Overall goals and fundamental rights
2.2. Goal of social
rehabilitation
Social rehabilitation should be seen as the main purpose
of transfers of prisoners. The impact on rehabilitation
is taken into account in the majority (at least 25) of
Member States. According to the Framework Decision
on transfer of prisoners, the authorities in the issuing
state may contact competent authorities in the executing state to inquire whether an individual’s transfer
would indeed facilitate social rehabilitation.91
Nelson Mandela Rules on social
rehabilitation
The UN Standard Minimum Rules for Treatment
of Offenders (SMRs), originally adopted in 1955,
were upgraded starting in 2011, culminating in the
adoption of the revised rules by the UN General
Assembly in December 2015. The SMRs were also
given the additional name of the Nelson Mandela
Rules.
The SMRs address social rehabilitation in quite
some detail, noting that: “the purposes of a sentence of imprisonment or similar measures deprivative of a person’s liberty are primarily to protect society against crime and to reduce recidivism. Those
purposes can be achieved only if the period of
imprisonment is used to ensure, so far as possible,
the reintegration of such persons into society upon
release so that they can lead a law-abiding and selfsupporting life.” (Rule 4 (1), emphasis added.)
The Nelson Mandela Rules go on to specify what
this means: “[P]rison administrations and other
competent authorities should offer education, vocational training and work, as well as other forms
of assistance that are appropriate and available,
including those of a remedial, moral, spiritual,
social and health- and sports-based nature. All
such programmes, activities and services should
be delivered in line with the individual treatment
needs of prisoners.” (Rule 4 (2), emphasis added.)
The SMRs also state that “it is desirable that the
necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may
be achieved, depending on the case, by a prerelease regime […] or by release on trial under
some kind of supervision which must not be entrusted to the police but should be combined with
effective social aid.” (Rule 87, emphasis added.)
Moreover, the rules stipulate that the “treatment
of prisoners should emphasize not their exclusion
from the community but their continuing part in
it. Community agencies should therefore be enlisted wherever possible to assist the prison staff
in the task of social rehabilitation of the prisoners.” Finally, they also assert that “There should
be in connection with every prison social workers
charged with the duty of maintaining and improving all desirable relations of a prisoner with his or
her family and with valuable social agencies. […]”.
(Rule 88 (1) and (2), emphasis added.)
Source: UN, Resolution adopted by the General Assembly, Standard
Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules), 17 December 2015; Council of Europe, Committee
of Ministers, Recommendation Rec(2006)2 with commentary,
11 January 2006
Some states believe that rehabilitation can be successful
either in the state of nationality or in another state. For
example, according to Austrian legislation, when strong
ties with Austria exist, it may be assumed that social
rehabilitation may better be achieved in Austria than
in a state of citizenship.92 Legislation in Spain states,
like the Framework Decision on transfer of prisoners,
that if the aim of rehabilitating the convicted person
is not achieved, this can be a reason for discontinuing
transfer proceedings.93 The same requirement applies
when Spain is the executing state.94 Correspondingly,
law in Finland provides that a prerequisite for a transfer
is that it promotes the sentenced person’s opportunities to reintegrate into society. Factors considered are
the person’s nationality, place of permanent residence,
personal situation and other special reasons that are
not further defined in the act.95 Family ties are the most
92
91
Council Framework Decision 2008/909/JHA, Art. 4 (3)
and (4).
Austria, Federal law on judicial cooperation in criminal
matters with the Member States of the European Union,
Bundesgesetz über die justizielle Zusammenarbeit in
Strafsachen mit den Mitgliedstaaten der Europäischen Union
(EU-JZG), 30 April 2004, para. 42 (b) (3).
93 Spain, Law 23/2014 of 20 November on mutual recognition
of criminal judgments in the European Union, Art. 74.1.b.
94 Ibid., Art. 78.3.
95 Finland (2011), Act on National Implementation of Provisions
Belonging to the Legislative Field of the Framework
Decision on Transfer of Sentenced Persons in the European
Union and Application of the Framework Decision
(Laki tuomittujen siirtoa Euroopan unionissa koskevan
puitepäätöksen lainsäädännön alaan kuuluvien säännösten
kansallisesta täytäntöönpanosta ja puitepäätöksen
soveltamisesta/Lag om det nationella genomförandet av
de bestämmelser som hör till området för lagstiftningen
i rambeslutet om överföring av dömda personer inom
Europeiska unionen och om tillämpning av rambeslutet)
1169/2011, 25 November 2011.
43
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