Judicial Cooperation, Transfer of Prisoners and Offenders’ Rehabilitation: No Fairy-tale Bliss. Comment on Ognyanov

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Table of Contents: I. Better late than never: the first case concerning the Council Framework Decision 2008/909/JHA on the transfer of prisoners in the European Union. – II. Facts of the case. – III. The notion of enforcement of a sentence and the division of competences between the issuing and executing States. – III.1. Which enforcement? The applicable law in the light of the division of competences between national authorities. – III.2. Mutual recognition and the role of the national authorities. – IV. No fairy-tale bliss: is this just a watered down version of mutual recognition, to the detriment of a common approach to offenders’ social rehabilitation? 

Abstract: This Insight analyses the first preliminary ruling (Court of Justice, judgment of 8 Novem- ber 2016, case C-554/14, Ognyanov [GC]) concerning a provision of the Council Framework Decision 2008/909/JHA on the cross-border transfer of prisoners in the EU. The Court of Justice clarifies the notion of enforcement of the sentence, for the purposes of the horizontal division of competences between the issuing State and executing authority. In this context, despite the quasi-automatic nature of judicial cooperation mechanisms, a prominent role is given to the issuing authority. In particular, the issuing State is entitled to assess unilaterally the prisoner’s chances of social rehabilitation abroad. It is contended that this prudent approach, albeit reasonably inspired by the well-established principle of territoriality of criminal law, is capable of undermining the effectiveness of the Council Framework Decision 2008/909. This approach also blocks a gradual emergence of a common European approach to offenders’ social rehabilitation, which is a key objective of judicial cooperation in criminal matters. A common attitude towards crime prevention through offenders’ rehabilitation could be the feeding ground favouring future evolution of cooperation in criminal matters, besides the current overarching focus on ex post crime repression.

Keywords: judicial cooperation in criminal matters – enforcement of a sentence – territoriality – penalty – more lenient national legislation – offenders’ rehabilitation.

European Papers, Vol. 2, 2017, No 2, European Forum, Insight of 16 July 2017, pp. 709-718
2499-8249 - doi: 10.15166/2499-8249/151

* Researcher of EU Law, University of Turin, stefano.montaldo@unito.it.

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