The evolution of European Union criminal law (1957-2012)

instruments, namely the possibility of applying dual criminality in relation to any type of
crime – even one of the 32 listed types of offences. 852 The executing State can also adapt
the sentence in terms of its duration and of its nature (though measures shall correspond
as closely as possible with those applied in the sentencing State and the sentence shall
not be converted into a pecuniary punishment. 853 Finally, the executing State may refuse
the recognition and execution of the sentence in a number of cases, namely those of
incomplete or incorrect certificate, when enforcement would be contrary to the principle
of ne bis in idem, when there is immunity under the law of the executing State, when the
judgment was rendered in absentia, among other criteria. 854
Besides giving more room to the executing State, the Framework Decision also
continues to develop the trend of moderating mutual recognition in criminal matters by
introducing the idea of rehabilitation of the offender, a theme thus far largely absent in
the legal narratives of ECL. 855 In fact, the facilitation of reintegration or rehabilitation of
the offender by allowing for a custodial sentence to be served in the country of
nationality or residence has been developed by several instruments in Europe ever since
the 1970s. 856 However, the Framework Decision introduces some nuances to these
practices. Although the reintegration of the offender is stated as the main objective of
the Framework Decision, both the consent of the executing State (as seen) and the
consent of the offender are dispensed with in a large majority of cases (namely when
transfer is to be made to the country of nationality where the offender lives or to the
country of nationality where the offender is to be deported once the sentenced is served
regardless of where he lives). 857
852 Article 7(4), ibid..
853 Article 8 (2) and (3), ibid.. This adaption cannot lead to an aggravation of the sentenced
passed. Article 8(4), ibid..
854 Article 9, ibid..
855 See chapter 3 and 4. The CJEU however has on occasion made reference to the rehabilitation
of offenders as, for example, in Tsakouridis. In this case the Court noted that the wish for a State
to expel an offender once a sentence against him had been enforced had to take into account the
balance between the offender’s rehabilitation and the interests of the Union in general given that
such individual would be able to exercise his or her rights of free movement once expelled, case
C-145/09 ECR I-11979 [2010].
856 European Convention on the Supervision of Conditionally Sentenced or Conditionally
Released Offenders of 1964, ratified by 19 countries; European Convention on the International
Validity of Judgments of 1970, also ratified by 19 States; Convention on Transfer of Sentenced
Persons of 1983 ratified by 61 countries (including all States of the European Union, the United
States and Canada); additional Protocol to the latter from 1997 ratified by 31 countries; and the
Agreement on the Application between the Member States of the European Communities of the
Council of Europe Convention on the Transfer of Sentenced Persons of 1987.
857 Article 6 (2) of the Framework Decision 2008/909/JHA, supra note 845.
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