the transfer of sentenced persons in europe: much ado about reintegration

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Punishment & Society

DOI: 10.1177/1462474508098135 2009; 11; 111 Punishment Society

Eveline De Wree, Tom Vander Beken and Gert Vermeulen reintegration

The transfer of sentenced persons in Europe: Much ado about

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The transfer of sentencedpersons in EuropeMuch ado about reintegration

EVELINE DE WREE, TOM VANDER BEKEN AND GERT VERMEULENGhent University, Belguim

AbstractIn recent years new instruments have been developed in Europe that allow sentencedpersons to be transferred to their country of nationality/origin or permanent residence,where the sentence is then carried out. The most commonly referred to ratio legis forthese regulations is the reintegration or rehabilitation of offenders. But is the optimiz-ation of offender reintegration really the objective and the result of these transfers?

Reintegration features in many theories on the goals of punishment, and sinceMartinson proclaimed in the 1970s that ‘Nothing Works’ a steady flow of publicationshas demonstrated that there are interventions that can reintegrate offenders successfully.The theoretical and empirical framework of rehabilitation is well developed, and it istherefore possible to explore which components of reintegration feature in regulationssurrounding the transfer of prisoners. Rehabilitation can be divided in a number ofcomponents: orientation towards change, room for subjectivity in decisions on thelength and type of sanction, the subsidiarity of the prison sentence, and attention tosocietal bonds. A critical evaluation of the intended goals of the transfer instruments interms of whether they are reflected in the policies’ implementation and application findsthat some of these components appear to be present in the regulations, to some extent,but others are completely absent. Therefore the actual impact of transfer regulations maynot be what the legislators intended.

Key WordsCouncil of Europe • European Union International execution of sentences • reintegration • transfer of sentenced persons

INTRODUCTIONIn the 1970s European countries began developing instruments that allowed sentencedpersons to be transferred to their country of nationality/origin or permanent residence,where the sentence is then carried out. The explanatory reports, preambles and contents

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DOI: 10.1177/1462474508098135



of the conventions and other instruments consistently refer to the rehabilitation of anoffender as an important objective of such transfers. Allowing offenders to serve theirsentence close to home was considered a significant instrument in improving the re-integration of offenders. Following this logic, the international execution of sentencescould potentially be an effective tool for stimulating reintegration, but is it?

Reintegration features in many theories on the goals of punishment, and sinceMartinson proclaimed in the 1970s that ‘Nothing Works’ a steady flow of publicationshas demonstrated that certain interventions can successfully reintegrate offenders. Thetheoretical and empirical framework of rehabilitation is therefore well developed. In thisarticle we analyse conventions and other instruments for the international execution ofsentences in detail, and test them against the characteristics of the rehabilitation perspec-tive to explore which components of reintegration they include.

We use the terms ‘rehabilitation’ and ‘reintegration’ interchangeably, although ofcourse there are differences between the two, both in the contexts in which they areused and in the connotations they evoke. Rehabilitation has historically been used torefer to a process of change, and is more often linked to psychosocial processes, whereasthe term reintegration has increased in importance in recent decades and it is consideredmore neutral, referring to the re-entry of an offender into society. Rehabilitation, in theframework of the transfer of sentenced persons, is the term that has historically beenused in international transfer conventions, as the first of these were drafted severaldecades ago, and the meaning attached to it in these conventions actually correspondsmore closely to the term reintegration.

THE INTERNATIONAL EXECUTION OF SENTENCES IN EUROPESeveral instruments allow for the transfer of sentenced persons in Europe. The Councilof Europe1 (CoE) created its first initiatives for the international execution of sanctionsin the 1960s with the European Convention on the Supervision of ConditionallySentenced or Conditionally Released Offenders (30 November 1964), which wasratified by 19 countries. This convention allows for conditionally sentenced or releasedoffenders to be transferred, so that they can serve their sentence or other sanction intheir home country.

The second relevant convention is the European Convention on the InternationalValidity of Criminal Judgments (28 May 1970), also ratified by 19 member states. Thisdeals with the recognition of criminal judgments and applies to sanctions involvingdeprivation of liberty, fines or confiscations, and disqualifications. On the basis of thistreaty one member state can ask another to execute a judgment.

Lastly, the Convention on the Transfer of Sentenced Persons (of 21 March 1983) wasratified by 61 countries, including all member states of the European Union and non-member states such as Canada and the United States (Vermeulen, 2006). This con-vention is currently the most important instrument for the transfer of sentencedpersons, for any sentences involving deprivation of liberty. This convention wascomplemented with an additional protocol in 1997 that regulates transfer in two specificcircumstances: (1) where the offender has fled from the sentencing state to their homecountry and (2) where the offender is subject to an expulsion or deportation order.Thirty-one countries ratified this protocol.

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Regulations on the transfer of prisoners have also been adopted by the EuropeanUnion.2 In part these regulations run parallel with the CoE conventions. However,supplementary to the Council of Europe Convention of 1983, EU member states ratifiedthe Agreement on the Application between the Member States of the EuropeanCommunities of the Council of Europe Convention on the Transfer of Sentenced Persons(25 May 1987). Following this agreement EU member states equate ‘persons who havea permanent residence in a country’ with nationals of that country in the application ofthe 1983 Council of Europe convention. In addition, the Schengen Execution Agree-ment of 1990 complements the 1983 Convention on the Transfer of Sentenced Personswhere a sentenced person has fled to their home country (cf. Protocol 1997).

These CoE conventions allow member states to refuse or convert another country’sjudicial decision. However, the EU wanted to go further than is possible on the CoElevel, to strengthen and facilitate the mutual recognition of judicial decisions in criminalmatters (Vermeulen, 2006). The Framework Decision on the European Arrest Warrant(EAW) is one of the first important instruments in this regard. EAWs can be issued bya member state requiring the arrest and surrender of an individual so that a person canbe prosecuted or a sentence can be executed. Normally, member states have to complywith every EAW issued.

Related to the EAW, two types of transfer of sentenced persons (nationals or resi-dents of the executing state) are possible. First, a country can make its compliance withthe arrest warrant dependent upon the condition that the national or resident will betransferred after punishment (art. 5). Second, if a state, for example Belgium, refusesto comply with an EAW that has been issued to a Belgian national in another EUmember state, the Belgian authorities are obliged to execute the sentence imposed (autdedere, aut exequi).

Importantly, on 24 January 2005 Austria, Finland and Sweden submitted a proposalfor a new EU Framework Decision3 concerning the transfer of sentenced persons. Underthis Framework Decision, the consent of the sentenced person to the transfer will notbe required when the individual is transferred to their home country. In particular, theconsent of the sentenced person is not required when: (1) the person is a national ofthe executing state and also lives there; (2) the person is to be deported to the execut-ing state on completion of their sentence; and (3) the person has fled or otherwisereturned there in response to the criminal proceedings.4 Moreover, an EU member statewill have a duty to recognize and enforce judgments that other member states haveimposed on its nationals, provided that offenders live permanently in the county theyare a national of, or that they will be deported to it after the execution of the sentence.The Framework Decision deals with custodial sentences and measures involving depri-vation of liberty. It aims to extend the co-operation that exists on the CoE level andwill replace the current CoE system in the transfer of sentenced persons among EUmember states. The Justice and Home Affairs (JHA) Council has already reached anagreement on the text of this Framework Decision.5

Alongside this, a Council Framework Decision on the application of the principle ofmutual recognition to judgments and probation decisions with a view to the super-vision of probation measures and alternative sanctions has been agreed upon.6 ThisFramework Decision allows for the recognition of judgments and decisions concerningsuspended, conditional and alternative sentences, and conditional release in the case of

DE WREE ET AL. The transfer of sentenced persons in Europe



a custodial sentence or measures involving deprivation of liberty. Where a sentencedperson has returned or wants to return to the state where he or she is lawfully andordinarily residing, these judgments may be forwarded to the member state. On therequest of the sentenced person, the judgment can also be forwarded to another state,but this is on the condition that this latter authority has consented to such forwarding.Unless (formal) grounds for refusal exist, member states will have to recognize andenforce the judgment. This Framework Decision will replace the provisions of theEuropean Convention on the supervision of conditionally sentenced or conditionallyreleased offenders, in relations between the member states.

ESSENTIAL CHARACTERISTICS OF REINTEGRATION: THEORY AND RESEARCH COMBINEDAs has been said, the rehabilitation of offenders is mentioned in every internationalinstrument that deals with the transfer of sentenced persons. However, rehabilitation isnot a blank canvas – theory and research on the reintegration of an offender form aconsistent framework within which its meaning and content have been elaborated.

Theories on the objectives of punishment approach it from three perspectives. Thefirst sees punishment as retribution; the offender is being punished for the violationof a norm (Cavadino and Dignan, 2002). The retributive sanction is offence-centred,and punishment has an inherent moral value, rather than attempting prevention. Thesecond perspective sees punishment as an instrument to achieve rehabilitation or deterrence. Punishment aims to achieve specific (inhibiting recidivism of the individ-ual offender) or general (deterrence) prevention. The purpose of the sentence is central– punishment is meant to have a desired effect in the future. This perspective isoffender-centred, because more information is needed concerning an offender and thepossible effects punishment may have on them. The third perspective is a hybrid ofthe first two (Raynor, 1997); the sentence should have an effect in the future, but ithas to be restricted by the proportionality of the retribution. In the second and thirdperspectives, the rehabilitation of an offender is of central importance, and a concernwith the future that characterizes rehabilitation is incorporated into the sanction(Raynor, 1997).

The primordial objective of rehabilitation is crime prevention. Punishment shouldinfluence the personality or the conduct of offenders in such a way that it becomes lessprobable that they will commit crimes in the future (Duff, 2001). An orientation towardschange has always been central to theories involving rehabilitation, and has beendeveloped over the years. At first rehabilitation was seen as a psychological transform-ation that an offender had to experience during a prison sentence. Later, attention wascentred on growing therapeutic approaches, which postulated that offenders had to be‘cured’. And subsequently, crime was no longer seen as an individual pathology, but asa product of learned behaviour, and rehabilitation was thought to compensate for anindividual’s faulty socialization.

The most recent evolution in thinking centres on offenders’ rights, and emphasizestheir right to education and assistance, and to detention in accommodation of astandard that creates a physical or mental environment compatible with social re-integration (Rotman, 1994). In the sentencing phase there should also be room for




subjectivity in decisions on the length and type of sanction.7 The length and type ofsanction should – as far as possible – be adapted to the specific causes of a crime, andto help an individual to refrain from committing crimes in future (Rotman, 1994).From a rehabilitation perspective, the subsidiarity of the prison sentence is vital, becausea prison sentence is considered to be counterproductive (apart from exceptional cases)and a way of reinforcing criminal dispositions rather than inhibiting them. Priorityshould instead be given to alternative sanctions and measures (Duff and Garland, 1994).The rehabilitation perspective presumes that it is possible to examine the individualcauses of crime and incite positive changes by using appropriate interventions (Raineand Willson, 1997). Future criminal behaviour is influenced by factors related to thecognition of offenders on the one hand, and offenders’ circumstances on the other(Maguire and Raynor, 2006). The chosen interventions when focusing on rehabili-tation are, therefore, treatment, assistance and the stimulation of societal bonds.

Using a rehabilitation perspective thus implies that the criminal justice system opensdoors to treatment and assistance, in order to diminish the risk of recidivism (Rotman,1994). Individual treatment and assistance programmes, targeting addiction or psycho-logical problems, attempt to increase motivation or readiness to change. American,Canadian and European authors have found that treatment programmes succeeded inlowering recidivism rates when they targeted criminogenic factors (Bernfeld et al.,2001). The most effective individual treatment programmes were those that targeteddynamic factors directly related to offending, such as social attitudes, problem solvingcompetences and drug misuse. High-risk offenders benefited the most from suchprogrammes. Interventions in the community had better results than those in prison,but the most important factor was that the intensity and length of the treatment mustbe adapted to the needs and risk profile of an offender. Treatment in prison thereforenecessitates making diverse treatment options available, in order to take into accountthe diversity of the criminals’ offender profiles (Bourgon and Armstrong, 2005).

Finally, the societal bonds of offenders must be established, maintained or restored inorder to increase their chances of reintegration. Societal bonds are an important aspectof rehabilitation; overcoming social problems is generally insufficient in itself forensuring an individual will stop offending, but it is a necessary condition (Maguire andRaynor, 2006). Hirschi considered societal bonds to be the most important prevent-ative force against offending. Subsequent effect studies confirmed that the absence ofprosocial societal bonds is related to offending (MacKenzie, 2002). Having a partner(or, more broadly, good family relationships) and being in employment both bringabout a reduction in criminal behaviour (Hepburn and Griffin, 2004). It can be diffi-cult for offenders to build strong social ties, but when such bonds have been establishedthe chances that their life course will change drastically are increased, and positivechanges are initiated (De Li and Layton MacKenzie, 2003). Social ties, particularlyemployment and relations with family, should therefore be given sufficient attentionduring and after punishment (McNeill, 2006). Judicial alternative sanctions are anobvious way in which societal bonds can be preserved, but these issues should also beincorporated into prison sentences (or post-release interventions).8 See Figure 1.




THE INTERNATIONAL EXECUTION OF SENTENCES ANDREHABILITATIONConventions on the international execution of sentences were first established in the1970s. Such initiatives were first taken by the Council of Europe, and later by theEuropean Union. They were influenced in part by the concept of reintegration. We havediscussed the way in which the rehabilitation perspective has been moulded by theoryand research. But to what extent can the international transfer of sentenced personsimprove the reintegration of offenders? In what follows, we will evaluate whether the constituent components of reintegration (orientation towards change, room forsubjectivity in decisions on the length and type of sanction, the subsidiarity of the prisonsentence, access to treatment and assistance and attention to societal bonds) are presentin transfer regulations.

Is the orientation towards change present in transfer regulations?In principle, the action of transferring a sentenced person is forward-looking, since itsobjective is to transfer the offender to the society he will return to after punishment.The transfer means the reintegration of an offender is immediately progressed duringpunishment. Where an alternative sanction has been handed down, under the Super-vision Convention, offenders will already be serving their sentence in the community;in the case of imprisonment, for example, under the Transfer Convention offendersserve their prison sentence in their home country, reducing their objective and subjec-tive experience of distance from home.

Based on the Supervision Convention, enforcement of the sentence can be carriedout by the state in whose territory offenders establish their ordinary residence. Also inthe Framework Decision regarding supervision, it is possible to forward the judgmentto the state where the sentenced person lawfully and ordinarily resides (if the offenderhas returned or wants to return to it).


116

Rehabilitationin sentencing

Rehabilitationin punishment

Orientationtowards change

Subsidiarityprison

Treatment andassistance

Points of attentionduring and after punishment

Societal bonds

Possibilities

Motivation

Intended purpose

Room forsubjectivity

Access toservices

Employmentand education

Family andsocial relations

Accommodationand housing

•Figure 1 Synthesis: rehabilitation in the criminal justice system



The CoE Transfer Convention of 1983 only allows the transfer of prisoners to theirhome country. Although the text of the convention mentions the term ‘national’, thecountries that ratified this convention were left with the freedom to define this termfor the purposes of the convention. The EU member states reached an agreement todefine nationals as those with a permanent residence in the country. Also in the newFramework Decision, transfer is restricted to the state of nationality in which sentencedpersons live or to which they will be deported once they are released from the enforce-ment of the sentence. However, in article 4(c) a discretionary provision has beenincluded allowing the transfer to the country in which a sentenced person lives and hasbeen legally residing continuously for at least five years and will retain a permanent rightof residence. In these cases, the consent of the executing state is required.

However, the recent proposals (the Framework Decision and the Second AdditionalProtocol) leave us with the impression that the focus has shifted from the perspectiveof the executing state to that of the sentencing state. The inspiration for the first transfertreaties stemmed from a humanitarian concern for compatriots who were incarceratedin another country (Orie, 1995). Foreign prisoners experience problems relating toculture, communication, access to services and so on, and these problems are mostpronounced when cultural and language differences are the strongest, and the barriersto communicating with family and friends the severest (Paridaens, 1994). Althoughforeign prisoners can appeal for diplomatic help, such help cannot meet all of theirconcerns and overcome their problems. This has led some authors to conclude that thetransfer of sentenced persons is one of the most effective methods of responding to theproblems of foreign prisoners, despite the practical problems that these procedures giverise to (Simon and Atkins, 1995).

Recently, concerns appear to have centred on sentencing states that want to getforeign prisoners out of their prisons. If a sentencing state forwards the judgment witha view to enforcement under the provisions of the Framework Decision, the executingstate has to recognize and enforce the judgment, except when there are certain (formal)grounds for refusal (listed in art. 9). In cases of enforcement of a sentence imposed ona national (residing in the state of nationality or awaiting expulsion/deportation towardsit), the consent of the home country is thus dispensed with. Although the text of theFramework Decision mentions that forwarding the judgment may take place when ‘theissuing state . . . is satisfied that the enforcement of the sentence by the executing statewould serve the purpose of facilitating the social rehabilitation of the sentenced person’,it is not inconceivable that some authorities might also use the transfer of sentencedpersons for their own benefit. Transfer could be used as an instrument in migrationpolicy, in cases where crimes have been committed by illegal migrants (Vermeulen,2007), and it could also acquire a symbolic function as an expressive form of crimecontrol that exports foreigners that have committed crime in the sentencing stateimmediately after the adjudication. The adapted form of transfer (under the Frame-work Decision) is already being presented in some quarters as a new, effective methodfor deterring foreign criminals and for being tough on crime.9 These developments mayreflect the changing relationship between the ‘community’ and the ‘offender’ (Garland,2001), which has shifted from one characterized by concerns for reintegration to onepreoccupied with issues of protection and exclusion. In this case the exclusionary crimecontrol agenda is directed towards foreign offenders (Jamieson, 2004).




How much room for subjectivity is to be found in transfer procedures?The circumstances surrounding an individual’s detainment, and options for preparingan offender for reintegration, can both be seriously influenced by the decision whetheror not to transfer him. Transferring an offender to another country is no small matter;it would therefore seem fundamental that the preferences and concerns of the sentencedperson are considered. Three options for involving sentenced offenders are included inthe regulations: the right to take initiative, the right to be heard and the right to refuseto be transferred (veto).

Under the prevailing regulations, the right to take the initiative is reserved for thesentencing and/or executing state. According to the Transfer Convention, a prisoner canexpress an interest in being transferred, and in practice this is usually what happens.Few countries act on their own initiative; instead they await a request from a foreignprisoner before initiating the transfer process. However, interest from a foreign prisonerdoes not constitute a formal request, so states are not obliged to act upon it. Moreover,prisoners do not have any legal options at their disposal if a state does not start a transferprocedure. This approach makes it clear that a transfer is a favour, rather than a right(Vermeulen, 2006). This situation remains the same under the new FrameworkDecision: a sentenced person can only make a request to be transferred. The requestdoes not oblige the states to initiate the procedure.

Traditionally, the consent of a sentenced person was needed in order to proceed witha transfer. Under the Transfer Convention of 1983 sentenced persons have a veto right:they cannot be forced to serve the sentence in a country other than the sentencingstate.10 In the Protocol two exceptions were outlined: consent of the sentenced personwas no longer required when a sentenced person had fled to his home country, or whenhe would be deported to his home country after the enforcement of the sentenceanyway. In the new Framework Decision, which will replace the Transfer Conventionin the transfer of sentenced persons among EU member states, the veto right of thesentenced persons is to be abolished when sentenced persons are transferred to theircountry of nationality and residence.11 There will still be room for them to be consulted,since the ‘opinion of the sentenced person shall be taken into account when decidingthe issue of forwarding the judgment together with the certificate’.12 The text of theproposed Framework Decision does not specify which elements should be discussed orhow the consultation of the sentenced person should influence the decisions whetheror not to transfer. The 1983 convention also provided for the sentenced person to beconsulted. Most countries restricted this to a brief verification of the consent given,since on the basis of the Transfer Convention of 1983 nobody could be transferredagainst their will. It remains to be seen how consultation procedures will evolve whenEU member states become able to transfer prisoners without their consent.

The abolition of a requirement for consent evokes an ambiguous response. On theone hand, it would not be difficult to accept that transfer to his home country is in asentenced person’s interest. The problems that foreign offenders experience in prisonare generally exacerbated by the fact that they are foreign. Transfer would therefore bethe most appropriate way of responding to these problems and reducing the harmcaused by their detention. On the other hand, the Transfer Convention included therequirement of consent because the legislator presumed that transfer without anoffender’s consent would be counterproductive to his rehabilitation. The Protocol




defined two clear-cut exceptions, where the sentenced person has fled to his homecountry, or where he will be deported to there. These exceptions seem reasonable interms of reintegration as they relate to circumstances where an offender cannot build afuture in the sentencing state.13 In both situations, it is most likely that offenders canprepare their reintegration better when in detention in their home country rather thanin the sentencing state. After all, the presence of sufficient and necessary possibilitiesfor reintegration should have a decisive role in the decision whether or not to transfera sentenced person to his home country. Crucial in this decision is the question of whichcountry an offender can start a new life in after punishment. In this sense, the optionof the CoE Protocol of 1997 – transferring sentenced persons who are not allowed tostay in the sentencing state after punishment – is quite logical (Paridaens, 1994). Themain problem is, however, that decisions on expulsion, and deportation orders, take along time to process, so a sentenced person’s residential status is often uncertain forquite some time (Snacken et al., 2004).

If, however, consent will no longer be required when offenders are transferred to theirhome country this raises questions about the intentions of the legislator. We can onlypresume that foreign offenders would agree to serve their detention in their homecountry, for the reasons mentioned above. But we do not know whether this is actuallythe case. We simply do not have enough insight into reasons why foreign offendersmight object to being transferred to be able to assess how problematic transfer withoutconsent might be. We therefore lack adequate standards to evaluate any objections raisedby offenders, and to assess the pros and cons of transfer without consent. If legislators take rehabilitation seriously, the requirement of consent should not bedropped light-heartedly.

It has been mentioned that it is possible that the transfer of prisoners could be usedas a way of exporting foreign offenders; however, a legislator could also wish to transferprisoners to their home country because of the harsher detention circumstances thatexist there and the increased severity of the sentence that would result. In this case,transfer would be used to make sentences for foreigners more punitive and morerepressive. Such deliberate increasing of the damage stemming from detention wouldbe inconsistent with the aims of rehabilitation (Rotman, 1994). On the contrary, therights model of rehabilitation prescribes that one should opt for the least severe sanction.The convention on human rights also declares that nobody can be subject to degrad-ing or inhuman treatment. This implies that transfers to countries where detentioncircumstances are degrading should be refused (Ashworth and Wasik, 1998). Thecircumstances of detention in the country a prisoner would be transferred to do notcurrently give the competent authorities grounds to refuse the transfer.

Does interstate transfer take into account the subsidiarity of the prison sentence?From a rehabilitation perspective, the prison sentence is considered to be an ultimumremedium, based on the assumption that punishment and/or aftercare in thecommunity will enable offenders to reintegrate more successfully. The SupervisionConvention expresses a concern that foreigners should not be excluded from the appli-cation of alternative sanctions and measures. According to the explanatory report,judicial authorities are reluctant to impose alternative sanctions on people who do not




have a permanent residence in the sentencing state. Offering the possibility of serving a sentence abroad was meant to stimulate alternative sanctioning for foreignoffenders so that they could ‘also benefit from the methods which have proven theirsuccess on a national level regarding the prevention of recidivism’. The new Frame-work Decision on supervision is intended to be a more effective instrument than the Supervision Convention, which was ratified by only a few countries (including only12 member states of the EU). The preamble states that as there are several types ofprobation common to member states, all member states are in principle willing to supervise.

The Transfer Convention deals with the international execution of prison sentences,but in theory room has been left for a sentence to be adapted or converted. The conven-tion offers two ways in which a sentence can be executed: (1) its continued execution,in which the sentence should be as similar as possible to the original sentence14 and (2)its conversion into a sentence prescribed by the law of the executing state (with therestriction that it cannot be converted into a pecuniary sentence). Most ratifying statesexcluded the second option, however.15

It is to be expected that at the EU level the use of conversion procedures will furtherdecline. After all, the EU explicitly opted for mutual recognition of judicial decisions:recognition was nominated the cornerstone of judicial co-operation in criminal matters.The showpiece of this new evolution, the Framework Decision on the European ArrestWarrant, emphasized that the judicial decision taken by a member state should be fullyexecuted, as if it were a decision made by the competent authorities of the executingstate. The newly proposed Framework Decision on transfer stipulates that the durationof a sentence can only be altered where the sentence ‘exceeds the maximum penaltyprovided for similar offences under its national law’, but that ‘the adapted sentence shallnot be less than the maximum penalty provided for similar offences under the law ofthe executing state’.16 Sentences can be adapted in their nature when they are incom-patible with the law of the executing state. The adapted sentence must correspond asclosely as possible to the sentence imposed in the issuing state.

So, in general, little reference is made to the conversion of prison sentences intoalternative ones. This is of some importance, as research has consistently shown thatalternative sanctions are applied less frequently to foreigners (Ruggiero et al., 1998;Beyens, 2000). It is therefore possible that foreigners are given a prison sentence whenthey would have been sentenced to an alternative sanction if convicted in their homecountry. If the conversion of sentences would be given more priority in the new Framework Decision, it could be possible to remedy this situation (Paridaens, 1994).If the new Framework Decision on supervision can achieve its goals, this could alsocontribute to a wider use of alternative sanctions for foreign offenders.

Subsidiarity of the prison sentence could also partially be achieved by conditionalrelease, as this integrates with aftercare and assistance. In the most recent EU develop-ments concerning transfers, differences in domestic regulations regarding conditionalrelease have been the subject of some debate.17 The law of the executing state governsthe enforcement of a sentence, and therefore only the executing state is competent todecide on conditional release. Member states are reluctant to transfer prisoners to stateswith a more lenient system for conditional release. The fact that sentencing states refuseto transfer prisoners who could benefit from less severe conditional release delays in




their home country does not seem to be a good recipe for the optimal reintegration ofoffenders.

The exequatur procedure does not explicitly leave room for the conversion of prisonsentences into alternative sanctions in any of the regulations, and the capacity to converta sentence is limited. The debate over the conversion of sentence and the delays inbecoming eligible for conditional release demonstrate that countries are rather protec-tionist towards the sentences they have imposed. Conversion procedures are consideredto be a form of implicit criticism of the sentencing practices of the sentencing state(Orie, 1995).

The differences in sentencing and release can, however, be put to a constructive use:comparisons between different legal systems raise questions about the legitimacy of one’sown system. A national criminal justice system often has characteristics that not onlyreflect the nature of the crime that a country faces but are also a product of political-historical processes (Duff and Garland, 1994). The transfer of sentenced persons couldoffer the opportunity to put the particularities of one’s own criminal justice system intoperspective, especially when the subsidiarity of the prison sentence could be served. Wemust not forget that subsidiarity is a basic principle of the rehabilitative ideal and it hasbeen supported for some decades now in academic criminal justice debates. It couldthus offer a way of assessing interstate differences and particularities.

For the moment, protectionism seems to take precedence over subsidiarity, indicat-ing that a lot of countries find it easier to support deterrence (rather than reinte-gration), achieved by handing down long and harsh prison sentences, as the primaryobjective of punishment. The transfer of sentenced persons appears to be caught up inthe revival of new-but-old-fashioned concepts of a more repressive criminal policy,which have developed alongside the old-but-modern concepts of humanitarian criminallaw (van Kalmthout et al., 2007).

Does interstate transfer improve access to treatment and assistance?The damage detention can cause to foreign inmates is a key issue in the explanatoryreports of the European conventions and instruments we have discussed. These reportsare filled with humanitarian arguments and an intention to counteract damaging influ-ences stemming from language and cultural barriers, and the alienation of one’s ownculture and habits. Indeed, being a foreigner in the prison of another country creates abarrier to contact with the competent authorities, including prison staff and specializedservices (treatment and solicitors). It can be difficult, or sometimes impossible, tocommunicate vital information and specific needs (van Kalmthout et al., 2007).

Adding to these problems is the fact that a lot of communication within prisons isdone in writing: from the authorities to prisoners (e.g. concerning procedures, regu-lations and visiting and telephone rules), and from prisoners to the authorities (requestsfor appointments with therapists, subscriptions to take part in activities) (Snacken etal., 2004). Often there is no specific policy towards foreigners in prison, so some docu-ments are not available in other languages (Bhui, 2004).

The sentencing state is not the best place to begin reintegration initiatives, particu-larly when there are major cultural differences between the two countries. Preparingprisoners for reintegration into society when they are released in their home country isoften not possible or inadequately done if prisoners remain in foreign jails. Transferring




them to their home country before release would normally solve this issue, giving betteraccess to services and providing stronger connections between the society an offenderis going to be released into, and the help and treatment provided in prison.

Access to help and assistance during and after punishment is only indirectly dealtwith in the regulations, and whether or not help and treatment are provided in aprisoner’s home country, and in what form, is not taken into account in the transferprocedure. Nevertheless, treatment and aftercare are intrinsic components of the re-habilitation perspective (Post, 2005). This is unproblematic when both states providesimilar services during and after punishment. The issue becomes more complicated,however, when the home country of an offender is unable to offer such service but thesentencing state can. Does the fact that prisoners can serve their sentence in their homecountry compensate for missing out on the treatment they need? Transfer regulationsfocus on the importance of an offender’s societal bonds. But if punishment is tomaximize the chances of successful reintegration, adequate opportunities for assistanceand treatment should be provided. The opportunities available within prison play a keyrole; starting treatment in prison means the first steps towards reintegration can betaken. Notably, the ‘rights’ model of rehabilitation emphasizes the right to educationand assistance, and the avoidance of detention circumstances that are incompatible withreintegration (Rotman, 1994).

Does interstate transfer help to establish or restore societal bonds?Reintegration is built on a clear engagement with communities and places; it pre-supposes that societal bonds are established or can be restored, so that offenders arereintegrated into society as full members. In terms of the transfer of sentenced persons,the importance placed on social bonds is clearly reflected in the fact that transfers aregenerally restricted to the home country of the offender. The permanent residence ofan offender is generally considered to be the decisive criterion for defining an individ-ual’s home country. With regard to the Transfer Convention, the EU member states forexample have stated in the Application Convention that they consider people with apermanent residence to be equivalent to nationals, and the interests of permanent resi-dents are of equal importance to that of nationals. In the new Framework Decision ontransfer, transfer can only happen automatically if it is to the state of nationality of asentenced person, but can be made only if the offender lives there (or will be deportedto it). The new Framework Decision on supervision deals with the transfer of super-vision to the country of (lawful and ordinary) residence.

Of all the components of reintegration, an offender’s societal bonds, or at the veryleast the maintenance of their relations with family and friends, are the focus of mostattention in the regulations concerning the transfer of sentenced persons. The explana-tory reports of every convention mention an offender’s social bonds as an importantreason for the transfer of sentenced persons. The regulations explicitly refer to the factthat foreigners in prison abroad experience difficulties maintaining societal bonds (e.g.contacts with family and friends). Such isolation adds another dimension of toughnessto the sentence. According to the prevailing regulations, transfer to a country where asentenced person will be surrounded by a supporting social network should be encour-aged as much as possible. Although this is obviously in line with the imperatives ofrehabilitation, some comments are worth noting.




First, in the regulations concerning the transfer of sentenced persons, contact withfamily and friends is considered the most important indicator of societal bonds.However, successful reintegration is not solely dependent on the presence of a socialnetwork; therefore other indicators of societal bonds should also be taken into account.As we have seen in the discussion on the rehabilitative framework, employment stabilityor prospects are also important factors for a cessation of offending. However, the currentprocedures for the international execution of sentences rarely, if ever, mention theemployment situation or future prospects of offenders. Moreover, current regulationsseem especially preoccupied with the preservation of existing elements of integration, inparticular the societal bonds an offender had prior to the offence. For some individuals,however, the preventive potential of previous societal bonds has not proven to besufficient in preventing crime, and so that an intervention is needed that will encour-age an offender to take a new course in life (McNeill, 2006). In the prevailing regu-lations, therefore, ambitions relating to reintegration have been scaled down, and relateonly to limiting the damage stemming from detention (Post, 2005).

Second, it should be noted that transfers should not be made dependent on thequestion of how good an individual’s chances are for reintegration once transferred, butinstead on the question where (in which country) the preconditions for reintegration are thebest. Whether the opportunities for reintegration are good or bad, they are always morelogical or better in one country or another. With regard to reintegration, the authoritiesinvolved should therefore not conduct more than a preliminary assessment of theconditions for reintegration. If transfer is restricted to those individuals who have a goodchance of successful reintegration, only so-called ‘low risk’ offenders would be transferredand transfer would become a favour rather than a rationally used instrument.

So, although societal bonds are unquestionably an important issue in transferregulations, reintegration should focus on an offender’s future – their possibilities forreintegration into society – as much as on their past social bonds.

CONCLUSIONNew conventions and procedures have been developed in Europe in the last few decadesthat allow for the international execution of sentences, allowing them to be carried outin countries other than the one in which the person was sentenced. An offender’s re-integration was one of the most important components of the ratio legis for theseregulations. Reference to the rehabilitation of an offender was made not only in thefirst conventions, but also in the most recent initiatives of the European Union (in thenew Framework Decisions). Reintegration can therefore be considered the main officialargument for these policy choices. The transfer of sentenced persons offers, accordingto the texts, a number of advantages that are directly related to the reintegrationprospects of foreign offenders.

The international execution of sentences would appear to offer significant oppor-tunities for improving the reintegration prospects of foreign offenders. On the basis ofour analysis however, we cannot categorically state that integration will be the result ofthese policies. In order to prove this it would be necessary to compare reintegrationindicators for groups of offenders who have been transferred with those who were not.This was not the aim of our analysis. Our intention was instead to evaluate critically




the intended goals of the transfer instruments and discover whether they were reflectedin the policies’ implementation and application. It became clear from our analyses thatin some cases they were not.

In part, the intrinsic components of the rehabilitative framework are present in theprevailing regulations. Substantial attention is devoted to the societal bonds of anoffender, for instance. Currently, the Transfer Convention is the most important instru-ment, and this allows some room for subjectivity in the decision-making process: beforea decision is taken the personal motivation of an offender is taken into account, assentenced persons currently have a veto right that allows them to prevent a transferagainst their will. Even when such consent will no longer be required (cf. the proposedFramework Decision), it will still be necessary to consult them.

Not all the components of reintegration were incorporated in the prevailing regu-lations, however. The subsidiarity of the prison sentence is only mentioned in the Super-vision Convention (and Framework Decision). In the other instruments the subsidiarityof the prison sentence could be dealt with within the framework of the conversionprocedure, but the member states are very reluctant to do so. Also, the concept of anorientation towards change that characterizes the rehabilitation perspective can onlyrarely be found in the regulations, which seem preoccupied with maintaining an indi-vidual’s existing societal bonds rather than encouraging elements that are necessary todesist from crime. Furthermore, the interpretation of societal bonds is rather restrictive:it relates only to contacts with family and friends and overlooks other objective indi-cators of reintegration (housing and employment) that have a demonstrated effect onfuture criminal behaviour.

The transfer instruments also contain elements that are contrary to the philosophyof reintegration. For instance, there is very little room for sentenced persons to initiatea transfer. Generally they can only express their interest or file a non-binding request.In addition, there has recently been a move towards the abolition of the need to obtainconsent. If transfer happens without the consent of the offender, would the prospectsfor reintegration really be enhanced (Paridaens, 1994)? From a juridical point of viewit is not clear why the requirement of consent could not be preserved, since the transferof a prisoner does not harm the legal order: even if a sentenced person refuses thetransfer, the sentence will still be carried out (Vermeulen, 2006). By abolishing theright to veto, the legislator probably expects to increase the number of transfers. Thefact that consent is considered to be an obstacle may indicate that offenders do notfeel that transfer is of benefit to their reintegration, or that it is in any way a favour.Further research should be conducted to find out why offenders in foreign jails objectto transfer.

Without doubt, the transfer of sentenced persons could be an important tool forimproving offenders’ reintegration prospects; but the evaluations we have carried outmake it clear that not all aspects of rehabilitation are present in the current regulations,and in future they will be devalued even more. At the moment the transfer of sentencedpersons, just like other aspects of the internationalization of criminal justice, seems tobe caught between the demands for effective crime control on the one hand and theissue of offender rights on the other (Deflem, 2002).




Notes1 The Council of Europe comprises 46 countries. The policy aims of this political

organization relate particularly to human rights, and social and legal practices, butalso include education and culture. The Council of Europe has established a frame-work for international co-operation between its member states. With regard to thislegal co-operation the Council of Europe mostly makes use of conventions, whichare binding on the (non-)member states that ratify them.

2 The European Union currently consists of 27 member states. It creates initiativesin many policy domains, including EU Justice and Home Affairs (JHA). Thetransfer of sentenced persons forms part of a judicial co-operation in criminalmatters that member states have committed themselves to, in order to create an areaof ‘justice, freedom and security’ within the EU.

3 A Framework Decision is a fairly new instrument that is used by the EuropeanUnion in the processes of mutual recognition of decisions in criminal matters andharmonization of criminal law. Framework Decisions bind the member states to theresults; member states can then choose the form and the means they use to achievethese results.

4 Council Framework Decision on the application of the principle of mutual recog-nition to judgments in criminal matters imposing custodial sentences or measuresinvolving deprivation of liberty for the purpose of their enforcement in theEuropean Union, Brussels, 21 April 2008, 5602/08 COPEN 12.

5 Council Framework Decision on the application of the principle of mutual recog-nition to judgments in criminal matters imposing custodial sentences or measuresinvolving deprivation of liberty for the purpose of their enforcement in theEuropean Union, Brussels, 21 April 2008, 5602/08 COPEN 12.

6 Council Framework Decision on the application of the principle of mutual recog-nition to judgments and probation decisions with a view to the supervision ofprobation measures and alternative sanctions, Brussels, 6 May 2008, 6836/08COPEN 35.

7 In this article we will use the term subjectivity rather than, for example, indi-vidualization, as it refers to the level of attention that can be given to the subject,their subjective needs and motivations as well as to the role a person can play incertain procedures (in this case transfer procedures).

8 Studies demonstrate that ex-convicts experience high levels of social needs (Maguireand Raynor, 2006). They are one of the least privileged groups and are subject tosocial exclusion. This has to do with the history of the detainees and with the conse-quences of the prison sentence. Many detainees lose their job, housing and so onwhile in prison, others face financial problems or loss of contact with family andfriends (Robinson and Raynor, 2006).

9 For example, the Belgian policy note on required reactions towards itinerant groupsof (Eastern-European) burglars.

10 Normally, the executing state examines whether the consent was given voluntarilyand with full knowledge of the consequences of the transfer. In the Belgianimplementation law of the Transfer Convention, a double check of the consent ofthe transferred person is provided for. After the person arrives in the Belgian prison,




he is questioned about the regularity of the procedure and the consent. The doublecheck indicates that the consent is taken seriously.

11 As mentioned in the introduction, the consent of the sentenced person will not berequired in case the sentenced person will be transferred to (1) the member state ofnationality in which the sentenced person lives; (2) the member state to which thesentenced person will be deported once released from the enforcement of thesentence; (3) to the member state to which the sentenced person has fled.

12 Article 6(3), Council Framework Decision on the application of the principle ofmutual recognition to judgments in criminal matters imposing custodial sentencesor measures involving deprivation of liberty for the purpose of their enforcementin the European Union, Brussels, 21 April 2008, 5602/08 COPEN 12.

13 This exception was also previously defined in the Schengen Execution Agreement.Since not all EU member states ratified the CoE Protocol, the Schengen provisionsremain important.

14 In case of incompatibility of both criminal justice systems the punishment can beadapted to the most comparable equivalent. Where there is a real substitution ofthe sentence in the second procedure, in the first procedure there is only room foran adaptation to national regulations to allow for the execution of the sentence.

15 In Belgium the exequatur procedure with regard to the 1983 Convention has beenrestricted to these situations where the nature or length of the sentence is incom-patible with the Belgian legal system. A conversion of a prison sentence in analternative sanction would not fit in this restricted type of exequatur procedure.

16 Article 8(2), Council Framework Decision on the application of the principle ofmutual recognition to judgments in criminal matters imposing custodial sentencesor measures involving deprivation of liberty for the purpose of their enforcementin the European Union, Brussels, 21 April 2008, 5602/08 COPEN 12.

17 The same problem existed regarding transfer from the USA to Canada. TheAmerican authorities supposed that Canada released its prisoners consequentially atone-third of the sentence. In reality this was not the case at all: especially seriousoffenders were almost never released at one-third, but stayed in detention until theyhad served two-thirds of the sentence.

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EVELINE DE WREE holds a PhD fellowship of the Research Foundation – Flanders (FWO). Eveline is a

criminologist and a researcher at the Institute for International Research on Criminal Policy of Ghent

University.

TOM VANDER BEKEN is a lawyer (PhD Law) and a criminologist and one of the directors of the Insti-

tute for International Research on Criminal Policy of Ghent University. He teaches and publishes about

criminal justice related issues. He takes special interest in studies relating to the execution of sanctions.

GERT VERMEULEN is a lawyer (PhD Law) and one of the directors of the Institute for International

Research on Criminal Policy of Ghent University. He teaches and publishes about international criminal law.




the transfer of sentenced persons in europe: much ado about reintegration

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