Judicial supervision of foreign nationals in the EU: Can technology help overcome the challenges?

Since 1995 and the entry into force of the Schengen Agreement, Europe has seen a prosperous era where citizens can freely move between 27 countries [23 European Union (EU) Member States (MS) plus Norway, Iceland, Switzerland and Liechtenstein] (Schengen Visa Info, 2023). Now part of the EU acquis and enshrined in Article 45 of the Treaty of the Functioning of the European Union (TFEU), freedom of movement has, nonetheless, opened the door for EU citizens to be tried and convicted outside their country of origin or habitual residence.

Council of Europe Annual Penal Statistics, namely the Space II Report about non-custodial sanctions and measures, identified that, in 2021, in Europe, an average of “6% [of probationers] were foreign citizens” while “15% of the inmates placed in European penal institutions were foreigners” (Aebi et al., 2022).

In this line, evident challenges to the rehabilitation of convicted individuals emerge – be it due to the absence of meaningful links to society in the country of conviction or to clear language barriers (Tudela et al., 2020). By putting forward a simpler mode of transferring the execution of probationary or alternative measures (Article 1 of FD 2008/947) and advocating for stronger mutual cooperation and trust between EU MSs (Recital 2 of FD 2008/947), Framework Decision (FD) 2008/947 tries to offer a response to said challenges.

This instrument sits on the core belief that resocialisation is significantly more effective if conducted in a place to which the convicted person holds meaningful ties, ultimately resulting in a more humane and dignified rehabilitation process. (Recital 8 of FD 2008/947)

What is preventing the widespread application of the European legal instrument on the transfer of the execution of probationary or alternative measures?

Despite the clear value awarded to Framework Decision 2008/947 , its implementation has been far from the desired (Wahl, 2019).  Several reasons may be appointed to this phenomenon: practitioners tend to focus on (1) the strenuous bureaucratic nature of the procedure (e.g., difficulties associated with the issuing of the required certificates); (2) the absence of effective dedicated communication channels for the transfer of important information regarding both the national legal systems of each EU MS and the convicted individual; (3) the lack of cooperation and, fundamentally, mutual trust among Member States (Tudela et al., 2020).
 

It bears mentioning that the encountered difficulties are intrinsically connected, and, as such, an effective response should adopt a holistic approach.

The role of technology and concerns about data protection

In this light and considering the mainstreaming of technology within society and the growing rates of technological literacy, a possible solution may well sit the integration of Information and Communications Technology (ICT) into the FD 2008/947 transfer process.
 

For instance, aside from the creation of informative materials, initiatives like the European Judicial Network1J-CAP Project or the EU Probation Project2, which propose to explore the potential of the virtual world, are paramount. Such initiatives are developing online platforms that translate acquired knowledge into comprehensive and easy-to-use tools. These have, in some cases, taken the format of comparative systems that allow practitioners to look at different EU legal systems and get access to readily available relevant information on the existence of equivalent or similar probation or alternative measures.

Such platforms allow for a faster and more efficient application of FD 2008/947 and facilitate the implementation of best practices, identified by practitioners, for instance, in focus groups held within the scope of the J-CAP project, such as adapting sanctions ab initio to best fit the legal system of the Executing State (ES).
 

As significant as these solutions might be, it is important to note that they are only as useful as they are acknowledged by the targeted audience, i.e., judges, prosecutors and lawyers. Hence, the role that new communication channels can play here is crucial. They allow one to reach large numbers of persons, with a targeted and filtered approach. Additionally, social media and newsletter-style mailing campaigns allow for creative ways to ensure dissemination and permit effective and well-thought-out dissemination campaigns that contribute to enhancing awareness of the subject.

Similarly, by making use of new platforms that came to the fore in the COVID-19 pandemic period (Iqbal, 2023), it is possible to promote online joint cross-border activities between practitioners such as conferences, transnational awareness-raising symposia, moot courts, and roundtables. These allow for the conversion of practices and, ultimately, the engraining of core principles such as mutual cooperation among Member States.

In addition, practitioners point out that lack of trust in the penal system of the ES is often a deterring factor for implementing the cooperation-focused FDs. In this context, activities in line with the abovementioned and promoted by the J-CAP project, strive to foster informal networking and communication that contribute to building and/or restoring faith in other systems and close the gap that tends to hinder cooperation in criminal matters

Finally, the integration of technology and new communication channels between competent authorities could potentially and greatly improve the transfer process, allowing for a faster, streamlined and more informed approach. As per Article 6 of FD 2008/947, this, however, would necessarily entail transborder online processing of personal data of convicted individuals, in the transfer procedure (e.g. the Issuing State is required to forward the judgment accompanied by a certificate).

The respect for “fundamental rights and adherence to the principles recognised in Article 6 of the Treaty on European Union” (recital 5) is an underlying objective of FD 2008/947, as such “personal data processed when implementing this Framework Decision should be protected” (recital 23).

However, the lack of EU Court of Justice jurisprudence regarding FD 2008/947, but also the fact that this FD entered into force in 2008, essentially means that more recent regulations on data protection, such as General Data Protection Regulation (GDPR) Directive 2016/680 (LED), have not been duly accounted for. This matter remains relevant given the type of data processed when implementing Framework D  2008/9473 .

Judicial cooperation in criminal matters implies the processing of personal data. However, data should be processed in a secure and confidential way. This may well include the prevention of unauthorised access to or use of personal data. Herein, state-of-the-art technology should be available to competent authorities, so as to prevent data breaches to the best of their ability (Recital 28 of LED).

This new data protection revolution awarded data subjects with a set of rights and data controllers with new obligations that need to be acknowledged to ensure the lawful transfer of judicially sentenced individuals. Most relevant to the transfer of probationers one should identify the right to information, whereby the data subjects should be informed about the purpose and legal basis of data processing, the identity and contact of the controller and other relevant information regarding his/her rights (Articles 12-14 LED) and right to rectification of innacurate or incomplete personal data (Article 16 LED).

Regarding data controllers, one should highlight data protection by default and by design (Article 20 LED)4 , the obligation of logging, namely the “collection, alteration, consultation, disclosure including transfers, combination and erasure” of data (Article 25 LED), and the requirements to guarantee security of processing and to notify the data subject in case of a data breach (Article 30-31 LED). Furthermore, principles such as fairness, proportionality, lawfulness, transparency, and data minimisation must be respected (Leiser & Custers, 2019).

Concerns about data protection should, however, not be seen as obstacles to the implementation of FD 2008/947, but rather as precautionary measures that guarantee its lawful and transparent application, safeguarding the rights of the convicted person. J-CAP, amongst other projects, is also committed to assessing how EU practitioners are taking this challenge into account, as it may pose  a future hindrance stemming from the more frequent implementation of the mentioned FD.

Framework Decision 2008/947: Today’s progress to support the level of implementation and success of the legal instrument

From providing practitioners with a fast track to relevant information to promoting meaningful communication and trust amongst EU legal systems and practitioners, ICTs should be at the forefront
of transborder collaboration, especially when referring to criminal matters. The success of the Schengen Information System II further corroborates this (European Union Commission, 2023).

Nonetheless, the migration to the technological poses concerns of data processing that should be duly accounted for. Here LED can provide a solid framework that will ensure that FD 2008/947 is applied lawfully and proportionately, potentially even helping mitigate some of the concerns associated with the instrument when it was issued.

It is important to refer to the valuable contribution of projects such as J-CAP. The latter responds to the European Commission’s political priorities advocating not only for a quantitative increase of the instrument’s application, but also privileging a qualitative approach regarding its implementation.

1 Tools like the Judicial Atlas, Fiches Belges and Judicial Library are extremely useful and user-friendly for practitioners. EJN has been identified as “the best place for EU practitioners to find relevant information about mutual recognition instruments applicable at UE level” (Presidency of the Council of Europe, 2019).

2 The EU Probation Project has set up a comparative search tool that allows practitioners to confirm the existence of equivalent sanctions in the different MS

3 For instance, the certificate includes data on, inter alia, Name, Sex, Nationality, Social Security, place of birth and residence. (See Annex I and Annex II to FD 2008/947). Additionally, biometric and health related data may be processed in FD 2008/947 transfers. These imply a more zealous care insofar as they constitute special categories of personal data as provisioned under Article 10 LED.

4 Under Article 20 LED, Member States should ensure, taking into account the state of the art and cost of implementation, as well as scope, purpose and risks associated with the processing of data, that by design and by default data is processed in a lawful manner.

References

o   Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union.

o   Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions.

o   Desai, V. (2019). Digital Marketing: A Review. International Journal of Trend in Scientific Research and Development (Ijtsrd), (Special Issue | Fostering Innovation, Integration and Inclusion Through Interdisciplinary Practices in Management), 196–200.

o   Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA

o   European Union Commission. (2023). Schengen information system. Migration and Home Affairs. Retrieved February 24, 2023

o   ISSN: 2456-6470

o   Gomes, C., Duarte, M., & Almeida, J. (2003). Crimes, penas e reinserção social: Um olhar sobre o caso português. Actas Dos Ateliers Do Vº Congresso Português De Sociologia Sociedades Contemporâneas: Reflexividade e Acção Atelier: Direito, Crimes e Dependências.

o   Iqbal, M. (2023, January 9). Zoom revenue and Usage Statistics (2023). Business of Apps. Retrieved February 24, 2023

o   Leiser, M., & Custers, B. (2019). The Law Enforcement Directive: European Data Protection Law Review, 5(3), 367–378.

o   Porporino, F. J., & Robinson, D. (1992). Can Educating Adult Offenders Counteract Recidivism? Research and Statistics Branch Communications and Corporate Development Correctional Service of Canada.

o   Presidency of the Council of Europe. (2019). (rep.). The way forward in the field of mutual recognition in criminal matters – Policy debate (Ser. JAI 590). Brussels.

o   Schengen Visa Info. (2023, February 13). Schengen area – the 27 member countries of the Schengen Zone. SchengenVisaInfo.com. Retrieved February 24, 2023

o   Tudela, E. M. P., Ruiz , C. G., García, L. A., Ríos, B. M., & Alises, G. F. P. (2020). Literature review on the Council Framework Decision 2008/947/JHA of 27 November 2008 and the Council Framework Decision 2009/829/JHA of 23 October 2009.

o   Université de Lausanne, Ecole des Sciences criminelles, Aebi, M. F., Cocco, E., & Hashimoto, Y. Z., Probation and Prisons in Europe, 2021: Key Findings of the SPACE reports (2022). Strasbourg and Lausanne; Council of Europe.

o   Wahl, T., Council: The Way Forward in the Field of Mutual Recognition in Criminal Matters (2019). EUCRIM. Retrieved February 24, 2023

Luis Matos is a Consultant & Researcher at IPS_Innovative Prison System’s International Judicial Cooperation (IJC) Portfolio. The IJC team works on procedural rights and International Judicial cooperation by developing research on EU criminal justice Directives, Framework Decisions and mutual recognition instruments, specifically in harmonising practices among the Member States. Luis holds a Law degree from the University of Porto, Portugal, and a master’s in Globalisation and Law from the University of Maastricht, The Netherlands.

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