In recent years, the aim of offender rehabilitation has grown to become one of the most prominent features of European penal policy. European legal texts, however, lack a clear definition of this concept, thus leaving to supranational Courts the responsibility of clarifying its meaning. This article analyses the case law of European Court of Human Rights and the Court of Justice of the European Union as regards rehabilitation. It argues that the Europeanization of criminal justice is generally contributing to a re-conceptualization of this aim of punishment with relevant implications for the national criminal justice system and its actors. Finally, the article underscores the differences in the approach to rehabilitation between the two Courts, trying to assess their potential impact on national law and their significance in the broader context of European penal policy.

In this article, we take issue with the echr standards on pre-trial detention. These standards are considered panacea for the reported overuse of pre-trial detention in Europe. They focus on the legitimate purposes of detention as safeguards to ensure the principle of ultima ratio. Yet these purposes are heterogeneous as pre-trial detention protects the pending proceedings but also averts risks pertinent to criminal policy. In our analysis we discuss the shortcomings of the echr standards to fully protect from abusive detention. Moreover, we reveal internal inconsistencies with the presumption of innocence. One major example is the use of pre-trial detention to prevent re-offending, which blurs the boundaries between custody on remand and preventive detention. Additionally, we delve deeper into the obligation to use milder measures as part of the echr standards, which remains superficial and vague. Conclusively, we encourage the reflection and re-examination of the echr standards for pre-trial detention, instead of focusing merely on their better enforcement.

This article provides an analysis of the Framework Decision 2008/909/JHA on the transfer of sentenced persons in the European Union (EU). Particular emphasis is placed on the provisions in the Framework Decision which makes direct or indirect reference to the aim of ‘social rehabilitation’. While this aim of punishment is referred to as the main rationale for transferring prisoners to another member state, it can be argued that the EU instrument fails to provide adequate safeguards against a potential misuse of the procedure. In particular, due to the increased automaticity of transfer proceedings, there is a risk that national authorities may not conduct a case-by-case assessment of the sentenced person’s situation. This sits at odds with the necessity of individualization underlying the rehabilitative ideal and may give rise to fundamental rights infringements. In the conclusion, a series of policy recommendations are put forward to increase the protection of the person’s interest to social rehabilitation.

In the groundbreaking decision Aranyosi and Căldăraru, the Court of Justice of the European Union (CJEU) recognised that in exceptional circumstances, the risk of a possible breach of the right not to suffer inhuman or degrading treatments may qualify as a ground to suspend a European arrest warrant (EAW) and, ultimately, bring the surrender procedure to an end. In this judgment (and in the subsequent decision in LM, dealing with the right to a fair trial), the Court has devised a two-tier test to assess the real risk of a violation of fundamental rights after surrender. Yet the Court has left significant discretion to executing authorities in conducting their assessment of risk, thus raising questions as to how the two-tier test would be implemented at the national level. To address some of these questions, this article examines the practice of the executing authority for the Netherlands (the District Court of Amsterdam) concerning decisions on EAWs that may entail a real risk for fundamental rights. To do so, we analyse the judicial reasoning of decisions issued between June 2016 and June 2020 which implement the tests designed by the CJEU in Aranyosi and LM. The results of this analysis indicate that the Court of Amsterdam has gradually shifted the emphasis from mutual trust to fundamental rights. However, the Dutch court resists automaticity and scrutinises the relevance of any information attentively. This attitude indicates a readiness to engage in a dialogue with the issuing authorities together with resistance to indulge in ‘blind trust’.

This editorial seeks to introduce the special issue Towards an Evidence-Based Approach to Pre-trial Detention in Europe. It explains the state of the field surrounding the legal practice of pre-trial detention and why an interdisciplinary approach is warranted. Pre-trial detention is an instrument in criminal procedure that has been reportedly overused in several European systems, but the reasons remain partly unexplored. While legal scholarship continues to focus predominantly on the legal framework, more disciplines are involved in the way this applies in practice. This special issue gathers contributions from political scientists, (forensic) psychologists, criminologists and jurists who approach this phenomenon from different angles and therefore provide a deeper and more evidence-based understanding of how its practice operates. The special issue is structured along four themes highlighting the trends in scholarship regarding pre-trial detention, namely decision-making, risk-prediction, legal culture, and harmonisation. The editorial elucidates the narrative of the special issue and briefly presents the key points of each contribution.