or a probation or alternative measure to move to the member state where the person concerned would benefit from closer personal, family and societal ties. This is in line with the daily implications of free movement in the European area of freedom, security and justice.

In principle, an EU-wide approach to the promotion of the offenders’ social rehabilitation is an important paradigm shift as to how public order concerns are conceived and perceived across the Union. The core idea is that crime is not a purely national problem anymore, and so neither are offenders. It follows that member states are expected to change the way they approach foreign offenders, from ‘unwanted migrants’ threatening domestic public order to a ‘shared burden’. This means that, in principle, the member states’ priority should not be to remove unwanted foreigners from their territory, with a view to allocate the responsibility over them on their country of origin. Instead, they should cooperate to find out which solution protects security and individual rights at an EU-wide level.

However, the work carried out within the Repers and Trust & Action projects shows that the national authorities are very often far from taking this paradigm shift seriously.

As a general remark, the practice on FD 2008/909/JHA – as well as the political discourse on how it should be used at the national level – reveals that social rehabilitation is not the priority of cross-border transfers of prisoners. Conversely, the astonishingly poor level of implementation of FD 2008/947/JHA further demonstrates that not a single state has placed this important instrument in its political agenda over the last ten years. In this respect, neither the executive branch nor the judicial power are immune to criticism.

Moving to the actual functioning of these mechanisms, the fieldwork carried out in Italy – in particular through the analysis of case files on FDs 2008/909/JHA and 2008/947/JHA and interviews with key experts and practitioners – shows that the post-transfer opportunities of social rehabilitation are very seldom taken into due consideration.

In practice, with regard to transfer procedures, information was not requested about the detention facility to which the transferee would be sent, and the concrete possibility to be engaged in social rehabilitation programmes while in prison or on probation was not ascertained. Only in one out of about four hundred case files, did we find a detailed analysis of the individual situation of the prisoner concerned – especially from a mental health viewpoint – along with a statement that he/she urgently needed to re-join the family and to continue the medical treatment he/she was carrying out in their country of origin. Sadly enough, this information did not play any role in accelerating the transfer in this case, which was eventually denied on grounds that (our translation) “in the absence of a thorough hearing of the person concerned, there is not sufficient information regarding the prisoner’s future plans […]. More details should be collected”.

As already underlined elsewhere (see work by Ferraris) another piece of evidence of the misuse of transfer procedures at the domestic level is the proactive attitude of Italy in transposing FD 2008/909/JHA. Despite the aim of social rehabilitation written in FD, the Italian executive and the legislature were guided by the openly declared purpose to reduce the number of inmates in Italian detention facilities. In particular, the Italian government made every possible effort to boost the transfer of Romanian prisoners, as they represent about 80% of EU prisoners and the third largest group of non-nationals after Moroccans and Albanians. In 2015, the Italian prison administration even carried out a comprehensive mapping of all the potential transferees, pushing for the start of the transfer procedure regardless of any consideration of social rehabilitation.

However, the reality of the implementation of FD 2008/947/JHA followed an opposite track: the EU act was implemented in 2016, five years after the expiry of the compulsory deadline and not a single initiative was taken to make it work. This consideration is even more striking if one takes into account that Romanians - by the end of 2017 – amounted to 70% of the overall number of EU nationals in probation measures (1009 out of 1424) in Italy. This inaction mirrors again the logic underlying the implementation of the EU pattern, where social rehabilitation goals are frustrated for the benefit of a prison-centered conception of criminal justice.

The attitude of the Italian government toward these FDs suggests that the major interest of Italy, a country with a serious problem of prison overcrowding and a reduced use of deportation, is to find a new way to get rid of inmates and not to contribute to their social rehabilitation as the Decision foresees.

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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) 

Ferraris, V. and Guidi, E. (2020). Get Rid of Them or Rehabilitate Them? The Ambiguity Underlying Framework Decisions 2008/909/JHA and 2008/947/JHA. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/01/get-rid-them-or [date]