EU constitutional limits to the Europeanization of punishment: A case study on offenders’ rehabilitation

A. How to rehabilitate cross-border offenders: a survey of criminological literature

Literature investigating desistance from crime identifies, among many, at least four key factors: age of the offender, ¹⁶ the capacity to build both individual and social capital, ¹⁷ and a change of identity in the offender. ¹⁸ Briefly, young offenders tend to abandon the criminal path as they grow older, especially if they acquire professional skills they can use in reintegrating into society, if they maintain ties with friends and family, and if they change perception of themselves from criminals to new agents of their new law-abiding life. Such change towards a more agentic identity is all the more likely if autonomy of decision making on one’s own rehabilitation process is promoted during sentence execution, where possible.

Normative compliance literature also teaches us that citizens who perceive an authority as legitimate are more prone to live by the rules, ¹⁹ and that legitimacy depends on whether individuals feels treated fairly by that authority. ²⁰ This happens when they received adequate explanation for authorities’ decisions concerning them; ²¹ when they are allowed to express informed opinions on such decisions; ²² and when they feel treated with dignity and respect. ²³

Moreover, trust-based and uninterrupted relation between offenders and authorities in charge of them, probation officers or prison staff, are particularly important in triggering in offenders an internalized commitment to the law. ²⁴ What should be avoided are sudden changes in applicable legal frameworks, ²⁵ or frequent changes of probation officers, as ‘transfers of supervisory responsibility might not come with a transfer of psychological legitimacy’. ²⁶

Depending on the situation, promoting each of these factors might have different concrete policy implications. In the case of cross-border offenders, the subject matter of this article, the biggest challenge is helping them maintain a social capital. Individuals who commit crimes abroad and are subsequently prosecuted and convicted there might have difficulties reintegrating into society if family and friends are in another country. In this context, transferring the offender to the state of origin, and having that state take responsibility for the execution of the sentence, can improve the offenders’ chance of rehabilitation. However, transfers should not be an automatic measure for any foreign offender. Foreign criminals might have resided for a long time in the convicting state, and actually have social capital there. Alternatively, they might have social capital in their home state, but which has criminogenic effects. Rather than helping reintegration, family background might be the reason why the person re-lapses into crime. Finally, the convicting state might have better structures and resources to finance reintegration. In this case, serving the sentence in the convicting state might better serve the rehabilitation of the foreign citizen. Briefly, transfers might help offenders, but a case-by-case analysis should always be carried out.

Next to this, one should bear in mind that the decision to transfer an offender is a very significant step in the course of a sentence execution. Thus, the same policy recommendations applicable to any authorities’ decision, in terms of motivation, informed participation, and promotion of autonomy, should also apply to it. Bottoms observes that

(…) every instance of brutality in prisons, every casual racist joke and demeaning remark, every ignored petition, every unwarranted bureaucratic delay, every inedible meal, every arbitrary decision to segregate or transfer without giving clear and unfounded reasons, every petty miscarriage of justice, every futile and inactive period of time – is delegitimating. ²⁷

A transfer to another country where different rules apply, where sentences can be de facto longer due to different early release regimes, where detention conditions might be worse or where enforcement rules for breach of probation orders can be stricter, is certainly not a minor event in the life of an offender. It has a larger impact than an inedible meal or an internal transfer. Therefore, it must not be carried out arbitrarily, without giving enough information or explanation to the offender, or marginalising his/her role in the procedure.

Lastly, transfers by definition interrupt any quality relation prisoners or probationers might have established with prison staff and probation staff in the convicting state. The possible offenders’ loss of trust in the authority caused by such interruption should be balanced against the gain in terms of higher possibilities of building social capital in the state of execution. Still, an option to minimize the negative consequences stemming from transfers is envisaging them as early as possible in the execution of the sentence, so to allow the majority of the sentence to take place in the state of execution. This would allow the offender to build trust-based relationships in that state at an early stage, and not have them interrupted by a transfer.

Ideally, EU norms regulating transfers of offenders would implement all of these aspects, to ensure higher rehabilitative chances to cross-border offences. Yet, they also have to pay due consideration to the limits imposed by EU constitutional law.

B. EU constitutional law limits to cross-border punishment: Fundamental rights and national regulatory autonomy

Firstly, EU norms on punishment are no different from national ones, in that they have to respect fundamental rights. This is required by EU constitutional law, notably Article 52 of EU Charter of Fundamental Rights. The most relevant rights involved in transfer situations are connected with prison conditions, such as the rights not to be subject to inhuman and degrading treatment, ²⁸ or possibly the right to family life. ²⁹ Transfers that would result in these rights being violated (for instance, due to the prison conditions in the executing state) are not admissible, regardless of a higher possibility of rehabilitation. Moreover, the transfer procedures themselves must respect fundamental rights. ³⁰

Secondly, EU norms on transfer of offenders, as any other EU norm, must not disproportionally compress Member States’ regulatory autonomy. The EU is a special multi-level regulatory system, where the EU and the Member States share legislative competences in a great number of policy areas. ³¹ To avoid over-centralization, several safeguards exist within EU constitutional law. Among these, the principle of proportionality, established in Article 5(4) of the TEU, requires that ‘the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’. In national constitutional legal orders, proportionality traditionally applies to the relation between state and individuals, and protects the liberty and fundamental rights of the latter. ³² This ‘fundamental rights’ proportionality is also acknowledged within the EU Charter of Fundamental Rights (Art. 52). For the purpose of our discussion, respect of this kind of proportionality is subsumed in the general requirement of ‘respect of fundamental rights’. ³³ Yet, it was authoritatively argued that in Art. 5(4) TEU proportionality is meant to regulate also a different relation, specific to the EU, namely that between the central entity (the EU) and the periphery (Member States). ³⁴ Art. 5 TEU requires centralized regulation not to compress disproportionately national regulatory autonomy. EU norms pursuing a common objective must be proportionate to the latter, meaning they need to suitable and necessary to achieve the pursued policy objective, that is, no less intrusive norms must be available. Moreover, there must be an ultimate balance between the advantage of having a EU-wide norm, and the compression of national preferences on how to regulate the matter. ³⁵ This last step is normally referred to as ‘proportionality strictu sensu’. How to strike this balance between these two interests is ultimately a policy choice. ³⁶

The assumption made in the previous section is that envisaging an EU-wide system of transfer of offenders is a suitable and necessary measure to ensure that punishment has a rehabilitative function also in cross-border cases. Yet proportionality requires a balance between the advantage that having EU-wide norms brings to the policy objective of rehabilitating cross-border offenders, and the compression of Member States’ regulatory autonomy on matters of sentence execution. For simplicity’s sake, when referring to this proportionality strictu sensu step, the rest of the article will speak of a balance between ‘rehabilitation’ and ‘national regulatory autonomy’.

Member States have a strong interest in autonomously defining the rules on when sentences are to be executed on their territory, and not having an EU-defined, automatic system of allocation of offenders across countries. Executing a sentence has financial costs linked to maintaining the person in prison, or financing probation services, and logistical costs linked to overcrowding of prisons or overburdening of social services. Moreover, there are costs in terms of ‘internal security’ in the case of sanctions alternative to detention. When assessing whether to impose an imprisonment sanction, or an alternative sanction, ³⁷ the authorities must carry out a delicate balance. They must weigh the need for incapacitating the offender, in light of his/her social dangerousness, and other factors such as the limited seriousness of the crime, or the possible criminogenic effects of imprisonment, which militate in favour of an alternative sanction. When a decision is taken in favour of a probation order, such as limiting freedom of movement with an electronic bracelet, rather than an imprisonment sentence, the competent authority accepts the risk of having an offender free to circulate, although with limitations, on national territory.

In a purely national case, sentence execution costs are naturally borne by the convicting state. If, however, the case involves a foreign offender, it is not self-evident which state has to bear such costs. If rehabilitation would be better achieved in the state of origin, the burden ideally should fall on the latter states. This, however, implies further political costs in terms of compression of sovereignty, since that state has to execute a sentence it did not impose. Conversely, if rehabilitation is better achieved in the convicting state, ³⁸ this one should bear the costs. Yet, justifying to tax-payers that a state bears prison and-or internal security costs for non-nationals, as opposed to expelling them, might not be easy.

In light of the above, the most protective choice for national regulatory autonomy on matters of sentence execution is to design a system where states have a wide margin to decide when an offender’s transfer should occur. This might, however, create tensions with some of the policy implications listed above, serving the objective of cross-border rehabilitation. The next section turns to the analysis of whether or how the EU has incorporated the different policy implications serving the relevant function of punishment, namely rehabilitation, and the respect of the EU constitutional law limits, and addressed the possible tensions, in the two FDs on transfer of offenders.

A. Transfers’ potential to increase offenders’ social capital

The preamble of both FDs includes offenders’ rehabilitation as an objective of the transfers and connects it to higher chances of maintaining a social capital. ³⁹ Yet there are a number of features of the texts that lead one to question whether this outcome always follows from transfers. Firstly, admittedly the Transfer of Prisoners FD includes an obligation for the issuing state only to forward transfers request when they are satisfied that higher chances of rehabilitation exist in the executing state. ⁴⁰ Conversely, the Transfer of Probationers FD does not even include a similar obligation. However, there are limited avenues to enforce the obligation present in the Transfer of Prisoners FD. In principle, the consent to the transfer of both the executing state and the offender are requested. ⁴¹ If ties with the executing state are lacking, making rehabilitation unlikely, either the requested state or the offender can deny such consent. Yet this rule suffers important exceptions. Consent of the executing state is not necessary when that is the state of nationality and where the person lives, or the state of nationality and where the person would be deported after conviction, in the case of the Transfer of Prisoners, ⁴² or the state where the person is lawfully residing, in the case of the Transfer of Probationers FD. ⁴³ In these situations, the transfer should be automatically authorized unless any of the exhaustively-listed grounds for refusal are present. Yet, the lack of rehabilitative prospects does not feature among such grounds in either FD. ⁴⁴ As is explained in greater detail in the next section, these situations generally do not require the consent of the offender either. As a result, offenders cannot object to poorly-reasoned transfers unless they have a right to appeal transfer decisions, which not all Member States grant. ⁴⁵

Secondly, neither FD specifies how the authorities of the convicting state should acquire information about the conditions in the executing Member State. They only state that the convicting state may consult with the authorities of the executing state. ⁴⁶

Briefly, both FDs de facto envisage a system where in principle a convicting state could unilaterally transfer offenders towards the country of nationality, regardless of their chances of having higher social capital there.

This legal framework is not as such in tension with fundamental rights. Case law of the Strasbourg court has ruled out that offenders should enjoy a right to be transferred for rehabilitation purposes, ⁴⁷ or even a right not to be transferred. ⁴⁸ A transfer that does not aim for this purpose is not, per se, a violation of fundamental rights, provided that no additional violations of fundamental rights occur during the transfer, or as a result of it (for instance, if an offender is transferred to a prison that does not meet fundamental rights standards). In any case, both FDs include a general respect of fundamental rights clause. ⁴⁹

Yet, the discretion granted to the issuing Member State on the decision to transfer has been criticized in literature. It was argued this is inconsistent with the texts’ declared objective of offenders’ rehabilitation, and is revealing of the real objective of the FDs, namely ‘getting rid’ of unwanted individuals and relieving the state of the burden of sentence execution. ⁵⁰ It is submitted here that these policy choices are not a neglect of the common objective, but the outcome of a legitimate compromise with other competing interests. In this case, full achievement of offenders’ rehabilitation, which would have required stricter controls on the actual objectives of transfers, was assumingly considered as disproportionately compressing the convicting state’s autonomy on sentence execution. This balance of interests that the EU FDs strike in the context of proportionality strictu sensu text explained above can be an undesirable one to some, yet it is a legitimate one under EU constitutional law. One should note, however, that Member States do not necessarily always abuse their discretion. ⁵¹ There are cases of good practice, for instance in Spain, of transfers occurring often after due consultations with the state of execution. ⁵²

Admittedly, the transfers system does not accommodate the execution state’s interest in preserving its regulatory autonomy. The latter could have to execute foreign sentences on its territory without having consented to it. Yet, the two states have a competing interest in maintaining decision-making control over the procedure. Privileging one or the other is thus a matter of choice. Admittedly, to have a slightly more balanced system, consultations with the execution state could have at least been made mandatory.

Conversely, the system of transfers as designed might be in tension with other EU constitutional law norms, namely those on free movement. EU citizens enjoy a wide right of residence in EU Member States. ⁵³ Their deportation is only admitted in specific cases and following particularly elaborated procedures. ⁵⁴ In particular, the Court of Justice has ruled out that EU citizens can be expelled from an EU Member States solely on the basis of having committed a crime. ⁵⁵ Transfers of offenders that do not specifically serve a rehabilitation purpose cannot thus not become ‘covert deportations’, which follow a simpler procedure, under the ‘excuse’ of rehabilitation. This would simply be a way to circumvent EU norms on free movement. To avert this risk, a clause ensuring that nothing in the FDs should be interpreted as interfering with offenders’ free movement rights, similar to the one on the respect of fundamental rights, could have been inserted.

B. Offenders’ autonomy of decision-making in transfers’ decisions

Autonomy of decision-making, especially in the context of community sanctions, ⁵⁶ was said to be key to rehabilitation, especially because it fosters a change towards a more agentic identity. Yet it is not an absolute principle, as coercion of autonomy and freedom is at the core of sentence execution, especially prison sentences. An offenders’ autonomy of decision-making cannot concern the opportunity of punishment itself. Yet, it should be promoted on its variable elements, such as optional work or other activities during sentence execution. In the case of transfers, autonomy of decision-making can and should be promoted as to the opportunity of the transfer itself. Ideally, offenders should be able to obtain transfers, and to veto transfers the authority might propose them. What is at stake with transfers is not whether to punish, but rather where to punish. Admittedly, in the case, envisaged by both FDs, in which offenders already find themselves in the territory of the execution state, it is not the offender physically who is transferred, but simply the responsibility for sentence execution. ⁵⁷ If the offenders find themselves in the state of execution for having fled there, then transfer of responsibility to execute sentences is one way to ensure certainty of punishment. Allowing offenders to object on the transfer might seem as allowing them to have a say on whether they should be punished. However, the option remains to issue a EAW to have the person arrested, and then still provide him/her with the option of choosing where to serve his/her sentence.

The two FDs do not, however, attach significant importance to offenders’ autonomy. The Transfer of Prisoners FD explains in its preamble that the prisoner’s ‘involvement in the proceedings should no longer be dominant’. ⁵⁸ This is reflected in a number of specific policy choices. Firstly, the text does not create an obligation to inform prisoners about the possibility of being transferred, and not all Member States provide for it in national legislation. ⁵⁹ Where informed, the sentenced person can advance a request to be transferred; however, the convicting state does not have any binding follow-up obligation. ⁶⁰ Secondly, in the event that offenders do not want to be transferred, they might nonetheless have to serve the prison sentence in another country anyway. Offenders’ consent is, in principle, necessary. However, regrettably, eight Member States still haven’t established any procedure for obtaining the offender’s consent. ⁶¹ Moreover, as mentioned above, there are three exceptions to this. Compulsory transfers can occur when the executing state is the state of nationality or of legal residence; when it is the state where the offender will be deported after the sentence; and when the offender is already present in the territory of the executing state, having fled justice elsewhere. ⁶²

Transfer of Probationers occur, as a general rule, following a request by an individual. ⁶³ Yet firstly, it is stated that the convicting state may forward the judgement requesting a transfer upon request of the offender. This implies that the state does not have an obligation to follow-up the offender’s request. Moreover, there are two notable exceptions. Outside the case of explicit offenders’ requests, convicting states can authorize transfers when the offender has ‘already returned’ or ‘wishes to return’ to the state of habitual residence. ⁶⁴ The wording of the FD seems to suggest a mild ‘consent requirement’. However, ‘wanting to return to the state of residence’ is not the same thing as ‘wanting to serve one’s sentence there’. Offenders might want to return only temporarily and might prefer to serve the sentence in the issuing state because of better probation services. Moreover, the FD does not envisage any obligation actually to verify the presence of such consent, and only five Member States have established an ad hoc procedure in national law. ⁶⁵ It is thus theoretically possible that a transfer of supervisory responsibility from one Member State to another happens without probationers being aware of it, ⁶⁶ or where their consent is only presumed but not verified. ⁶⁷

Such compression of an offender’s autonomy, with decision making autonomy, is the aspect that has received the most criticism in literature. Compulsory transfers are considered in stark contrast with the rehabilitation objective, while conversely serving the covert objective of expelling foreigners from the country. ⁶⁸ The choice appears at odds with the pre-existing Council of Europe instruments that always required the consent of the offender before authorising a transfer. ⁶⁹

In this respect, the same considerations made in the previous sections, with respect to the actual capacity of transfers to increase social capital, apply. Offenders do not enjoy a right to be transferred, or not to be transferred, therefore there is no inherent tension between compulsory transfers and fundamental rights, unless other violations occur in specific cases. The choice of keeping the autonomy of decision-making on transfers in the hands of Member States is a legitimate choice to safeguard national regulatory autonomy, as allowed by the EU principle of proportionality. Yet, as was stated above, a disclaimer on individuals’ free movement rights would have been desirable.

Lastly, one should note that Member States’ practice includes both non-consensual transfers like in the UK, ⁷⁰ and good practices of only authorising voluntary transfers as in Spain. ⁷¹ It is therefore not automatic that actual transfer procedures would compress offenders’ autonomy.

C. Offenders’ participation rights in transfers’ decisions

It was mentioned before that procedural justice is key to ensuring that offenders perceive the authority as legitimate and are therefore more inclined to comply with the law, even after release. When dissecting procedural justice, Tyler’s work shows that individuals have an equal, if not higher interest, in having the possibility of simply expressing themselves on the procedures, than on influencing their outcome. ⁷² In the context of transfers this means that offenders are equally, if not more, interested in having their voice heard on the possibility of being transferred, rather than on the need of autonomously deciding on the opportunity of the transfer.

In light of this, it should be welcome that the Transfer of Prisoners FD gives the right to offenders to state a reasoned opinion in writing in all those cases in which consent is not required. This opinion must be considered by the issuing state authorities. ⁷³ This key requirement has been implemented by two-thirds of the Member States, which have put in place different procedures for receiving the consent or the opinion of the offenders. ⁷⁴

The situation is partially different in the Transfer of Probationers FD. As mentioned, when the state of execution is that of nationality or residence, the EU texts do not introduce any obligation to envisage a procedure through which the consent of the person is required. Where there is no right to appeal a decision under national law, ⁷⁵ offenders risk having no occasion to have their voice heard on the possibility of transfer. ⁷⁶ Admittedly, in some cases transfers of supervisory responsibility occur without the probationer’s knowledge, simply because the offender has not left any address or contact, and therefore cannot be found. ⁷⁷ Lack of an offender’s participation in the transfer procedure, therefore, can be due to the offenders’ behavior. In this case, however, an alternative choice would be not to carry on with a transfer at all, unless the person can be found and consulted.

One should note that the choice to allow offenders’ participation is not in tension with any offender’s fundamental rights, nor with the interest in preserving national regulatory autonomy. In this context, the reconciling function and limits to punishment was not a challenging task.

D. Offenders’ information rights about transfers’ decisions

The degree of information that offenders receive with regard to the transfer procedure is important in two respects. Firstly, offenders should receive information on the reasons for the transfer. Justification of authorities’ decisions was mentioned as a key factor in ensuring that offenders perceive them as unbiased and fair, which influences offenders’ perception of authority as legitimate, and foster their internalized commitment to the law. This is admittedly less important when it is the offender who requests or consents to the transfer, but it is crucial when transfers are authorized against offenders’ will or awareness. Offenders’ should receive details on the justification for the transfer and on how it is going to contribute to improving their rehabilitation chances. For instance, they should receive information on the location of the prison to which they will be transferred, on what the visiting rights would be for locally present family, or on available rehabilitative activities for inmates.

Secondly, linked to what was stated in the previous section offenders’ participation to transfers’ decision, and consent where required, should ideally be an informed one. If not correctly informed, even if consulted, offenders might still feel ‘tricked’ for having been misled in their own decision-making process and might thus perceive the procedures as unfair. This can lead to judicial challenges against decisions to transfer. ⁷⁸ To prevent this, offenders should receive information including on the kind of sentence they are going to serve in the executing state, if there is an adaptation of sentence, ⁷⁹ and on the applicable norms in the executing state. For instance, they should be informed on when detention follows a breach of a probation order, or on what are the norms on early release, which could influence the overall length of the sentence. This last aspect is particularly important to prisoners and significantly influences their decisions on transfers. ⁸⁰ The information should be provided to offenders before they have delivered their opinion or consent, or if provided afterwards, offenders should be able to revoke their statements. ⁸¹

The Transfer of Prisoners FD only envisages an obligation to inform the individual prisoners – namely, that they are going to be transferred, offered in a language that they understand. ⁸² The Transfer of Probationers FD does not include any obligation to forward any information to the offender on the legal and practical implications of the transfer. Other EU instruments such as the directives on the right to information and to translation and interpretation are not helpful in this context, since their scope of application does not extend to post-trial procedures. ⁸³

Interestingly, the execution state has an obligation to forward some information, in some cases upon request, to the authorities of the convicting state. These include information on possible amendments to the sentence, ⁸⁴ applicable norms on early conditional release for the Transfer of Prisoners FD, ⁸⁵ and details about when a custodial sentence can be imposed for breach of a probation order for the Transfer of Probationers FD. ⁸⁶ After having received this information, the convicting state can decide to withdraw its request to transfer. ⁸⁷ However, the question of whether such information actually reaches the offender depends entirely on the law and the practice of the Member States. Some good practices exist. For instance, at least 17 (for prisoners) and 14 (for probationers) Member States keep offenders who are the object of a transfer informed as to the adaptation of the sentence. ⁸⁸ When information rights exist, practice shows that linguistic barriers are not a particular problem so far as there is often a common language between authorities of the issuing state and the offender. ⁸⁹ Yet, only six (or three, in the case of probation measures) Member States have in place procedures for verifying that prisoners have fully understood all the practical and legal implications of the transfer. ⁹⁰

Briefly, there are good chances that, even if the offender has an opportunity to give an opinion or consent to the transfer, these won’t be informed, and that he/she won’t be provided with adequate explanations about the reasons for the transfer. This can have a detrimental impact on the overall rehabilitation process, to the extent that it undermines authorities’ legitimacy in the eyes of offenders.

Contrary to what was mentioned for the other factors contributing to rehabilitation, on information rights EU norms could have been more effective in securing the rehabilitative function of punishment in cross-border cases, while still remaining within the EU constitutional law boundaries. Admittedly, EU human rights law does not create specific information rights during the post-trial phase, and in particular, not for transfer procedures. ⁹¹ However, enlarging offenders’ information rights would have served the rehabilitation objective without disproportionally compressing Member States’ regulatory autonomy on sentence execution. The execution states should be bound to forward the relevant information in all cases, and not only upon request, and the convicting states should be bound to forward these to the offender.

E. Safeguards of offenders’ trust-based relationship with authority

The final key aspect of the rehabilitation process is a trust-based relationship between an offender and the representative authority. Transfer interrupts the unity of the penalty and therefore interrupts such relations. ⁹² In order to minimize the detrimental effect that these interruptions, it was argued that transfers, where desirable, should occur as soon as possible in the course of the execution of the sentence. However, the deadlines set by the two FDs allow, in fact, to request transfers much later.

The Transfer of Prisoners FD does not set any limit on the absolute length of the sentence, for which transfers can be authorized. It only states transfer requests can be sent up to six months before the end of the sentence. ⁹³ The Transfer of Probationers FD allows requests to be sent at any point during the execution of the sentence, provided that the sentence itself is at least six months long. ⁹⁴ After a request is sent, respective deadlines of three months for prisoners ⁹⁵ and two months binding for probationers ⁹⁶ are set for authorizing and actually carrying out transfers. If these deadlines are not met due to ‘exceptional circumstances’, the EU texts simply require the requested Member State to alert the issuing state and to provide an estimated deadline for the transfer. ⁹⁷ The language of the framework decision is quite loose if compared with deadlines set, for instance, in EAW FD. ⁹⁸

In practice, what happens is that deadlines are often not met, and procedures can take, at least with respect to transfer of prisoners, up to a year after the request to transfer. ⁹⁹ Considering that there are no ‘length thresholds’, and thus that transfers can be requested also for short sentences, such as a 2-year or 18-month sentence, a transfer occurring after a year is already quite a late one.

Admittedly, delays can also occur for valid reasons, namely the need thoroughly to inform the prisoner, or the launch of an appeal. ¹⁰⁰ Yet they can also be due to incomplete and poorly-drafted requests or, interestingly, to different styles of drafting indictments. This was highlighted as a problem in prisoners’ transfers from the UK to Czech Republic. ¹⁰¹ The judges in the latter state struggled with English judges’ concise certificates and have had several times to send back transfer requests asking for further information. Another issue is that some Member States request the translation of the full judgement, even if this is not required by the EU texts. ¹⁰² Briefly, the law and the practice allow for situations in which transfers can take place long after the start of the execution of the sentence in the issuing state, fragmenting the prison sentence, and most problematically the probation supervision. ¹⁰³

On this point too, the FDs could have adopted more effective norms, securing the rehabilitative function of cross-border punishment, while still remaining within EU constitutional boundaries. Admittedly, delays due to inexperience with the procedure do not depend on the shape of the law, and will diminish with an increased use of the FDs, as well as with closer monitoring of compliance with the specific requirements (for example, not requesting full translation of the judgements). However, both FDs could have included the obligation to request transfers earlier in the procedure, or even contextually with the imposition of the sentence as advocated by some practitioners, ¹⁰⁴ unless it is the offender requesting a transfer. This would have better served the objective of rehabilitation, by eliminating structural reasons for late transfers, without disproportionally compressing Member States’ regulatory autonomy. Indeed, what is at stake is not whether the transfer should take place, but when.