A paper written by CEP board member Ioan Durnescu, Professor at the University of Bucharest/Faculty of Sociology and Social Work. Romania., Esther Montero Perez de Tudela, Deputy director at Huelva Penitentiary Institution, Spain, Luisa Ravagnani, [1] Researcher at the Department of Legal Studies, University of Brescia, Italy.
Abstract
This paper engages with the European debate on the position of foreign national prisoners in the context of the new European Council Framework Decision that facilitates prisoner transfers between the EU Member States (FD 909/2008). The study aims at capturing the views of 133 Romanian prisoners held in Italian and Spanish prisons and at exploring their intentions to engage or not with this new opportunity. One of the main findings of this research is that the explicit aim of the FD (social rehabilitation) is likely to be undermined by the understandable primacy that foreign prisoners give to the impact of transfer on time spent behind bars. Apart from this conclusion, the paper puts forward a number of policy and practice recommendations that would improve the position of foreign prisoners in European prisons.
Keywords: Foreign prisoners – Release – Conditional release – Framework Decision.
Introduction
This paper aims at analyzing how the Framework Decision 2008/909/JHA (on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union)(FD hereinafter) is implemented into practice in some of the EU countries. Gaps in the transpozition and implementation and also constructive solutions for an effective implementation will be put forward. The main contribution of this paper is the involvement of ‘user voice’ into the policy and academic debates around this subject.
As Spain and Italy are the most popular destinations for Romanian economic migration (795,513 Romanians in Spain[1] and aproximately 1 million Romanians in Italy[2], see also Sandu, 2010) it does not come as a surprise that the number of Romanian prisoners in 2014 in these two countries was quite significant – 1,849 Romanian prisoners in Spain (personal communication General Secretariat of Penitentiary Institutions, Spain) and 2,886 Romanian prisoners in Italy (personal communication Department of Penitentiary Administration, Italy). Statistics based on the nationality of the prisoners are available only in Spain where most Romanian prisoners are male (1,721) and between 22-40 years of age (1,442). The vast majority of Romanian prisoners in Spain are sentenced for theft (692) or robbery (479).
The significant number of Romanian prisoners in Italy and Spain and also the novelty of the FD as a technical possiblity and as a penal practice in Europe justify special attention from the academic and policy-making community[i].
Foreign prisoners and the Framework Decision
The problem of foreign prisoners is a well-established subject in the prison and human rights literature. Foreign nationals in prison were successively called ‘the suitable enemies’ or the ‘black of Europe’ (Wacquant, 1999), ‘prisoners within prison’ (Tarzi and Hedge, 1990), ‘forgotten prisoners’ (Cheney, 1993) etc. All these labels suggest different connotations associated with foreign prisoners in the penal imagery. Their problems of lack of citizenship are well documented: they suffer harsher and longer punishments (Bosworth, 2011), unequal prison treatment (Bhui, 2007), inadequate education and training (Evawoma-Enuku, 1991), language problems, lack of family contacts, self harm (Bhui, 2008), immigration uncertainties and lack of resettlement (Barnoux and Wood, 2013). All these problems are important obstacles in prisoners’ constructive participation in prison life and also in the resettlement process. Moreover, imprisonment of foreign prisoners contributes significantly to prison overcrowding. In Italy, for instance, 33% of the total prison population was made up of foreign prisoners in 2015[3]. In Spain, in mid-2015, that figure stood at almost 30% of the total Spanish prison population[4].
In order to respond to these obstacles, the Council of Europe adopted in 1983 the first cross-border agreement – the Convention of the Transfer of Sentenced Persons. According to this document, sentenced persons may be transferred only to the state of their nationality and only with the consent of the person. All Council of Europe countries ratified this Convention but its application was modest. As a result, in 1997 the Council of Europe adopted an additional protocol that stipulated that sentenced persons may be transferred to their state of nationality without their consent but only if expelled, deported or having fled the administering state. The application of this Convention is still limited due to the fact that only 36 countries ratified it and also because of the lack of time limits provided for the procedure.
With the stated aim of facilitating prisone transfer between EU countries in the hope of enhancing the prospects for social rehabilitation, Austria, Finland and Sweden initiated in 2005 a draft Council Framework Decision on European enforcement order and the transfer of sentenced persons between Member States of the EU.
Building on the mutual recognition principle – adopted in the Tampere European Council 1999 – the Hague Programme and also on the art. 31 and 34 of the EU Treaty, the Council adopted the FD in 2008 setting the date for implementation at 5th of December 2011. Only Poland asked for a derogation of five years in order to prepare the infrastructure needed for an effective implementation of the FD.
The aim of the FD is to ‘enhance the possibility of social rehabilitation’ by which the FD understands preserving the person’s attachment to the executing state to which they would be transfered. The person’s attachment is defined as ‘family, linguistic, cultural, social, economic or other ties with the executing state’.
In short, the FD provides (a) that the prisoner may be transferred with his/her consent to the Member State of his/her nationality and in which he/she lives or (b) that he/she may be returned to the Member State of his/her nationality through deportation of he/she was not living there at the time of the sentence. Transfer may also take place to another Member State (other than the one of the prisoner’s nationality) provided that the competent authority of that state consent.
The consent of the sentenced person is not required if the transfer is to the Member State of nationality where the person lives, to the Member State where the sentenced person will be deported or to the Member State to which the sentenced person has fled or returned in view of the criminal proceedings. Nonetheless, the sentenced person will be given the opportunity to state his or her opinion orally or in writing.
Due to the different traditions in Europe, the FD allows each Member State to nominate one or more competent authorities to deal with the transfer cases. When starting the procedure of transfer, the competent authority of the issuing (or transfering) state forwards a certificate (provided in the Annex of the FD) together with the judgment. Based on the mutual recognition principle and the transposition law, the competent authority of the executing (or receiving) state must make a decision within 90 days. The concrete transfer should take place in the following 30 days from the decision to recognize or enforce the custodial sentence.
The executing state can refuse recognition and enforcement only in certain cases: when the certificate is incomplete or does not correspond to the judgment, when the Member State is not the state of nationality or the sentenced person did not live on its territory, where the enforcement of the sentence would be contrary to ne bis in idem principle, when the prisoner was sentenced for an offence which is not defined as an offence in the executing state and where the executing state declared that it will check for double criminality, where there are immunity reasons which makes the enforcement impossible etc.
In cases where the sentence applied in the issuing state is incompatible with the law of the executing state in terms of its duration or its nature, the competent authority of the executing state may decide to adapt the sentence to the maximum penalty provided for similar offences under its national law or to another measure provided for under law for similar offences. However, the adapted sentence should correspond as closely as possible to the sentence imposed in the issuing state and should not aggravate the sentence passed in the issuing state.
Compared to the previous Council of Europe Convention, this Framework Decision presents some novelties. The first one is that transfer is possible without the consent of the sentenced person under the circumstances described above. The second one is that it provides some time limits for the procedure from the moment the certificate is forwarded to the moment of effective transfer. The third main novelty is that all the EU Member States are obliged to transpose and implement the FD according to the framework decided by the Council. In cases of non-transposition or a systematic distorted practice, the European Commission may start the infringement procedure at the Luxembourg Court. What is important to mention once again is that the formal purpose of the FD is not to displace unwanted groups of prisoners from one Member State to another but the social rehabilitation. The way the concept of social rehabilitation was constructed in the FD text is not without difficulties. For a detailed account on such difficulties see De Wree et al. (2009).
The purpose of this paper is not to debate the legal or philosophical merits and demerits of the FD but rather to engage with the subjective narratives of the people involved or potentially involved in this procedure.
Legal context in Romania, Italy and Spain
This section will briefly describe the relevant legislation in the three countries involved in this study. By relevant legislation we mean the transposition laws and the prison laws that impact on the subjective experience of the prisoners and their decision to transfer or not. In order for the Framework Decisions to be applicable in the judicial procedures they need to be transposed into the national legislations. The law that transposes the FD into the national legislation we called transposition law.
Romania
Romania transposed the FD into the domestic law (Law no. 300/2013) which came into power on 26th December 2013. As an executing state, Romania nominated the Ministry of Justice as a competent authority to receive the certificates and the judgments and nominated the courts of appeal as competent authorities to recognize and enforce the sentences coming from other member states. As an issuing state, the competent authority to forward certificates and judgments is the Ministry of Justice. The transposition law is very detailed in terms of time limits for each stage of the court procedure (e.g. hearings, decision, appeal etc.) so that the total time limit for the sentence to be recognized shall not exceed the 90 days limit provided in the FD. According to this law, the expression ‘where the person lives’ is defined as having the continuous and legal residence on the Romanian territory for a period of at least five years prior to the sentence.
A new prison law entered into force in 2015 in Romania (Law no. 254/2013). According to this law depending to the length of the prison sentence, the sentenced people could serve their sentence in maximum-security prisons, closed regime prisons, semi-open or open prisons. The regime is decided by a prison commission led by the director of the prison. After serving 1/5 of the prison sentence, the prisoner’s regime can be re-assessed by the same commission based on the prisoner’s behaviour, number of credits (earned as a consequence of taking part in work or other educative activities), risk of escape etc. During imprisonment, the prisoner has some basic rights such as: to be informed, to legal assistance, to practice his/her religion, to keep in contact with the outside world, to health services etc. Apart from these rights, prisoners may also benefit from some rewards (privileges), such as: more visits, more conjugal visits, prison leave for one, five or 10 days etc. Prisoners are also entitled to work – paid work — for the penitentiary institution or voluntary work. If they are paid, the prisoners are entitled to receive 40% of the income, the rest being transferred to the prison administration. In case the court imposed some compensation to the victim or other financial penalties, 50% of the prisoner’s income is directed to that end. Prisoners can also take part in different educative, therapeutic or other sorts of programs. For taking part in work or educative programs, prisoners can benefit from the sentence deduction (also known as the ‘earning days’ system). For instance, for four days of paid work five days are considered as served. For graduating one year of school, the prisoners can benefit of 30 days deducted from their sentence. The same applies for writing any scientific book. The general rule for conditional release is to serve 2/3 of the prison sentence if the sentence is less than 10 years and ¾ if the sentence is above 10 years. Good behaviour, being placed in the semi-open or open regime and paying compensation are also essential conditions for granting conditional release. The penitentiary commission led by a surveillance judge makes the proposal and the court decides if the prisoner can be released conditionally or not. A novelty of the new Penal Code is that all prisoners who are conditionally released with more than two years before ‘maxing out’ are automatically subject to probation supervision.
Before ending the brief presentation of the Romanian legal context, it should be also noted that The European Committee for the Preventing of Torture and Inhuman or Degrading Treatment or Punishment (CPT)[5] and also the European Court of Human Rights (ECHR)[6] are very critical about the detention conditions and the treatment of prisoners in Romania. Most of the criticisms are related to the overcrowding, the absence of a minimum 4 square meters per prisoner, insufficient rehabilitation programs, inadequate health services and lately staff impunity.
Italy
Italy implemented the FD 909 on time by adopting the Legislative Decree 161/2010. The structure of this legislative instrument is almost identical to the one of FD itself, apart for some very limited peculiarities. The primary aim of social rehabilitation remains the first and the most important meaning of the whole procedure, as it is recalled in many articles of the mentioned decree.
The Italian authority responsible for issuing requests for the transfer of the sentence abroad is the prosecutor. This authority proceeds with the transfer of documents on its own initiative as well as at the request of the interested person or of the Executing State. In dealing with incoming requests for transfers, the Court of Appeals for the District in which the sentenced person has his/her place of residence, domicile or dwelling is competent to decide on the request for the enforcement in Italy of a foreign judgment. The grounds for refusal stipulated in the FD text are regulated as mandatory in the Italian legislation.
With regard to specific provisions that regulate life in prison in Italy and can have some kind of influence in the decision of the offender to ask for the transfer (or to express a positive/negative opinion in relation to this possibility), it is worth mentioning the regime of early release. Italy applies a special rule that is different from the ones applied in the rest of Europe. This kind of special early release (called liberazione anticipata) means that instead of considering convicted persons eligible for early release when they have served at least two-third of the sentence, Italian law grants prisoners that have shown effective participation in the re-educational process (not just good behavior or compliance to the rules)a forty-five-day reduction of their sentence for every six months actually served (recently Law-Decree no. 146/2013 extended to seventy-five-day the reduction only for the period 1.1.2010-31.12.2015[7]). The commission of a new crime (after that the rule has been applied) can produce the revocation of the benefit itself. This reduction is decided by the executing magistrate and is subject to appeal.
The Italian legislation also provides other penal devices that replace or shorten the time spent behind bars. They are home detention (with or without electronic monitoring) and probation (called affidamento in prova al servizio sociale). One of the conditions that applies to these measures is to have a ‘fixed address’, an official address where the offender is supposed to live. As foreign prisoners typically do not have a fixed address, the Italian legislation provides the possibility for the voluntary sector to be involved in providing social housing services. The law does not regulate the service but recognises a practice that developed in time. By accessing these services, foreign prisoners can become eligible for all these forms of prison (and release) modalities.
Spain
Spain transposed the FD into its national law on the 20th November 2014 and it entered into force on 11st December 2014 (Act no. 23/2014). As an Executing State (the receiving procedure), Spain nominated the Central Criminal Judge as a competent authority to receive the certificates and the judgments and to recognize the sentences coming from other member states. The enforcement of the sentence falls within the competence of the Central Penitentiary Surveillance Judge[8]. As an Issuing State (the ‘sending’ procedure), the competent authority to forward certificates and judgments is the sentencing judge or court when the sentenced person has not started the enforcement of the sentence, or the Penitentiary Surveillance Judge of each province assigned to the Penitentiary Centre where the prisoner who is the subject of the possible transfer is placed[9], if the sentenced person has already started the enforcement of the sentence. Unlike Romania, there is no single and centralized judicial or administrative authority responsible for forwarding the certificates and judgments.
The Spanish transposition law is very detailed in terms of time limits for each stage of the transfer procedure (e.g. hearings, decision, appeal etc.) so that the total time limit for the sentence to be recognized shall not exceed the 90 days limit provided in the FD. Once the resolution of transfer is received from the executing state, the transfer must be implemented in 30 days (if there are no exceptional difficulties).
According to the Spanish law, the expression ‘where the person lives’ is defined in different ways depending of the context. Thus, concerning the cases where the consent of the prisoner for being transferred is not necessary (as Issuing State), the Spanish law uses a restrictive concept of the “residence country”, defining it as the “the State of nationality of the prisoner where he possesses links based on habitual residence and family, work or professional ties”. On the other hand, the consent for the transfer to Spain of a sentenced person will not be necessary when she/he is Spanish and resides in Spain, she/he will be deported to Spain once released, or when she or he has escaped or returned to Spain.
In accordance with the FD, the general rule is to request the consent for the transfer of the sentenced person and, in any case, her or his opinion will be required by the competent authority and taken into account. As Issuing State, the Spanish system of transmission of certificates for implementing the transfer of sentenced persons is conceived in a similar way to the European arrest warrant, since all sentencing judges or courts and all Surveillance Penitentiary judges – depending whether the enforcement of the sentence has started or not — can initiate the transfer process. Finally, art. 9 of the FD describes the grounds for non-recognition and non-enforcement as optional for the competent authorities of the executing States, but it is not a mandatory decision. In contrast, the Spanish law states the “refusal grounds of recognition” as mandatory, establishing that the Central Criminal Judge will refuse the recognition and enforcement of the judgments – sent by other Issuing States — when grounds for refusal exist.
The functioning of the Spanish Penitentiary system is regulated in the Penitentiary General Organic Law of 1979, which establishes as the aim of the imprisonment the ‘re-education and social rehabilitation’ of the prisoners. Based on this law, the Spanish Prison Rules of 1996 was developed in order to detail the prison regime and other aspects of the prison life. A key element of the regime is the concept of ‘scientific individualization’: each prisoner shall have an individual penitentiary treatment plan established by a team of experts. This technical team is composed on an educator, a jurist, a social worker and a psychologist and their mission is to prepare an individualized treatment program and to monitor the inmate during the sentence implementation. This technical team makes proposals concerning each inmate regarding classification, regime, conditional release etc. This proposal is discussed in front of the Treatment Board (composed of the technical team, the director of the prison, the treatment deputy manager, the head of medical service and one chief of the interior security area) which will then propose to the penitentiary surveillance judge or the General Secretariat of Penitentiary Institutions the decisions regarding classification, regime, prison leaves and so on.
According to the Prison Rules, there are three ‘degrees’ (or regimes) that are available to prisoners in Spain: the first degree, for the most dangerous offenders, is focused on security and restricted movement; the second degree, available to the vast majority of prisoners, is characterized by more freedom of movement inside the prison and the availability of many activities; and the third degree, or the open regime, is managed by the social integration centers (like probation services, in the rest of Europe).
After serving one quarter of the sentence, if the inmate has demonstrated good behavior and is classified in 2º or 3º he/she can enjoy ordinary leave permits (up to seven days)[10], with the purpose of preparing for life outside. Normally, ordinary leave permits precede the award of third degree and movement to an open environment. When recommending leave permits, the technical team is expected to look also at: the risk of reoffending, the risk of escape, the risk for the victim, the type of offence, the social ties (family or relatives), the existence of a fixed address or a foster home and so on.
Conditional release is considered as a suspension of the sentence, and the general conditions to get this benefit are to be classified in the third degree, to have demonstrated good behaviour and to have served ½ (in the case of sentences up to 3 years and first time offenders), 2/3 (when the inmate has developed internal labour, cultural or occupational activities continuously) or ¾ of the sentence.
As in Italy, in order to be classified in the third regime or to benefit from conditional release, prisoners should have benefited from leave permits. This penal device is meant to prepare the person for full release. One of the pre-requisites to enjoy the leave permit is to have a ‘fixed address’. As foreign prisoners do not comply with this condition, they are less eligible for these prison modalities or measures. In order to compensate for this deficit, some charities provide ‘foster homes’ for prisoners during exit permits. Apart from these measures, foreign prisoners may also benefit from conditional release in their own national countries. In this case they are not required to be in the third regime or benefited from exit permits.
During imprisonment, all inmates can enjoy all the rights recognized by the legal system (human rights, civil and political rights, etc.) except the rights affected by the sentence. They can perform several kinds of activities (workshops, handcraft activities, occupational works, sport activities, etc.) and they can be involved in all kinds of treatment programs (educative, therapeutic or other sorts of programs, such as those for drug-addicts, sexual offenders, domestic violence perpetrators, etc.); they can implement the obligatory education (which is a priority activity when the inmate has not achieved the basic education), the secondary education, languages courses, professional training and college education. Another important right for prisoners is access to paid work, if available in the penitentiary centre. Apart from these rights, prisoners may also benefit from some rewards (privileges) when, besides having a good behaviour, they take part in rehabilitation or work activities: they may receive more visits, more conjugal visits, meritorious mention in the prisoner’s file, anticipated cancellation of sanctions etc.
Upon release, prisoners who have served more than six months (181 days or more) are eligible for an allowance (public grant) to aid their reintegration process. This allowance is granted for six to 18 months and in 2015 it amounted of 426 Euros.
The research
The methodology
This study is an exploratory one aiming at collecting the subjective attitudes and opinions of Romanian prisoners held in Spanish and Italian prisons regarding the possibility of transfer (based on the FD). We believe that their attitudes and opinions are indicative for their positioning in relation to this procedure. In other words, the way they perceive this procedure will shape their behaviour in relation to transfer – in other words, whether they seek or oppose transfer, or agree to the transfer under some certain circumstances etc.
To capture their attitudes and opinions in relation to the FD procedure, questionnaires were applied in both Italian (n=5) and Spanish prisons (n=83) and also individual and group interviews were conducted in both locations (6 participants in Italy and 35 participants in Spain).
All questionnaires completed in Italy were applied in Verziano Prison. In Spain the questionnaires were applied in Huelva Prison, Salamanca Prison (Topas Prison), Lugo Prison (Monterroso Prison) and Algeciras Prison. The prison establishments were selected in such a way to ensure that there are Romanian prisoners held there and also following the administrative approvals from the Prison Headquarters.
In all these locations, all Romanian prisoners were invited to complete the questionnaire but for different reasons the return rate was not very high, especially in Italy. We estimate that only about 7-10 percent of all the Romanian prisoners invited agreed to take part in this exercise. From the interviews we understood that some Romanians feared that this questionnaire might commit them one way or the other in relation to transfer to Romania. Some others considered the topic not important to them and therefore did not see the merit in participating. Many stated that they would not like Romanian authorities to ‘know about their situation’ in Italy. In Spain some prisoners were on pre-trial detention and were not eligible for this research. There were also some prisoners very close to the release point who did not see the point in discussing the transfer.
The questionnaire was agreed between the authors and then translated into the Romanian language. The tool has six sections: demographics, social issues, offending history, criminal justice experience, participation in the rehabilitation activities and the transfer possibility. This paper will reflect mainly on the last section of the tool, which measured to what extent the participants were aware of the possibility of transfer to Romania to serve the rest of the sentence, who do they think is the beneficiary of this possibility, whether they would consider using this possibility for themselves and what would be the main obstacles and benefits for engaging with this procedure. In the last part of the questionnaire the participants were asked to provide suggestions for improving the procedure or its application.
The interviews aimed at developing or clarifying some topics that arose from the questionnaires. Questions were mainly organized around the intention of encouraging the participants to engage or not in the transfer procedure and what seem to them to be the major difficulties in this process.
In Spain, 35 Romanian prisoners were interviewed – 19 of them were individually interviewed and 16 of them were interviewed in two groups. All of them were detained in Huelva Prison and in Madrid. The individual interviews were conducted by the Spanish author while the group interviews were conducted by the Romanian researcher. In Italy, six Romanian prisoners were interviewed by the Romanian author in one prison – Brescia Prison. Only the group interviews were recorded using a voice recorder. For the other interviews the researchers did not obtain the necessary approvals for audio recording. However, notes were made during and after the interviews along with personal observations from the researchers.
The data from the questionnaires was analyzed using SPSS while the data from interviews was analyzed using applied thematic analysis (Guest et al., 2012).
Sample characteristics in Spain
Over a quarter of the participants were in the 36-40 years old category. Many of them left school between grades 5 to 8 (42.2%) or between grades 9 to 12 (41%). Most of them were married at the time of arrest (56.6%) and half of the married participants had their wives with them in Spain. Although 50.6% of the participants had children, 27.7% of the children were still living in Romania.
Over 75% of the Romanian participants in Spain stated that they come to Spain for economic reasons (‘to find a job’, ‘to find a better life’). 66.3% of them were employed in agriculture or construction industry at the time of arrest. Over 71% stated they have no previous convictions in Spain or Romania. Many of them were convicted for property offences (36%). 14.6% were sentenced for drug related crimes and 10.2% were in prison for violent crimes. More than 77 % of them stated that they had no deportation order imposed on them by the court which means they could stay in Spain upon release if they wish so.
Sample characteristics in Italy
Eleven participants were recruited from Italy. All of them were male, above 25. Most of them were sentenced for property crimes. As the prison authority in Italy does not collect data based on nationality, it was impossible for us to have information about criminal record. All of them came to Italy for economic reasons and only two of them were employed by the time of arrest. Four of the Romanian prisoners had an expulsion order imposed by the court.
The findings
As mentioned above this section will reflect how, why and to what extent the Romanian prisoners held in Spain and Italy engage with the transfer possibilities provided in the FD 909 and the subsequent national legislation.
- Knowledge
All prisoners who completed questionnaires or participated in interviews in Italy knew about the possibility of transfer. It seems that they were all informed by the prison staff.
However, in Spain only 61.4% of them knew about this possibility. In their case, half of them received this information from the other Romanian prisoners while the other half were informed by the prison staff. This difference may be explained by the fact that the transfer legislation in Spain was adopted at a later stage than in Italy.
When asked about who is the beneficiary of the transfer and how the procedure is organized it become obvious that the participants were lacking information or held contradictory or inexact knowledge about it. For instance, in Spain 61.4% of the respondents stated they have do not know who or what the transfer is for.
This observation was further consolidated during the interviews in both countries. When asked about how the transfer procedure can be started, participants provided many possibilities including filling a request to the Romanian Ministry of Foreign Affaires or submitting a request to the Romanian Embassy. The same goes when asked about the length of the procedure. In some cases the participants mentioned that they were informed that the procedure takes at least six months that demotivated them to even start the procedure.
Surprisingly, they did not know and even could not believe that in some circumstances foreign prisoners could be transferred back to their country of nationality where they have their habitual residence without their consent. They appear to understand the deportation procedure but could not understand how a European citizen could be transferred to another country without their consent and with no deportation order. Not knowing about this possibility could be explained in Spain since at the time of the research Spain had not transposed the FD 909 into its domestic legislation. Therefore, officially this possibility did not exist during the research.
- Engagement
When asked if they would be interested in starting the transfer procedure to Romania, 41% of the prisoners in Spain stated that they would do so. The reasons they offered for this estimation were to ‘be close to the family’ and ‘get more attention in prison’. When we explored this answer during the interviews, it become clearer that Romanian prisoners would like to be able to work more during the sentence in order to deduct the work time from the prison sentence. This facility is available in the Romanian legislation and facilitates the conditional release much sooner than in Spain. Interestingly enough, as one participant suggested, they would consider transferring to Romania even if their family remained in Spain:
‘Researcher: If the family is still in Spain would you like to transfer to Romania?
Participant: It does not matter if the family is here [in Spain]. They could move to Romania with me or they could send me money.
R: Do you think the family will follow you in Romania?
P: Evidently. If I come out to freedom sooner …’
(Participant in Huelva Prison)
Those not willing to engage with the transfer procedure stated that the main demotivating factor in the length of time required for the procedure and also the lack of predictability. This answer may look somehow counter-intuitive. In the end, they are in prison and they could use their time waiting to be transferred. However, as it was recently observed, one of the pains of imprisonment that is often overlooked is the deprivation of certitude (Warr, 2015), or ‘immigration uncertainty’ as defined by Barnoux and Wood (2013). Prisoners need to know how long they need to wait for a certain procedure so they can activate their coping strategies accordingly.
Only two out of 11 participants from Italy stated they would consider engaging with the transfer procedure. The main reason provided for that was ‘to be close to the family’. The others – those not interested in the transfer procedure – argued that the prison conditions in Romania, the length of the procedure and the better conditional release arrangements in Italy would discourage transfer to Romania. The last point was further elaborated during the interviews where only one participant stated he would agree to transfer to Romania in order to be close to his wife and two children. The other participants stressed that even if they have their families in Romania, they would prefer serving the sentence in Italy because they could be released much sooner than in Romania (especially after the adoption of Law-Decree no. 146/2013 which extended to seventy-five-day the reduction of the prison sentence).
- Recommendations
Participants were also asked if they would recommend this procedure to other Romanian prisoners and why they would do so. Some participants in Italy and Spain stated that they would recommend the transfer but only for those with long sentences, if their families are in Romania and only if the transfer would take place at the beginning of the sentence. In Italy, one participant was blunt about this: ‘if we start receiving privileges in Italy we are not interested in being transferred’. Furthermore, it became evident that if the release date is approaching in Spain, they would not be willing to transfer to Romania. As mentioned in the sections above, in Spain, released prisoners are entitled to receive a form of financial benefit for six months – extendable up to 18 months – (in 2015, 426 Euros per month).
As to their recommendations about improving the transfer procedure, the participants in both countries stressed that the duration of the procedure should be short, clear and predictable; it should start as soon as possible after the sentence is finalized; and prison authorities should be informed about the transfer procedure and able to offer information about the prison conditions and regime in Romania. They also suggested that counseling and advice from the consular authorities would be welcome. However, they emphasised that the main argument for transferring (or not) is related to release: if they can be released sooner in Italy or Spain they would not be willing to transfer.
To conclude this section, it seems that the main obstacles perceived by the Romanian prisoners in the transfer procedure are: the significant differences in the release conditions in Europe, the lack of accurate information regarding the procedure and its duration, the actual duration of it and the lack of information about the prison system and prison regime in Romania. Some of the recommendations formulated by the participants could contribute to a better understanding of the aim and the purposes of the FD and also could enhance the prisoner’s constructive engagement.
Conclusions
Based on the accounts provided by the Romanian prisoners held in Italy and Spain it seems that the transfer procedure is perceived as beneficial only if contributes to the reduction of the time spend behind bars or facilitates contact with the family. In this respect, Romanian prisoners held in Spain seem to be more willing to consider transfer to Romania because they could take up work in prison more often in Romania than in Spain and the work time is deducted from the prison sentence. On the contrary, Romanian prisoners in Italy were not interested in the transfer procedure because of the many possibilities of early release in Italy. Contact with the family usually came second as an argument for transfer. Even if family were still in Romania, prisoners would like to serve the prison sentence in Italy if this means being released sooner.
This ‘release effect’ can be attenuated partly only in case the transfer takes place at the beginning of the sentence (before the prisoners start enjoying benefits in the Issuing State), if the procedure is short, clear and predictable and prison conditions in Romania are known and get improved. However, the importance of prison conditions should not be overestimated. As one of the participants stated, this argument is subordinated to the one of release:
‘Researcher: So, you would go to the country that has a better law for release, right?
Participant: Yes, of course. Even if the food and the prison conditions in Romania are worse.’ (Participant in Huelva Prison)
Going back to the original question of prisoner’s positioning in relation to transfer, it became apparent to us that the Romanian prisoners perceive this procedure with some skepticism and are willing to actively engage with it only under certain conditions. In this process, the date of release plays an essential role. However, there are some factors that could influence their decisions.
Based on the suggestions coming from the participants, prison authorities in Italy, Spain and Romania could find some ways of designing the transfer procedure in a simple and transparent way. They could focus primarily on the Romanian prisoners who are at the beginning of their sentence, have their families in Romania and are willing to serve their sentence in Romania. At the same time, prison authorities could inform Romanian prisoners about the prison conditions and prison regime in Romania. By having this information, the Romanian prisoners could make an informed decision about the transfer. The information strategies could be based either on brochures[11] written in Romanian or on the consular authorities who could play an active role in providing accessible counseling and advice to the Romanian prisoners abroad. The conditional release arrangements in Romania could be further enhanced in a way that would make early release possible even sooner than at the 2/3 point. Anticipated release with electronic monitoring or with drug treatment could be placed at the ½ point of the sentence for specially selected prisoners. Probation services could be more involved in this kind of procedure in order to make the early release conditions closer to the Italian standards. By doing that, the Romanian authorities will provide Romanian prisoners equivalent conditions to those in Italy and also would decrease the prison overcrowding that is so much criticized by the Council of Europe Committee for Preventing Torture (CPT)[12].
These findings and recommendations should, however, be treated with some caution. Due to the small number of participants (especially in Italy) and (self) selection effects, this study may capture a more positive attitude towards transfer than the ‘real’ one. It seems to us that prisoners with some interest in or awareness of transfer may have opted into this study and they might hold from the start some positive expectations from the transfer procedure. Furthermore, this study was conducted in 2015 when the transfer procedure under the FD was in its infancy. This moment in time may explain why the knowledge about the transfer procedure under the FD was so inexact and limited. It may be that judicial and prison authorities in all countries involved in this study need more time to shape the system and make the prisoners aware of it.
Although this is an exploratory study and its conclusions cannot be extrapolated to the whole Romanian population in the Italian and Spanish prisons, it indicate what what seems to be subjectively important for some foreign prisoners when it comes to being transferred to their national countries for serving the prison sentences. One of the main findings of this study is that, in contrast to the aim of the FD (namely to increase social rehabilitation), the participants in this study stated that they would use the transfer opportunity primarily in order to decrease the time spent behind bars. The study also puts forward some suggestions on how the FD could be used more in line with the official purpose of rehabilitation. However, in the context in which some prison administrators may seek to use the FD for ‘getting rid’ of the foreign prisoners and foreign prisoners would like to use this FD to decrease the detention time, it is highly unpredictable how the official purpose of the FD will be fulfilled. This uncertainty is even more complicated by the fact that prisoner’s transfer is mainly a judicial procedure and therefore the sentencer’s opinions and attitudes are likely to play also an important role. This aspect may be a central topic for further research.
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[1] National Institute of Statistics Spain (INE), figures for 2014, available at: http://www.ine.es/en/inebmenu/mnu_cifraspob_en.htm
[2] National Institute of Statistics Italy (INSTAT), figures for 2014, available at: http://demo.istat.it/index_e.html
[3] World Prison Brief, available at: http://www.prisonstudies.org/country/italy
[4] Spanish Penitentiary Statistics, available at: http://www.institucionpenitenciaria.es/web/portal/documentos/estadisticas.html
[5] For the latest CPT report on Romania, visit: http://www.cpt.coe.int/documents/rom/2015-09-24-eng.htm
[6] For the only quasi-pilot judgment against Romania see the case Iacov Stanciu v. Romania: http://hudoc.echr.coe.int/eng?i=001-112420#{“itemid”:[“001-112420“]}
[7] This Law-Decree has been the consequence of the pilot judgment against Italy (Torreggiani et al. v. Italy) that the ECHR adopted in January 3rd 2013, in regard of the serious problem of overcrowding that Italy was facing. The seventy –five-day reduction, among other special measures has had the aim to decrease the number of people in prison by making the time spent in prison shorter than it was initially imposed by the court. On the other hand, it answered to the ECHR request of the introduction of compensation measures.
[8] The Judge responsible of the enforcement of the sentences is named in Spain “Penitentiary Surveillance Judge”. In all provinces there is at least one Penitentiary Surveillance Judge, who is responsible of ensuring the rights of people who are in prison, to monitor the execution of the sentence, and to correct, if necessary, the work of the Penitentiary Administration. In Madrid, the capital of Spain, there is a Central Penitentiary Surveillance Judge with jurisdiction in all Spain, responsible for the judicial review of prisoners whose crimes are under the jurisdiction of the National Court.
[9] Or, where appropriate, the Central Penitentiary Surveillance Judge, if the prisoner is under the jurisdiction of the national court.
[10] The Spanish Prison Rules state also the possibility of according programed exits -up to 48 hours-, regular or irregular prison leaves –up to 8 hours- in the framework of specialised treatment programs for inmates placed in second degree (art. 117), and, in any moment, extraordinary exit permit –in case of serious illness or the death of a close relative, wife delivery, etc.; normally for several hours and never for more than 7 days-.
[11] Such a brochure was already developed by the Romanian prison authorities and will be distributed soon in the Spanish prison system.
[12] See for instance the latest CPT report published at: http://www.cpt.coe.int/documents/rom/2015-31-inf-fra.pdf
[i] This paper was produced under the project Support for Transfer of European Prison Sentences towards Resettlement (STEPS2 Resettlement). Many people contributed with their ideas to the development of this paper. We are grateful in particular to: Carmen Garcia, Ioana Morar, Roberta Palmisano, Vicenzo Picciotti, Simona Popa, Miguel Angel Ruiz Albert and Ruiz Yamuza Florentino Gregori.