Guest post by Cristina Fernandez-Bessa and Valeria Ferraris. Cristina is a senior research fellow at the University of A Coruna (Spain). Her research interests include deportation, policing, deprivation of liberty, human rights and gender. Valeria is assistant professor of sociology of law and deviance at the Law Department of the University of Turin. Her main research topics are related to immigration control, international protection and corruption. This is the third post of Border Criminologies themed series on 'Transfers of Foreign National Prisoners/Probationers'.

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The freedom of movement and residence within the EU poses new challenges and dilemmas for criminal justice and prison systems accustomed to working mainly under their national judicial frameworks. The cross-border transfer of a sentenced person or a probationer to another member state with a view to serving abroad a judicial decision issued by a member state is one of them. These kinds of transfers involve procedures that go beyond the ordinary routines of legal practitioners, civil servants and judicial authorities, because they require the recognition and enforcement of the deprivation of liberty or probation measures issued by a judicial authority of another state and the presumption that the executing country is able to adequately guarantee respect for fundamental rights.

The distance between “law in the books” and “law in action” in the transfer of detainees and probationers is particularly significant. Based on fieldwork conducted within Repers and Trust & Action projects, we found that in spite of the common legal provisions of Framework Decisions (FDs) 2008/909/JHA and 2008/947/JHA, factors such as divergences in transposition, i.e. the process of incorporating EU directives into the national laws of EU countries, different national legal cultures, prison conditions and the social discrimination suffered by some communities of EU citizens living in other member states, entail very distinctive features that produce varied results in how this shared legal background is actually implemented.

According to official data, the number of transferees is much lower than one would expect in relation to the number of sentenced EU nationals, as also pointed out in the preceding post. For instance, in 2017, EU national prisoners numbered 3,728 in Spain and 2,189 in Italy, whilst only 100 EU nationals were transferred from Spain and 107 were returned to their home country from Italy. The underuse of these tools could be linked to two main categories of shortcomings: one related to national issues, i.e. how these EU Decisions are internally regulated and implemented in a specific state; the other connected to judicial cooperation and its materialization by judges and authorities of different countries. These factors intertwine closely, as some of the national shortcomings turn into obstacles to cooperation. As we argue in this post, the predominance of unilateral national agendas and the different national legal cultures of EU countries contribute to cement these apparently unsolvable obstacles.

As to the first category, the most significant national hurdles affecting the implementation of cross-border transfers of EU detainees and probationers are: the lack of knowledge and awareness of the FDs by the actors involved (e.g. judicial and law enforcement authorities, lawyers, prison staff), including the need for a more precise distribution of roles and tasks between national judicial authorities; the significant decentralisation of the competent authorities and the lack of communication between national authorities of different countries; the lack of knowledge on the relevant rules and detention conditions in other countries; and the limited involvement of prison authorities.

Among these concerns, the lack of knowledge of the tools available is often the primary source of obstacles and causes further shortcomings. Despite the transfer procedure being able to be requested by the sentenced person or the probationer, the majority of lawyers are not familiar with the relevant procedures and do not assist them in their path towards cross-border transfer. Those in prison and on probation are generally unaware of the possibility to allocate execution of their sentence elsewhere.  Unsurprisingly, the case file in Italy shows that the few probationers who managed to be transferred pursuant to FD 2008/947/JHA were assisted by a lawyer.

The competent authorities’ poor knowledge is often exacerbated by organizational problems. In some countries, such as Italy, this is due to difficulties in dealing with ordinary workload. Transfer procedures generally involve additional work for understaffed offices.

The degree of decentralisation of the authorities that take relevant decisions is a further issue. Even though the empowerment of judicial authorities at the territorial level is in line with the spirit of EU judicial cooperation mechanisms, the division of powers makes the issue of proper training and knowledge of the procedure crucial for guaranteeing smooth cooperation. The local courts’ lack of expertise results in recurring wasted efforts and in poor filling out of the certificates.

For instance, in the case of multiple sentences, the Romanian authorities require the submission of a certificate for each judicial decision. This exacerbates the issuing authorities’ workload and compels them to provide a summary of the certificates, aimed at clarifying the overall accumulation of punishments. It often happens that the authorities competent for issuing the certificates are not fully aware of the rules and practices of another country, and this results in the certificates being sent back and forth between the issuing and executing states. Another key example refers to FD 2008/947/JHA, where the match between the probation and alternative measures in force in one member state with those available abroad is a matter of daily uncertainty.

The second category of shortcomings identified above – namely obstacles to smooth cooperation per se – mainly calls into question the actual degree of mutual trust between judicial authorities and differences in their legal cultures. Some countries, such as The Netherlands, take a more pragmatic approach: the transfer procedures are conducted with minimum formalities and are not subject to appeal by the person concerned. In other states transfer procedures are lengthier, but provide more guarantees, as they involve the scrutiny of a court and the right to appeal a transfer decision, even when in some cases the FDs allow the transfer without the consent of the person concerned.

From this point of view, the transfer procedures replicate the recurring dilemma of judicial cooperation in criminal matters regarding the appropriate balance between effectiveness and rights. On the one hand, a high degree of pragmatism may affect the rights of the persons concerned; on the other hand, elements such as formalities and recurring communications and consultations between the national authorities can hamper the execution of the transfers even in cases where the sentenced person consents to the transfer itself. These practices entail the inconsistency that persons willing to serve a sentence or a probation measure in another country may not be transferred and those willing to remain may be. In any case, against the current context, it seems that the alleged facilitation of the social rehabilitation of the sentenced person or the application of suitable probation measures in case of offenders who do not live in the state of conviction is beyond the reach of EU member states.

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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) 

Fernandez-Bessa, C. and Ferraris, V. (2021). How EU Member States Deal with Cross-Border Transfers of Detainees and Probationers?. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/01/how-eu-member [date]