The adoption of mutual recognition as the cornerstone of judicial cooperation in criminal matters in the EU has resulted in an extension of the acquis. A range of new legal instruments were designed to give effect to the ‘area of freedom, security and justice’ as envisaged by the Amsterdam Treaty. Amongst those instruments is the 2008 Framework Decision on the mutual recognition of judgements imposing measures involving deprivation of liberty for the purpose of their enforcement in the EU. The implementation deadline for that framework decision is set at the end of 2011. This Framework Decision immediately sparked discussions as to whether the operation of the instrument would be compatible with its very objective, being the enhancement of detained persons’ social rehabilitation prospects. Legitimate concerns regarding prison condition across the EU are not the only factor that has to be taken into account in this regard. Transferring detained people back to their respective member state of residence and/or nationality is somewhat precarious in light of the often substantial variety of member states’ legal systems with regards to sentence execution modalities and variations in member states’ provisions of early/ conditional release. Coupled to the fact that the Framework Decision implies a shift from a voluntary to an often obligatory transfer system where the consent of the detained person is no longer necessary, these differences could result in a deteriorated detention position for the detainee as a consequence of a transfer. Being aware of potential hazards, the European Commission called for the biggest study to date on member states’ material detention conditions as well as on early/conditional release and earned remission provisions and sentence execution modalities. This study was carried out by the Institute for International Research on Criminal Policy (IRCP).
This contribution analyses the results of this study in order to answer the question
whether or not the member states should implement this instrument as it is. It
concludes that member states should be encouraged to take account of correcting and
flanking measures whilst implementing the instrument in their domestic regulations.