A right to rehabilitation through transfer or a right to not be transferred? Identifying potential beneficiaries through nationality and residence

Interpretation of the concepts regarding FD 2002/584/JHA

In Kozlowski, the Court needed to interpret Article 4(6) FD 2002/584/JHA. The European Commission had argued that the fact that the requested person is ‘staying’ in the executing Member State is a necessary but not sufficient condition for invoking the ground for optional non-execution of the European Arrest Warrant. ³⁹ The Court confirmed this, stating that ‘the term ‘staying’ cannot be interpreted in a broad way which would imply that the executing judicial authority could refuse to execute a European arrest warrant merely on the ground that the requested person is temporarily located on the territory of the executing Member State’. ⁴⁰ ‘Staying’ should be interpreted in a way complementing ‘resident’ ⁴¹ and both terms should be interpreted in light of the objective of the provision, namely ‘enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires’. ⁴² According to the Court, the concepts are subject to an autonomous and uniform interpretation within the EU. ⁴³ ‘Resident’ means that the person has established his actual place of residence there, and the person is ‘staying’ in a Member State when, following a stable period of presence in that state, he or she has acquired connections with that state which are of a similar degree to those resulting from residence. ⁴⁴ In order to determine whether there are such connections, it is necessary to make an overall assessment of various objective factors characterising the situation of that person, which include, in particular, the length, nature and conditions of his presence and the family and economic connections that he has with the executing Member State. ⁴⁵ Therefore, the mere fact that the stay was not uninterrupted or not legal ⁴⁶ , cannot lead to the conclusion that the person is not ‘staying’ in that Member State. However, they can be relevant in the overall assessment. ⁴⁷

By contrast, in Wolzenburg, the Court ruled that even though the length of time that a person has resided in the Member State cannot, in principle, have a conclusive effect because an overall assessment should be made when a Member State has implemented Article 4(6) of 2002/584/JHA without laying down specific conditions relating to its application, national law requiring residence for a continuous period of 5 years for nationals of other Member States in order to apply the ground of refusal does not violate EU-law. ⁴⁸ The Court based its reasoning, inter alia, on the fact that national legislation which limits the situations in which the executing authority may refuse to surrender a requested person reinforces the system of surrender to the advantage of an area of freedom, security and justice. ⁴⁹ In addition, it considered a condition of a continuous period of 5 years for nationals of other Member States to be able to ensure that the requested person is sufficiently integrated in the Member State. ⁵⁰ Therefore, this condition is in line with the purpose of the provision, which is increasing the requested person’s chances of reintegrating into society after expiration of the sentence. ⁵¹ Limiting the facultative ground of refusal to nationals only, however, does violate EU law. ⁵² Furthermore, states cannot make the application of the optional ground of refusal in addition to a condition as to the duration of residence in that State, subject to supplementary administrative requirements, such as possession of a residence permit of indefinite duration. ⁵³

Interestingly, in Lopes, the Court seemed to narrow down the interpretation of ‘resident’ and ‘staying’, as it required the national judge to examine all the relevant factors whether there are sufficient connections between the person and the executing Member State (in particular family, economic and social connections) to demonstrate that the person requested is integrated in that Member State in a degree comparable to that of a national. ⁵⁴ It is only after this integration assessment considering the person as covered by Article 4(6) that national authorities must assess whether there is a legitimate interest in refusing the execution of the European Arrest Warrant.

In any event, the interpretation given by the Court of the terms ‘resident’ and ‘staying’ seems only relevant in so far as the executing state has not limited the optional ground for non-execution in line with the rehabilitation purpose.

Interpretation of the concepts regarding FD 2008/909/JHA

The FD 2008/909/JHA does not use the words ‘resident’ or ‘staying’ but mentions ‘lives’. Recital 17 clarifies that this indicates the place to which that person is attached based on habitual residence and on elements such as family, social or professional ties. What habitual residence means, or how family, social or professional ties should be assessed is not explained in the Framework Decision. The Handbook refers to the case law of the Court in Kozlowski and Wolzenburg. ⁵⁵ However, it is not entirely clear whether living is to be equated with ‘resident’ or with ‘staying’ ⁵⁶ , even more so because the drafters of the Framework Decision could have used the same wording as in Article 4(6) FD 2002/584/JHA if they wanted the provisions to be interpreted in a uniform manner.

One might assume that the EU legislator deliberately chose the term 'lives' instead of ‘resident’ or ‘staying’, even though it is rather difficult to identify why. Possibly the term ‘staying’ was avoided to prevent ambiguity, as the term suggests that only a certain period of time during which the person should be located in that state is required, even though the CJEU has given a narrower interpretation of the term in the aforementioned judgments. The same might be true for the term ‘resident’, which seems to imply an administrative registration of residence, which is not necessary in order to be seen as someone who ‘lives’ in that certain Member State. ⁵⁷

Moreover, a formal registration of residence will probably not be sufficient to conclude that a person lives in the executing state, in view of recital 17. However, this question has already been put to the Court twice. In 2018, the Court was asked by way of a preliminary question to clarify whether the fact that the ‘merely formally recorded habitual residence in the executing State, regardless of whether the sentenced person has concrete ties in that State which could enhance his social rehabilitation’ is sufficient for the recognition and execution of a judgment. The Court did not have to answer this question since the application for recognition of the sentence had been withdrawn. ⁵⁸ When the Court was asked to answer a similar question, Advocate General Bobek argued that a formal registered address (whether temporary or permanent) was insufficient to consider that one resides in the executing state, because in recital 17, between ‘habitual residence’ and ‘family, social or professional ties', ‘and’ was used rather than ‘or’ which links them together, rather than making them alternatives to each other. ⁵⁹

Although this answer was sufficient to the question, the Advocate General took the liberty of examining what can be seen as sufficient. ⁶⁰ First of all, he observes that these concepts are not defined in the Framework Decision and must be given an autonomous and uniform interpretation. ⁶¹ On the basis of other instruments of European Union law, the Advocate General concludes that the emphasis must lie on the factual reality instead of on the merely declared residence. ⁶² He refers to the interpretation of the terms as established in Wolzenburg, Kozlowski, and Lopes, including the fact that an overall assessment should be made of several factors, none of which can have in itself a conclusive effect. He believes that a similar logic should apply, but does not explicitly state that ‘lives’ should be interpreted as ‘staying’ or as ‘resident’. However, these cases may have a considerable impact on the interpretation of the term ‘lives’ of FD 2008/909/JHA regarding the importance of the purpose of rehabilitation in the interpretation of the concept. Indeed, the same elements can be used to assess where the person 'lives' as those to assess whether a person is ‘staying’ in a certain Member State, even though the Advocate General emphasises the need to assess ‘lives’ by reference to ties of every nature which may be of benefit to the chances of rehabilitation.

According to the Advocate General, ‘habitual residence’ and ‘family, social or professional ties' are two sides of the same coin and cannot be separated, as they imply each other. ⁶³ The Advocate General, however, admits that these concepts do not mean exactly the same, as one can have habitual residence somewhere but not have many ties to the community or its members because one lives very isolated, and, on the other hand, one can live like an expat in different places and thus have numerous links with different Member States, due to work, family, cultural or linguistic ties, but not have a real habitual residence anywhere specific. ⁶⁴ The Advocate General fails to explain what the consequences would be for the assessment of residence in such situations. One can assume that in the former case, the state where the person lives is the state in which the person resides in an isolated manner. In the latter case, the state where the person has the most ties with should be seen as the state where he or she lives, if that would foster rehabilitation. This is in line with the view of the Advocate General as expressed further on in his opinion, and with the main objective of the Framework Decision.

Indeed, ‘habitual residence’ and the ‘existence of some ties’ are a proxy for attachment, which serve as a stepping-stone for determining the chances of social rehabilitation. Furthermore, the facts must always be assessed through the ‘lens of the objective of social rehabilitation’. First, the Advocate General mentions that family and social contacts are particularly useful in helping the released person to reconnect with society. In accordance with recital 9, linguistic, cultural, economic or other ties may also be considered in order to determine whether the person concerned has ties with a particular state. In addition, and very importantly, he argues that ties and residence should not be considered solely in light of the period immediately preceding the criminal period. Instead, ties established by the person concerned some time ago which may contribute to his rehabilitation and thus his ‘capacity to reconnect with the community’ after serving his or her sentence, should be taken into account. ⁶⁵ As a result, residence cannot be reduced to the residence at the time of the commitment of the crime, nor of the time of the issuing of the judgment, which considerably broadens the scope of possibility under Article 4(1)(a) FD 2008/909/JHA. Hence, the Advocate General creates the impression that residence in itself is not the most important factor to be assessed, but rather the ties, which may indeed be more important for re-integration after a prison sentence.

In addition, according to the Advocate General, the assessment of where the person 'lives' is not solely a matter for the issuing state. He argues that based on Article 9(1)(b), which holds a ground for non-recognition and non-enforcement if the criteria of Article 4(1) are not met, the executing authority may refuse to recognise and enforce the judgment if, in its view, the person concerned does not have family, social, professional or other ties with the executing state that would allow the sentence to be enforced in that state in a manner conducive to his or her social rehabilitation. ⁶⁶ This reasoning is commendable, since the state that is supposed to have the closest relationship with the person in question will indeed be in a good position to assess this. ⁶⁷

The Advocate General thus proposes a welcome, broad interpretation of the notion of 'lives' under Article 4(1)(a), whereby ties rather than (current) residence, are the primary factor to be determined and can be assessed by both states. The Court itself has not yet elaborated on the concept. It remains to be seen whether states apply this broad interpretation in practice.

Interpretation of the concepts regarding FD 2008/947/JHA

FD 2008/947/JHA does not include ‘resident’, ‘staying’, ‘lives’ or ‘habitual residence’. Instead, the person must be lawfully and ordinarily residing for the forwarding of the judgment without consent of the executing state. ‘Lawfully’ should probably be understood as residence in conformity with the national legislation on residence. In order to transfer the enforcement of the sentence to a state where a person has no right of residence, the authority of that state will have to give its consent. The addition of ‘lawfully’ might be the consequence of the absence of the nationality requirement, as a national can never reside illegally in its country of nationality. Furthermore, the sentenced person is not deprived of is or her liberty, but can move rather ‘freely’ in society, for which the person needs a right of residence, which is not the case for a stay in prison. ⁶⁸ Why the term ‘ordinarily’ is used or how it should be interpreted is however unclear, since its meaning is not clarified in the Framework Decision, nor by the Court. Although one can assume that ‘ordinarily’ residing might be interpreted in the same way as ‘staying’ under FD 2002/584/JHA, ‘living’ or especially ‘habitually residing’ under FD 2008/909/JHA, it remains a question why the EU legislator, if it indeed had this intention, did not use the same wording in FD 2008/909/JHA and FD 2008/947/JHA, both of which were adopted on the same day.

Conclusion regarding the potential subjects of the framework decisions

This analysis made it clear that any citizen, regardless of nationality and place of residence, can be subjected to the application of the Framework Decisions. ⁶⁹ However, elements such as having a certain EU nationality, the state of residence, or the state in which one is staying may be important for the possibility of states to refuse European Arrest Warrants or transits for the execution of custodial sentences, as well as for the possibility to ask for a guarantee of return of the person concerned when executing a European Arrest Warrant for the purpose of prosecution. Elements such as having a (certain) EU nationality, as well as the state where one lives, the existence of an expulsion order and the fact that one has fled or returned to a certain state, can have an influence on whether the forwarding of the judgment requires the consent of the executing state and/or the consent of the person concerned for FD 2008/909/JHA. For FD 2008/947/JHA, nationality is not relevant, but lawfully and ordinarily residing in the state to which the judgment will be forwarded ensures that the consent of that State is not required. Since the interpretation of the various terms does not appear to be straightforward, the question arises as to how the states apply these different provisions.

A right to rehabilitation for the potential subjects?

After resolving the question of who can serve their sentence in another state, this part will assess whether these subjects can be considered as beneficiaries who have a right to rehabilitation or a right to transfer for the purpose of rehabilitation.

Facilitating the rehabilitation of the sentenced person is the main goal of FD 2008/909/JHA. ⁷⁰ The forwarding of the judgment and the certificate requires that the authority of the issuing state ‘is satisfied that the enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person’. ⁷¹ The question arises, however, as to when the issuing authority can be considered to be satisfied and how the authority can know whether the transfer would facilitate rehabilitation.

The first critical point is that neither the Framework Decision, nor the Court have defined ‘facilitating social rehabilitation’. ⁷² Recital 9, however, stipulates that in the context of satisfying itself that the enforcement of the sentence by the executing state will serve the purpose of facilitating the social rehabilitation, states should consider various elements including family, linguistic, cultural, social, economic or other links that show attachment to the executing state.

On a more practical level, FD 2008/909/JHA provides some tools which can help states to make sure that the transfer would facilitate rehabilitation. However, states are not always obliged to use these different approaches. For example, in order to assess whether the transfer would facilitate rehabilitation, the issuing state can consult the executing state. ⁷³ The latter may inform the issuing state with a reasoned opinion that the transfer ‘would not serve the purpose of facilitating the social rehabilitation and successful reintegration of the sentenced person into society’. ⁷⁴ However, this consultation is only mandatory for the forwarding of the judgment in cases in which the executing state is not the state of nationality of the sentenced person, or if so, if it is not the one where the person lives or will be deported to. During this consultation, the authorities should take elements such as the duration of residence or other links to the executing state in consideration ⁷⁵ , but this negative reasoned opinion does not constitute a ground for refusal. ⁷⁶

The Framework Decision furthermore obliges the issuing states to always ask the opinion of the prisoner and this opinion should be taken into account. ⁷⁷ The issuing states can also ask for the consent of the prisoner. Again, this consent is only mandatory in several cases. The fact that the consent of the prisoner is not always needed, and that the negative opinion of the prisoner towards the transfer is not a ground for refusal ⁷⁸ , is remarkable given the Framework Decision’s goal to facilitate social rehabilitation, as ‘social rehabilitation inherently requires the engagement of the person involved’. ⁷⁹

The aforementioned elements are not the only critical issues that may not contribute to the objective of social rehabilitation. As already mentioned, even though the convicted person can request a transfer – as can the executing state – it is always the issuing state that decides on the forwarding. One can conclude from this analysis that no right to get transferred for the purpose of social rehabilitation under FD 2008/909/JHA exists.

Regarding FD 2008/947/JHA, while the aim is, inter alia, to enhance the prospects of the sentenced person’s reintegration into society ⁸⁰ , there is little to support this goal in the Framework Decision. States must not be satisfied that executing the decision will facilitate rehabilitation and are not obliged to forward the certificate if the sentenced person so wishes. The Framework Decision provides for the mere possibility of forwarding the decision to a state other than the one in which the sentenced person is lawfully and ordinarily residing on his request and with consent of the executing state, for example, if he wants to move there to work, follow a training or study or if he is family of a lawful and ordinary resident of that Member State. ⁸¹ Several states have made declarations regarding the conditions under which they may consent to such forwarding. ⁸² The only right that can be derived from the Framework Decision is that the supervision of the sentence in principle cannot be transferred without consent of the sentenced person. However, if the person has returned to the Member State where he or she lawfully and ordinarily resides, the consent of the sentenced person is assumed, which has been criticised in literature. ⁸³

Even if the aim of the FD 2002/584/JHA is not the rehabilitation of sentenced persons or persons to be tried, it contains a mechanism which has the objective to enable the executing authority to increase the requested person’s chances of reintegrating into society. ⁸⁴ This mechanism is, as already mentioned, the optional non-refusal ground to execute the European Arrest Warrant, if it has been issued for the execution of a custodial sentence, where the requested person is staying in, or is a national or a resident of the executing state and that state will execute the sentence. ⁸⁵ That same rehabilitation rationale lies behind the possibility of each Member State to refuse transit when the transit of a national or a resident is requested for the purpose of the execution of a custodial sentence. The same is true for the possibility to subject the transit or the execution of a European Arrest Warrant of a national or resident, when the warrant is issued for the purposes of prosecution, to the condition that the person is returned to the transit or executing state to serve the custodial sentence passed against him in the issuing state. ⁸⁶ However, these are only possibilities for the executing state or state of transit. Beside the right to be heard ⁸⁷ , no rights for sentenced persons or persons to be tried can be derived from them directly. ⁸⁸

As no right to rehabilitation or transfer for the purpose of rehabilitation can be derived from the Framework Decisions, the next section will address the question of whether the potential subjects have an (enforceable) right not to be transferred when the transfer would not facilitate rehabilitation.

An (enforceable) right to not to be transferred when transfer would not facilitate rehabilitation?

Regarding the wording and aims of the framework decisions

In literature, concerns have been raised regarding the possible misuse or instrumentalization of Framework Decision 2008/909/JHA for migration purposes ⁸⁹ , deterrence of (illegal) migrant crimes, reducing prison costs and diminishing prison overcrowding. ⁹⁰ In these cases, the transfer would not take place to enhance the chances of rehabilitation. In that context, it is important to examine whether a transfer that goes against the purpose of the Framework Decisions is prohibited and thus whether an (enforceable) right to not be transferred exists.

It is clear from Article 4(2) FD 2008/909/JHA that no transfer is allowed if it does not facilitate social rehabilitation, since the Framework Decision requires that issuing states need to be satisfied that the transfer will have this effect before forwarding the certificate. ⁹¹ However, while sentenced persons have a right to not be transferred if the transfer would not facilitate their rehabilitation, it seems difficult to enforce this right.

FD 2008/909/JHA has been criticised because it does not oblige states to provide a remedy for the failure to ask for the opinion and to take it into account. ⁹² One could add that it does not clarify either the consequences of failing to carry out the mandatory consultation. However, the sentenced person must have an effective remedy before an independent and impartial tribunal ⁹³ on the basis of Article 47 of the Charter, if no consultation is carried out where it is mandatory, or if no opinion is asked or taken into account, or if no consent is asked and given when required. ⁹⁴ Indeed, even if EU law does not mention specific judicial remedies applicable for violations, Member States should provide for effective, proportionate and dissuasive remedies. ⁹⁵ In light of the principles of equivalence and effectiveness, the remedy and procedures in which those claims are raised, should grant equal protection as those available against violations of national law. ⁹⁶

Importantly, however, there may still be cases in the application of FD 2008/909/JHA, where sentenced persons may consider that the transfer would not facilitate rehabilitation even if, whether after national judicial enforcement, the mandatory consultation has taken place and their opinion is asked and even ‘allegedly’ taken into account. This may be the case where consent is not required. However, this may also be possible in cases where the prisoner refuses to give the required consent, and where the issuing state subsequently withdraws the right of residence, so that consent is no longer required. In these cases too, the sentenced person should have a national remedy, again based on Article 47 of the Charter, allowing him or her to demonstrate that the transfer would not contribute to rehabilitation, since one can derive a right from the Framework Decision not to be transferred in such cases. The next section will however discuss the possibly limited benefit of a national remedy for the prisoner.

In any event, no similar observations can be made regarding FD 2002/584/JHA, as no right to not be transferred can be derived from it. Regarding FD 2008/947/JHA, one might argue that the sentenced person who has not consented with the execution in the other state to which he or she has been returned, has a right to object to the forwarding of the certificate should the execution in the other Member State not facilitate rehabilitation. While it is true that FD 2008/947/JHA only mentions rehabilitation of the sentenced person as one of the objectives ⁹⁷ , in line with the principle of loyalty ⁹⁸ , states must refrain from practices that run counter to the objectives of EU law, including regulations, directives and Framework Decisions, and national judges should ensure this.

The problem of the conditionality of the right to free movement: the possibility to expel

Even though, in particular FD 2008/909/JHA does not allow for transfers not facilitating rehabilitation and one should be able to have a remedy against this transfer, this remedy might have limited practical use. After all, states often have the possibility to expel foreigners. How this possibility makes it difficult to prevent transfers not facilitating rehabilitation will be clarified later. The next sections will first introduce the power of states to expel EU citizens, their TCN family members and other TCN’s.

EU citizens, their third-country national family members and their conditional right to free movement

Every EU citizen, that is, every national of an EU Member State, has EU citizenship, which is considered a fundamental status. ⁹⁹ Numerous rights are attached to EU citizenship ¹⁰⁰ , but the most important right is probably the right to free movement and residence. In order to benefit from these rights under objective conditions of freedom and dignity, Directive 2004/38/EC grants them as well, subject to certain conditions, to certain family members who are TCNs and who accompany or join the Union citizen. ¹⁰¹ Directive 2004/38/EC lays down the possibility to restrict these rights on grounds of public policy and public security, and describes the conditions under which this is possible. In practice, these restrictions are often expulsions, to which an exclusion order or entry ban can be added, which prohibits the foreigner from entering the territory of the issuing state for the duration of that order or ban. These restrictions need to be proportionate and based exclusively on the personal conduct of the individual. The latter should represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. However, criminal convictions cannot in themselves constitute grounds for taking expulsion decisions. ¹⁰² When taking such decisions, states have to take account of considerations concerning the situation of the individual and his ties with the host Member State and the country of origin. ¹⁰³ Furthermore, the Directive sets thresholds which provide different categories of EU-citizens and their TCN family members with a higher level of protection against expulsions. ¹⁰⁴ If they have the right of permanent residence in the host Member State, they can only be expelled if there are serious grounds of public policy or public security. ¹⁰⁵ Imperative grounds of public security should exist in order to expel EU-citizens if they have resided in the host Member State for the previous 10 years or if they are minors (except if the expulsion is necessary for the best interests of the child). ¹⁰⁶

How exactly these different concepts are to be interpreted, and how the different thresholds are to be assessed, as well as the circumstances of each individual case, remains rather vague, and is primarily a matter for the national judge to assess. Nonetheless, the Court has clarified that the more integrated a Union citizen or his family members are in a Member State, the greater the protection against expulsion they enjoy. ¹⁰⁷ Furthermore, it ruled that time spent in prison may be taken into consideration to conclude that the integrating links with the host Member State have been broken, which allows that State to not grant the higher protection of Article 28(3) Directive 2004/38/EC against expulsion. ¹⁰⁸ It is settled case law that a threat to the functioning of the institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security. ¹⁰⁹ This seems to be a high threshold, but in Tsakouridis, the Court clarified that organised drug trafficking can also constitute a threat to public security. ¹¹⁰ In P.I., the Court held that the criminal offences listed in Article 83(1), second subparagraph, TFEU can fall within the scope of imperative grounds of public security. ¹¹¹ This provision refers to terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.

Hence, and especially for expulsions on ‘ordinary’ public policy grounds, it seems quite easy for a state to expel an EU citizen once the expulsion is duly reasoned in accordance with the requirements of Directive 2004/38/EC. In practice, expulsions of EU citizens combined with an entry ban, in particular after criminal convictions, are far from uncommon. ¹¹²

The conditional right to reside and the free movement of third-country nationals

Third-country nationals, other than TCN family members of EU citizens, may under certain conditions also acquire a right of residence in EU Member States on the basis of EU law. Again, this right can be seen as a conditional right, which can be lost as soon as one is deemed to be a danger to public policy. ¹¹³ This danger to public policy does, however, not have to be assessed in the same way as required for by Directive 2004/38/EC, especially when the directive concerned does not explicitly require the threat to be genuine, present and sufficiently serious ¹¹⁴ , or to affect a fundamental interest of society. ¹¹⁵ A potential threat might be sufficient regarding the Students and Researchers Directive and the Seasonal Workers Directive. ¹¹⁶ As regards the Family Reunification Directive, the mere existence of a criminal conviction may suffice if the offence is so serious or of such a nature that it is necessary to exclude this foreigner from the territory of the Member State. ¹¹⁷ However, states have to take several elements into account such as the duration of residence in the territory, the person’s family ties, and ties with the country of origin. ¹¹⁸ States have to consider similar elements when expelling long-term residents ¹¹⁹ , which are TCNs who applied for and have obtained this status because they have resided legally and continuously for 5 years in that same Member State. ¹²⁰ They can, however, only be expelled if they constitute an actual and sufficiently serious threat to public policy or public security. ¹²¹ Lastly, persons who have never resided lawfully, because they have not been able to obtain a right of residence by any means, or have never tried to do so, can also be expelled. In general, it is therefore even easier for states to expel third-country nationals, except for long-term residents, than it is to expel Union citizens. ¹²²

Possible circumvention of transfer requirement to facilitate rehabilitation by expulsion orders?

The possibility of withdrawing the right of residence of prisoners is by no means purely theoretical, since they can often be regarded as a sufficient threat to public policy to justify expulsion. ¹²³ This power to expel and the power to forward judgments and transfer sentenced persons may, however, be combined and might result in compromising the main objective of FD 2008/909/JHA, which is to foster social rehabilitation.

The first clearly visible entanglement between expulsions and transfers is the possibility of transferring the person who is to be deported, without his consent, to his country of origin or to another country. ¹²⁴ A somewhat less obvious connection is the fact that the state that, for any reason ¹²⁵ , would like to transfer the person who does not consent even though this is required for by the Framework Decision, can revoke the right of residence of that person and make a transfer possible on the basis of Article 4(1)(b), thus without consent of the person, and without consent of the executing state if it is the state of nationality. The issuing state can adopt this same strategy if the executing state does not consent to the forwarding of the jugdment where required, or if it believes that no consent of the person is required, because in its opinion, the sentenced person is a national of and lives in the executing state, but where the executing state or the sentenced person does not agree with this. This strategy is even possible when the person is of the opinion that the transfer would not facilitate rehabilitation (because for example he or she does not want to live anymore in the executing state) and introduces a national remedy in order to prevent the transfer from happening. ¹²⁶

In these cases, states might be able to circumvent the requirement for transfers to increase the chances of rehabilitation. Of course, sentenced persons can introduce a complaint in a national procedure if they are of the opinion that the transfer would not facilitate their social rehabilitation, even in cases where their residence right is withdrawn during the execution of the prison sentence, and in cases where an expulsion order has already been issued. However, this complaint might be unlikely to succeed. Indeed, where does the rehabilitation lie if no right of residence exists in the issuing state? Probably not (anymore) in the issuing state, but rather in the state where the person has a right of residence. This is especially true for short-staying EU citizens, or TCNs who never had a right of residence, who do not know the language and who have not established real ties.

However, long-term foreign residents may know the language, enabling them to receive therapy and to be more likely considered for work in prison. Furthermore, they may have family in the issuing state who can come visit them. These are exactly elements that can facilitate social rehabilitation, even if they eventually must leave the issuing state. This is all the more true when the person does not know the language of the executing state and has no family there. Therefore, an expulsion does not automatically lead to increased chances of rehabilitation in the state to which the person is to be deported. Indeed, even if the person has received an expulsion order and the forwarding of the judgment will be done under Article 4(1)(b), states must first ensure that the transfer will promote rehabilitation, without automatically assuming this effect. However, in practice, states will probably often assume higher chances for rehabilitation in the state to which the person will be deported and where he or she has a right of residence, since the person has no (legal) future in the issuing state. In these cases, invoking human rights might be valuable, as clarified in the following section.

Regarding the forwarding of the judgment and the certificate concerning probation measures and alternative sanctions, the withdrawal of residence rights by the issuing state is not advantageous for the issuing state as the forwarding requires the consent (or the return) of the sentenced person. The withdrawal will only result in an obligation for the person to leave the country after serving his sentence, or in a deportation during or after the sentence. The withdrawal of residence rights is also not relevant for the execution of a European Arrest Warrant, as the possibility to refuse transit or execution of the European Arrest Warrant, or the conditional transit or surrender is optional and never mandatory. ¹²⁷

Transfer at odds with rehabilitation, fundamental rights to the rescue?

As argued in the previous section, states must always consider whether the transfer facilitates rehabilitation, including in the event where the transfer is based on an expulsion order. Although states will presumably automatically assume that a transfer facilitates rehabilitation in that case, their actions must nevertheless be in accordance with fundamental human rights. This section will examine to what extent invoking human rights could be a remedy for persons subjected to application of the Framework Decisions in this situation.

Deportations, extraditions and transfers should be in conformity with Articles 8 and 3 ECHR, which might reduce the possibilities of issuing states. ¹²⁸ Article 8 ECHR guarantees the right to respect for private and family life. This right is not absolute. If the interference is in accordance with the law, pursues a legitimate aim and is necessary in a democratic society (meaning proportionate to that legitimate aim), there will be no violation of Article 8. According to the ECtHR, prevention of disorder and crime is a legitimate purpose of extraditions and expulsions. ¹²⁹

In Boultif and Üner, the ECtHR established various criteria that states must take into account when assessing whether or not the expulsion of an offender would be an unjustified interference, such as the nature and seriousness of the offence; the length of the applicant’s stay; the ties with the host country and the country of destination, the time elapsed since the offence was committed and the applicant’s conduct during that period; the nationalities of the various persons concerned; the applicant’s family situation, the consequences for the family, and the best interests of the children. ¹³⁰ Several other elements can be of importance, such as the duration of the entry ban, or medical aspects. ¹³¹ Again, the justification of the expulsion decision by the national authorities will be very important. According to the ECtHR, where the domestic courts have carefully examined all the facts, and adequately balanced the applicant’s interests against the public interest, the ECtHR should not substitute its own assessment of the merits and the proportionality test, for that of the national authorities, except where there are strong reasons for doing so. ¹³²

This particular assessment is not required in the case of extraditions. ¹³³ In those cases, the applicant’s private or family life will only under exceptional circumstances outweigh the legitimate purpose of the extradition. ¹³⁴ However, the Court emphasised in these cases that the extradited person faced trial on charges of serious offences ¹³⁵ , and pointed at the interest of the state to comply with the request of the other state ¹³⁶ . The Court did not yet have to rule on a possible violation of Article 8 ECHR regarding a transfer pursuant to FD 2008/909/JHA. Possibly, the Court will not require exceptional circumstances in those cases, especially when it is not the executing state that requests a transfer, but where the issuing state acts on its own initiative. This is because in the case of transfers in application of FD 2008/909/JHA, the persons concerned are already convicted and often no risk of impunity exits.

Moreover, where the issuing state acts on its own initiative, the transfer without consent of the prisoner might be seen as an expulsion decision and thus as a restriction to the right to free movement. Indeed, if the transfer takes place pursuant Article 4(1)(b) FD 2008/909/JHA, the sentenced person has no right of residence anymore based on that expulsion decision. If the transfer takes place pursuant Article 4(1)(a), the sentenced person has in theory still a residence right but can only use it when he or she is released. Thus, in any case, the sentenced person has to wait, just as with an entry ban, until he or she can return to the territory of the issuing state. In addition, if the duration of imprisonment in the foreign prison exceeds 6 months, it could constitute an interruption of the stay that is required to obtain a permanent right of residence. ¹³⁷ Just like during an entry ban, one cannot obtain a right of residence. Moreover, if the stay in the foreign prison exceeds 2 years, it could result in the loss of acquired permanent residence rights ¹³⁸ , just as in the case of an expulsion. Therefore, these expulsions should be in conformity with the requirements of Directive 2004/38/EC if it concerns an EU-citizen or a TCN family member, and with the case law of the ECtHR regarding expulsions. As a result, the person’s interest ¹³⁹ in not being deported or transferred might outweigh the interest of the state, given the personal, social, or economic ties with the issuing state, the family living in that state, and maybe even given his prospects of rehabilitation.

Indeed, in the assessment of applications on the basis of Articles 8 and 3 ECHR, the Court has emphasised that states must take account of rehabilitation and reintegration in designing their penal policy. ¹⁴⁰ States must offer rehabilitation possibilities to life prisoners for them to really have the possibility of being released. ¹⁴¹ In addition, rehabilitation and reintegration are important elements in the proportionality test of Article 8 ECHR, when, for example, complaints about visiting arrangements are raised. ¹⁴² Furthermore, systematically poor detention conditions in the executing state can constitute inhuman or degrading treatment which may reinforce the detainee’s detachment from society and increase the risk of reoffending, hence compromising the rehabilitation ¹⁴³ , and can prevent the transfer or surrender under Article 3 ECHR ¹⁴⁴ . So far, the Court has not yet recognised an absolute right to rehabilitation in the Convention, and it has traditionally linked the obligation to provide rehabilitation possibilities to persons sentenced to life imprisonment or to indefinite detention. However, one could deduce from Murray/the Netherlands that states must strive for the rehabilitation of each convicted person. ¹⁴⁵ It is not yet clear whether and how the ECtHR will in future give more weight and substance to the obligation of states to pursue the rehabilitation of convicts and what the consequences of this could be for transfer decisions. In any event, the situation will still have to reach a minimum threshold of seriousness for Article 3 to apply or be disproportionate within the meaning of Article 8 ECHR.

Nonetheless, this analysis demonstrates that fundamental rights may protect sentenced persons in cases of transfer that do not facilitate rehabilitation and/or involve expulsion.

Concluding remarks

In order to have a better understanding of the functioning of the Framework Decisions this article has identified the possible subjects for their different application cases and it has highlighted the importance of nationality and residence under the various Framework Decisions. The concept of ‘residence’ needed to be examined more closely, as its interpretation cannot be simply equated with that of ‘habitual residence’ outside EU criminal law, given the underlying objectives of the Framework Decisions. In addition, the Framework Decisions include different related terms, with very similar, but not identical content, given the specific nature of the Framework Decisions and the possible situations in which they are to be applied.

The reason that the literature is rather silent on third country nationals might be due to the fact that EU nationality is a significant factor allowing for a quasi-automatic transfer under FD 2008/909/JHA, which is a transfer for which no prior consent of the sentenced person nor of the executing state is required. However, in accordance with Framework Decisions 2008/909/JHA and 2008/947/JHA, they can also benefit from transfers. The question arises whether in practice the same assessment is carried out for them as for EU citizens, and whether they have equal chances to serve their sentences in the Member State with which they have the closest links, both with respect to FD 2008/909/JHA and FD 2008/947/JHA, and with respect to the application of Articles 4(6), 5(3), and 25(1) FD 2002/584/JHA. In addition, given the ambiguity of the concept of residence and related terms, questions arise as to their implementation in practice. When is a person considered to live in another state, or to reside there ordinarily and lawfully by the competent authorities?

The analysis has furthermore shown that potential subjects can hardly be considered as real beneficiaries of the Framework Decisions. Indeed, a right to rehabilitation or a right to transfer for the purpose of rehabilitation cannot be inferred for the potential subjects of the different Framework Decisions. By contrast, a transfer that does not facilitate rehabilitation seems to be prohibited, in particular under FD 2008/909/JHA, but difficult to enforce for the sentenced person. Even national procedures in which this right not to be transferred can be enforced do not seem to be able to provide a lasting solution for these prisoners, as Member States might circumvent this by withdrawing the residence rights of sentenced persons, given the conditionality of the right of freedom of movement and of the right to reside. In those cases, states might argue that the transfer facilitates their rehabilitation. However, states are limited in their actions by fundamental human rights. In particular, Articles 3 and 8 ECHR are relevant to prevent decisions to expel or to transfer prisoners. Not facilitating rehabilitation as such, however, may not be enough to prevent a transfer in the current state of the case law of the ECtHR. In this respect, the EU-principle of loyal cooperation might be of relevance, as it obliges states to strive towards the objectives of the Framework Decision, thus prohibiting them from acting against its purpose. But even then, withdrawing the right of residence remains one of their prerogatives. Hence, it seems that, as things currently stand, even if one could argue that the risk of abuse is at the moment rather limited, given the limited application of the Framework Decision compared to expulsions, and the difficulties states encounter in these transfer procedures, prisoners will only be fully protected from abusive transfers when the CJEU becomes stricter on expulsions. Another possibility to protect prisoners could be to give them substantial rights and to give greater weight to their consent, through amendments of the Framework Decision or through the case law of the CJEU. Ultimately, such changes may only strengthen the ultimate objective of the Framework Decision.