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

The preamble explains this choice by explaining that,
“Notwithstanding the need to provide the sentenced person with adequate safeguards,
his or her involvement in the proceedings should no longer be dominant by requiring in
all cases his or her consent to the forwarding of a judgement to another Member State
for the purpose of its recognition and enforcement of the sentence imposed.” 858
To be sure, the person can be consulted but her opinion need not to be taken in
consideration. 859 Traditionally, the consent of the sentenced person was needed. 860 As
De Wree, Beken and Vermeulen point out,
“The abolition of a requirement for consent evokes an ambitious response. On the one
hand, it would not be difficult to accept that transfer to his home country is in a
sentenced person’s interest. (…) On the other hand, the Transfer Convention included
the requirement of consent because the legislator presumed that transfer without an
offender’s consent would be counterproductive to his rehabilitation.” 861
As the authors go on to argue this raises questions about the intention of the legislator. 862
In fact, with no consent procedure there is no room for a proper dialogue nor to an actual
understanding of the prisoners’ exact needs or concerns, which does not seem to be in
agreement with the objective of his reintegration. 863 Whilst the will of the prisoner is
very often to be returned to the State of residence and nationality this might not always
be the case especially if the countries at stake have very different detention conditions 864
or if there are political reasons for a prisoner to prefer to serve her sentence away from
her State of nationality or residence. Furthermore, as Platcha argues, this categorical link
with the State of nationality is inconsistent with the rationale behind the EAW which
858 Intent (5) of the preamble, ibid..
859 Article 6(3), ibid..
860 See Article 3 (1) (d) of the Council of Europe Convention on the Transfer of Sentenced
Persons, Strasbourg, 21 March 1983; see also E. De Wree, T. Vander Beken and G. Vermeulen,
“The transfer of sentenced persons in Europe – much ado about reintegration” (2009) 11
Punishment and Society 111.
861 Ibid., 118.
862 Ibid., 119.
863 M. Platcha, “Prisoner Transfer within the European Union: The European Enforcement Order
and Beyond” in N. Keijzer and E. van Sliedregt (ed) The European Arrest Warrant (The
Hague:T.M.C.Asser Press, 2009) 339.
864 M. Platcha, ibid., 355.
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