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

delinked the national from its State of nationality – and caused so much struggle for
doing so. 865
Thus the Framework Decision has the potential to become a tool for the regulation of
prison costs and prison population. Indirectly it can become a tool which permits the
attainment of migration policy goals such as the normalisation and compensation of high
flux of migrants in some countries. 866 Mitsilegas notes on this matter that
“Although the proclaimed aim of the Framework Decision is to facilitate the social
rehabilitation of the sentenced person, its real aim appears to be to alleviate the burden
of prisons in EU Member States…” 867
The lack of need for consent on the part of the executing State also suggests this
possibility. Furthermore, as seen in the previous section, the proportion of foreigners
(both EU and non-EU nationals) in prisons in many EU countries is a thorny issue that
Member States face. In fact, the risk that the Framework Decision might be used to
aliviate overcrowding in one Member State whilst exacerbating overcrowding in another
was noted by the Commission in its Green Paper on the application of EU criminal
justice legislation in the field of detention. 868 This was also a concern that some
countries have voiced very clearly. Poland, for example, being a country of origin of
many immigrants in Western Europe, asked for a derogation from the Framework
Decision in order to be able to cope with the possible impact of transfer of Polish
prisoners to Poland. Intent 11 of the preamble holds,
“Poland needs more time than the other Member States to face the practical and
material consequences of transfer of Polish citizens convicted in other Member States,
especially in the light of an increased mobility of Polish citizens within the Union. For
that reason, a temporary derogation of limited scope for a maximum period of five years
should be foreseen.”
865 M. Platcha, ibid., 359.
866 See G. Vermeulen, “Mutual Instrumentalization of Criminal and Migration Law from an EU
Perspective”(2007) 9 European Journal of Migration and Law 357.
867 V. Mitsilegas, “The third wave of the third pillar” (2009) 32 European Law Review 523, 542.
868 European Commission, Green Paper strenghtening mutual trust in the European judicial area
– A Green Paper on the application of EU criminal justice legislation in the field of detention,
COM(2011)327 final, Brussels, 14 June 2011, 6.
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