Assessing the resilience of ‘social rehabilitation’ as a rationale for transfer: A commentary on the aims of Framework Decision 2008/909/JHA

This article provides an analysis of the Framework Decision 2008/909/JHA on the transfer of sentenced persons in the European Union (EU). Particular emphasis is placed on the provisions in the Framework Decision which makes direct or indirect reference to the aim of ‘social rehabilitation’. While this aim of punishment is referred to as the main rationale for transferring prisoners to another member state, it can be argued that the EU instrument fails to provide adequate safeguards against a potential misuse of the procedure. In particular, due to the increased automaticity of transfer proceedings, there is a risk that national authorities may not conduct a case-by-case assessment of the sentenced person’s situation. This sits at odds with the necessity of individualization underlying the rehabilitative ideal and may give rise to fundamental rights infringements. In the conclusion, a series of policy recommendations are put forward to increase the protection of the person’s interest to social rehabilitation.