⬤ Context

​Cross-border execution of judgements involving the deprivation of liberty has been a reality within the European Union (EU) for years.

In fact, per annum, a non-negligible number of individuals are prosecuted or convicted in an EU Member State (MS) other than the one of their habitual residence or nationality. More concretely, in 2020, of the 1,528,343 inmates in Council of Europe Member States (MSs), approximately 15% were foreign inmates (Council of Europe, 2021). In particular, Belgium, Italy, Spain, France rank among the countries with the highest percentage of foreign inmates in Europe (Aebi & Tiago, 2021).

In the case of foreigners, EU judges are known to tend towards the application of custodial measures, thereby feeding pre-existing vulnerabilities and hindering the application of less coercive supervision measures (Hofmann & Nelen, 2020). In this context, Framework Decision (FD) 2008/909 offers notorious advantages for the rehabilitation, resocialisation, and reintegration of foreign-national convicted offenders –encompassing its guiding rationale (Flynn & Woods, 2015).

Understandably, transferring an individual to their home country or to a MS where they could benefit from social ties and a network of support presents substantially higher prospects for their rehabilitation than being made to serve their sentence elsewhere. In fact, “imprisonment in a foreign country […] may also be counterproductive as families may provide prisoners with important social capital and support, which improve the likelihood of successful resettlement and reintegration” (UNODC, 2012).

Yet, this FD still suffers from a lack of activation due to a considerable lack of awareness and understanding of how to use it. In fact, and as discernible by the statistics developed by the RePers Project, countries such as Austria, Belgium, Portugal, Poland, Germany, and France reported less than 50 activations of the instrument between 2014 and 2018 altogether, Romania being the country that used the instrument the most (Montaldo, 2019).

Hence, the special rehabilitation needs of foreign-national inmates are not considered to the desired extent, resulting in suboptimal services offered during the execution of prison sentences. These become, in turn, not as effective in pursuing rehabilitation goals during custody.
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To that extent, an upscaled awareness and adequate resort to this FD, jointly with the concise application of Directive 2016/680, would largely promote the rehabilitation and reintegration of this group of particularly vulnerable individuals.