Failure of the Mutual Recognition of Probation Decisions in Spain? Reflecting on the Situation of the Sentenced EU National Foreigners

This paper analyses the level of implementation of the mutual recognition of probation decisions in Spain. Despite the significant number of potential beneficiaries of the measure (sentenced EU national foreigners), this mutual recognition instrument has barely been implemented as of 2018. In order to assess the reasons of this lack of implementation, this article begins by examining the objectives and goals of both the Framework Decision 2008/947/JHA and the Spanish Law No. 23/2014. Then, it shows how the social rehabilitation of the convicted individuals and the protection of victims and general public are critically related to the prevalence of deportation procedures of sentenced EU citizens. These deportations are based on a different rationality, in which national interests are given preference, and their prevalence in Spain has rendered the mutual recognition instruments irrelevant since a significant number of the sentenced individuals who stand to benefit from them end up being deported. This analysis lays bare an incoherent and contradictory system which neglects the constitutional purpose of custodial measures, the social rehabilitation of the sentenced individual.