Offenders' rehabilitation and the cross-border transfer of prisoners and persons subject to probation measures and alternative sanctions: a stress test for EU judicial cooperation in criminal matters

• Main Author: Stefano Montaldo
• Format: Article
• Language: Spanish
• Published: Instituto Brasileiro de Direito Processual Penal 2019-06-01
• Series: Revista Brasileira de Direito Processual Penal
• Subjects: reabilitação de condenados; confiança recíproca; transferências insternacionais; limites; direitos fundamentais.
• Online Access: http://www.ibraspp.com.br/revista/index.php/RBDPP/article/view/245

The article analyses the role of the notion of offenders' rehabilitation in EU judicial cooperation mechanisms, with a specific focus on cross-border transfers. Firstly, it provides a general overview of the approach of the EU legal order and of the stance of the European Convention on Human Rights on this concept. It is argued that offenders' rehabilitation is an emerging notion at supranational level, capable of imposing increasingly stringent duties on domestic law enforcement agencies. Secondly, it considers how rehabilitation objectives impact the normative decisions underpinning Framework Decision 2008/909/JHA on transfers of prisoners between Member States and Framework Decision 2008/947/JHA on the mutual recognition of probation measures and alternative sanctions. The article argues that offenders' rehabilitation is yet to find a clear role in the EU legal order, as demonstrated by the recent case law of the Court of Justice. In particular, the functioning of judicial cooperation mechanisms and the interpretative guidance provided by the Court confirm that this punishment aim locks swords with the full effectiveness of EU law and with the hidden will of the Member States to use cross-border transfers as a tool for controlling intra-EU mobility.