Framework Decision on pre-trial supervision: what it means for the probation sector

The EU enacted this Framework Decision (2009/829/JHA) in continuation of two other Framework Decisions (2008/909/JHA and 2008/947/JHA) which were adopted one year earlier. These decisions were on the transfer of prison sentences and on the transfer of non-custodial sanctions and measures in EU Member States. The new Framework Decision (FD) also is based on the principle of mutual recognition of judicial decisions to judgements in criminal matters in all EU Member States. It enables a person who is subject to criminal proceedings in a Member State other then his resident State, to be supervised by the authorities in the State in which he is a resident whilst awaiting trial. Leo Tigges, Secretary General of the CEP, perceives this FD as very positive for the probation sector in Europe. “It is a new and challenging development which enables probation services in Europe to demonstrate what supervision in the community can achieve”. Firstly, a positive consequence is that the person subjected to criminal proceedings who is not a resident in the trial State is more likely to be treated in the same way as a person that is a resident of the State. “At the moment transfer of supervision is not yet possible, a person without accommodation in the concerned State is often given provisional detention. “The new Framework Decision has as objective to monitor the defendants’ movements in the community instead of unsupervised movements or provisional detention. This monitoring contributes in a safer community. As a consequence these measures might even turn out cost-reducing as monitoring is less expensive then provisional detention”, notices Leo Tigges.

This EU mandate in criminal proceeding is an opportunity for probation services in Europe. “The position of the probation sector will become more important, as cooperation between probation authorities and justice is needed and probation authorities will occupy an advising role in the proceeding”, says Leo Tigges. “Besides, probation authorities will have to collaborate with counterparts in European Member States. Even States where supervision is not part of Probation will have to create this situation so that the FD can be implemented in all Member States”. The EU formulated in its mandate clear protocols regarding the execution on the transfer of supervision. A decision on supervision measures should be recognized within 20 working days of receipt by the competent authority in the executing State. The executing State is obligated to take all necessary measures for monitoring the supervision measures without any delay. A.M. van Kalmthout (2009, p.93) reproduces in ‘Pre-trial Detention in the European Union’ a table that shows a range of non-custodial alternatives that have been developed and applied in various countries. House arrest, electronic monitoring and undergoing treatment are examples of alternatives to pre-trial detention.

“For successful implementation every Member State should take the Framework Decision seriously”, claims Leo Tigges. Commitment is required as different probation services need to work and communicate together in different official languages. This requires adjustment of the operation procedures which could be achieved by sharing proceeding information. Next to that, effective collaboration is desirable because of the strict time limits in which the Member States operate. “Probation services might even consider opening a ‘branch’ in other Member States in order to collaborate directly with the local probation services there. As such, the executing state can react faster on the decisions of the issuing state”, reflects Leo Tigges. “Another obstacle to be conquered will be the cooperation with the Member States judicial authorities. For instance the judges play an important role in the success of the execution of the Framework Decision as well. It is depending on the courts’ decision whether supervision measures are being imposed instead of provisional detention. Judges might perceive this Framework Decision as rather complicated and be suspicious about the execution of the supervision measures in the executing State. The court doesn’t want to take the risk that the defendant doesn’t show up for his trial. It could take some time to gain the confidence of the judges. That is also why Probation services should take the implementation process seriously and act professionally”.

By organizing conferences CEP will support the implementation of the Framework Decision. CEP will use at the same time a part of the output of the conferences yet been held about the other Framework Decisions, because they are also about mutual recognition. “In order to set the agenda for the next steps on the implementation process as efficient as possible, there will be worked on both Framework Decisions at the same time in the conferences to come”, tells Leo Tigges. Mutual knowledge of the different national systems is essential in the case on transfer of probation supervision. CEP will contribute in gathering knowledge about how the systems of the Member States are corresponding to each other. The first step will be an updated version of ‘Probation in Europe’ (Kalmthout & Durnescu, 2008) later this year. This book is providing a comparative overview of all European probation service systems. Based on these results CEP could drive the agenda for successful implementation as well.

“The probation sector should give this task priority”, recapitalises Leo Tigges. “These developments are a good opportunity to gain a better reputation, more respect and appreciation throughout Europe regarding probation services. CEP will do its utmost to encourage a successful implementation with regard to mutual recognition on supervision measures and reminding all Member States of the importance”.