Bordered Rehabilitation? The “Right” to Rehabilitation of Non-Citizens in a Post-National Polity

• In Event: Towards a European Penology: Foundations, Key Principles and Challenges

Abstract

In recent years, social rehabilitation has become one of the most prominent features of European penology. A key role in setting precise boundaries to this concept has been played by Europe’s two top courts, the ECtHR and the Court of Justice of the EU (CJEU). Against this background, the paper investigates social rehabilitation as a principle of supranational and European law. It does so, by contrasting the jurisprudence of the two courts while dealing with issues as diverse as prisoners’ right to family life and the eligibility to early release in the event of long-term and life prison sentences. Despite their differences, both Courts converge in conceptualizing social rehabilitation as a fundamental right of the individual, thus breaking away from a purely utilitarian and correctional approach to rehabilitative practice. Nonetheless, significant differences can be highlighted through a content analysis of the jurisprudence. The case law of the ECtHR is permeated by a universalistic afflatus, as rehabilitation is cast as an all-encompassing right which stems from the overarching value of human dignity. In turn, in the context of EU law, rehabilitation is shaped as a procedural notion that allows the forcible removal of EU citizens from a host Member State to their country of origin. Social rehabilitation is premised on the existence of social bonds that, EU law presumes, can be upheld only within a convict’s native community. This view reflects a communitarian approach to rehabilitation as non-citizens are presumed to be unfit for rehabilitation in a polity other than that of origin. The paper explores the dualism between universalism and communitarianism in the context of European penology, drawing on a long-term analysis of legal materials as well as on interviews and questionnaires with practitioners involved in cross-border cooperation involving the transfer of prisoners and probationers across different European countries.

Author

• Adriano Martufi, University of Pavia