State responsibility when transferring non-consenting prisoners to further their social rehabilitation Lessons learnt from the asylum case law

With the adoption of the 2008 Framework Decision, the EU has awarded ‘the furthering of social rehabilitation’ a new position in the context of the transfer of prisoners. The novelty consists of it being the guiding principle for the “unconsented” transfer of prisoners. Unconsented transfer of prisoners to their home state is now possible if the sending state has satisfied itself that such transfer furthers the social rehabilitation of the prisoners involved. This research looks into the legal and practical functioning of transfers conducted for the furtherance of the social rehabilitation. Drawing upon case law in relation to similar transfer mechanisms in asylum cases, it is established that Member States that use the 2008 Framework Decision and transfer non-consenting prisoners are vulnerable to state responsibility claims not only in relation to Art. 3 ECHR violations, but possibly also in relation to the social rehabilitation programmes available in the receiving state. In practice it is not possible to adequately substantiate that a transfer would further social rehabilitation and therefore it is not possible to avoid state responsibility. Therefore, it is argued that in order to avoid a deadlock, the proper functioning of the Framework Decision on the transfer of prisoners requires flanking measures specifically targeting the social rehabilitation of prisoners