A right to rehabilitation through transfer or a right to not be transferred? Identifying potential beneficiaries through nationality and residence. Issue 3 (September 2022)

• Record Type: Journal Article
• Authors: Vandennieuwenhuysen, Ellen
• Other Names: Martufi Adriano guest-editor.
• Is Part Of: New journal of European criminal law. Volume 13:Issue 3(2022)
• Page Start: 270
• Page End: 293
• Publication Date: 2022-09
• Subjects: Right to rehabilitation -- right to transfer -- importance of residence and EU-nationality -- mutual trust -- expulsions -- fundamental rights -- EU citizenship -- third country nationals -- Directive 2004/38/EC -- Framework Decision 2008/909/JHA -- Framework Decision 2008/947/JHA -- Framework Decision 2002/584/JHA -- ECtHR -- CJEU; Criminal law -- Europe -- Periodicals; Criminal law -- Europe -- Cases; 345.4
• DOI: 10.1177/20322844221122199
• Languages: English
• ISSNs: 2032-2844

Abstract

Within the EU, two Framework Decisions have been adopted to increase the chances of social rehabilitation of sentenced persons through the transfer of the enforcement of sentences to another Member State. The older Framework Decision on the European Arrest Warrant contains some mechanisms to strengthen the social rehabilitation of sentenced persons as well. First, this article examines who can benefit from these possibilities and highlights the importance of residence and EU nationality. It further explores whether these persons have an enforceable right to rehabilitation or a right to transfer for the purpose of rehabilitation. Even though this does not seem to be the case, they do have a right not to be transferred if the transfer does not facilitate rehabilitation. However, this right proves particularly difficult to enforce, especially given the possibility for states to expel foreigners. This paper claims that without further limitations on expulsions by states, or without giving more rights to sentenced persons under Framework Decision 2008/909/JHA, states might rather easily be able to circumvent the main objective of that Framework Decision.