Within the Sound of Silence. Dangerous Liaisons between Detention and Citizenship under European Union Law

by Leandro Mancano (*)

Many scholars have recently pointed out the need to revise those European Union (EU) instruments adopted under the former ‘third pillar’. This urgency has only grown after the expiring of the transitional period, occurred 1st December 2014, which resulted in issues of legal uncertainty as to which kind of legal regime is to be applied to such instruments (whether the pre-Lisbon framework, the post Lisbon rules or a ‘middle-way’ solution). In this context, three EU law instruments on detention deserve particular attention: Council Framework Decision (FD) 2009/829/JHA on supervision measures; Council FD 2008/947/JHA on probation measures and alternative sanctions; Council FD 2008/909/JHA on mutual recognition of custodial sentences (also known as FD on the transfer of prisoners).

Firstly, the Commission has rebuked Member States at the outset of 2014, in light of the weak state of implementation of these instruments (1). After one year, such report has been followed by updated information about the state of play of the implementation of these FDs, which testify that many Member States have not fulfilled their obligation of transposition so far (2). This raises concerns especially if one considers that detention has been increasingly playing a major role throughout EU law, establishing a potentially dangerous liaison with EU citizenship.

As shown below, the risky factor lies in the circumstance that many cross references have made between EU criminal law and EU citizenship. However, such connections are surrounded with a sound of silence, as their meaning and outline have not been sufficiently clarified hitherto.

The basic assumption which EU citizenship brings with it is that every Union citizen is entitled to move and reside freely within the Union regardless of their nationality, and without requiring a link to the performance of an economic activity.This can be inferred from primary legislation (in particular Articles 18, 19 and 21 of the Treaty on the Functioning of the EU), as well as Directive 2004/38/EC (also known as ‘Citizenship Directive’). On the one hand, under Article 16 of the Directive Union citizens are granted the right of permanent residence in the host Member State after legally residing therein for a continuous period of five years. On the other, Article 28 states that: those Union citizens (or their family members) who have the right of permanent residence in the host Member State, may be subject to an expulsion measure so long as there are serious grounds of public policy or public security; Union citizens who have resided in the host Member State for ten years may not be expelled from the host Member State, unless imperative grounds of public security, as defined by Member States, justify the measure. The provision also applies to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for the same timeframe.

The intersections between EU citizenship and detention may be traced back to a threefold track.

Firstly, the interactions between EU criminal law and EU citizenship that have already taken place, embodied by judgments such as Kozlowski and Wolzenburg delivered by the Court of Justice of the European Union (CJEU).

Secondly, the influence that national criminal law is exerting on EU citizenship law, which especially took place lately in Tsakouridis, P. I. and Onuekwere CJEU’s decisions.

Thirdly, the interactions between EU criminal law and EU citizenship which have not yet occurred, but might have a considerable impact on the persons concerned. In this latter case, the interplay might occur between EU citizenship and the EU legislative instruments above mentioned (FDs 2009/829/JHA, 2008/947/JHA and 2008/909/JHA).

Generally speaking, what emerges from these three trends is the pivotal function fulfilled by the concept of residence.

However, this post focuses on the third type of interaction between EU criminal law and EU citizenship. Indeed, the FDs referred to give rise to some considerations, as to their potential impact on EU citizenship. The FD on custodial sentences foresees, in certain cases, the transfer of prisoners from a Member State to another without requiring the consent of the sentenced person. The transfer may take place, inter alia, when the executing State is where the sentenced person lives. This potential obligation is grounded in the presumption that the social rehabilitation will better take place in the executing State (Article 6.2).

The system built on by the FD may attach to imprisonment drawbacks deemed too severe. Once the consent of the prisoner has been removed, the occurrence of a circumstance provided for in the FD would suffice to force the person out of the Member State where he/she is staying. In this respect, such a measure has been seen by Mitsilegas as resembling an expulsion from the Member State, but divested of the guarantees of the Directive 2004/38/EC.

Admittedly, the FD allows for a compulsory transfer, e.g. to the Member State where the prisoner lives. It seems that a rather strong link with the State in question is required. It might then be difficult if, for instance, the person concerned has already acquired the right of residence in the host Member State, at the moment he/she is imprisoned therein. Nonetheless, the risk may be that the FD lends itself to abuses. First and foremost, the meaning of ‘living’ is unclear: whether it may be equated with ‘residing’ or not, and what follows from each case. Articles 27 and 28 of the Citizenship Directive authorise expulsion of an EU citizen (namely, forcedly moving him/her from the host Member State) only when: an individual assessment has been carried out; the expulsion decision has been adopted on grounds of public policy, public security or public health. These two circumstances are always required, also when no right of residence has been secured by the EU citizen. Furthermore, pursuant to the Directive, previous criminal convictions per se may never constitute grounds for taking expulsion measures.

In this context, the FD makes no helpful references to Directive 2004/38/EC, save where the preamble states that the FD should be applied in accordance with the Citizenship Directive (recital 16). The consequences of such a statement remain unclear, since one may object that the transfer of a EU citizen from a host Member State might run counter to the requirements laid down in the Citizenship Directive.

Turning to the FD on probations decisions, it slightly increases the involvement of the detainee. The FD provides that the recognition of a probation measure is carried out as long as: the sentenced person has returned or wants to return to the State in which he/she is ‘lawfully and ordinarily residing’; the individual has opted for another Member State, with the latter having allowed for the execution (Article 5). Also in this case, the residence is put in the limelight. The concept at issue seems to fulfil a pivotal role, within the framework of the FD. The instrument discussed might significantly contribute to the social reintegration of the convicted person, with the latter being allowed to serve the sentence in the Member State to which he/she is most connected. This appears even truer once it is considered that the detainee may express a preference, with regard to the Member State which should recognise the measure. On the other hand, doubts arise as to which meaning is to be given to ‘lawful and ordinary residence’. It should be noted that Directive 2004/38/EC is not mentioned at all. The same holds true for any other secondary law instruments. So as things stand at present, there are no legal references capable of clarifying how to interpret the FD: whether a relation of residence between the prisoner and the Member State in question may be triggered by the sole individual preference, or whether the assessment must be grounded on objective factors, and if so, what such elements might be. One may hold ‘residence’ as outlined by the CJEU in Kozlowski or Wolzenburg, but no indications are supplied in this respect.

As I just tried to show, criminal law and EU citizenship interplay at different levels. Such a ‘dialogue’ has already found actual expression in many CJEU rulings. In other cases, as the discussed FDs make clear, the dialogue is as yet a potential one, but there is huge room for further and fruitful interactions. However, the FDs may provoke concerns in terms of legal certainty, inasmuch as these instruments are not straightforward at points which prove significant, as is the case of the definition of ‘residence’. Furthermore, the FDs are completely silent as regards the influence that the Citizenship Directive may have on them, so that much attention shall be paid to the way in which the CJEU will interpret such link and moreover to the EU willingness to “lisbonise” these Framework Decisions by taking in account the new legal framework arising from the entry into force of the European Charter.

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