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

Abstract

This article aims to contribute to the debate on the functions and limits of cross-border punishment. It uses two existing FDs as case studies, namely on Transfer of Prisoners (2008/909) and on Transfer of Probationers (2008/947). These texts include promoting the rehabilitative function of punishment in cross-border cases among their objectives. However, they have been criticized for not being fit for their purpose and being just an instrument for ‘covert’ deportation of foreign offenders. This article argues that EU norms on punishment should be assessed considering the broader EU constitutional law framework, which requires EU norms not to compress disproportionately national regulatory autonomy (Art. 5 TEU). Against this background, it submits that some of the criticisable features of these FDs are not a neglect of the core objective of offenders’ rehabilitation but, in fact, the result of a legitimate balance with the interest of national regulatory autonomy. In broader terms, this illustrates that the Europeanization of criminal justice can help to ensure the certainty of punishment in transnational cases. Yet, due to some institutional limits, it can also compromise the effective achievement of all its functions.