Transferring community sentences to other countries: does it work?

Five years ago offenders were given the right to serve a community sentence, that was imposed in another European jurisdiction, in their own country. How does it work? We asked Gerry McNally, Assistant Director of Operations at the Irish Probation Service and since recently CEP President. “I believe that as more and more people in criminal justice systems in Europe get acquainted with the idea that transferring probation measures within Europe benefits both the individual offenders as the communities they live in, the Framework Decision 947 will be used more and more.”

 

Why is the Framework Decision on the transfer of probation measures between EU Member States important?

“Let me give you an example from my own country. Ten percent of all people living in Ireland were not born here. Many come from Eastern Europe and are settled in Ireland. If, for example, a Romanian person living in Ireland goes on holiday to Romania and commits a relatively small crime, what options does the judge in Court have? A jail sentence, or a strong admonition before letting him go? Both are unsatisfactory. A jail sentence would mean this person would be punished more severely than a Romanian person living in Romania and who committed the same crime. Letting him go would be just the opposite. Framework Decision 947 makes it possible for a Romanian judge to effectively sentence him to a community sanction that the offender can complete in Ireland.

 

Will Ireland be happy to carry out the community sentence for a Romanian judge?

“Yes, as soon as Ireland has transposed Framework Decision 947 into Irish legislation and commenced it the Probation Service will implement it fully. Probation measures work most effectively if they are carried out in the community where the offender lives. The Framework Decision  is also good for strengthening rehabilitation by providing for the completion of the community sanction in the person’s home jurisdiction . The ultimate goal of any probation measure is to make sure that the offender does not offend again. If that is what you want, you should carry out probation measures and community sanctions in the best possible way.

 

In the example outlined above that would be in Ireland. Framework Decision 947 states that the ‘executing state’ should accept probation orders from the ‘issuing state’. There is room for adaptation where community sanctions differ. For example, if the Romanian judge sentences a person to 700 hours of community service that order would have to be adapted as in Ireland the maximum community service order is 240 hours. Another example. The Netherlands has electronic monitoring as a community sanction. We don’t have that in Ireland as a community sanction at present. If a Dutch judge wants to sentence an Irishman to a probation measure to be served in Ireland, it will have to be something else than electronic monitoring or adapted.”

 

How did Framework Decision 947 come about?

“It began in 2006, I understand. Courts in Strasbourg and in Kehl, French and German cities just across the Rhine from each other, both had a lot of offenders ‘from the other side’ but limited probation measures or community sanctions for offenders from the other side. A mutual recognition instrument or a way, by which offenders could be given the possibility to serve their probation time or alternative sanction in their home country was seen as desirable. A previous limited European mechanism from 1964 had not been widely used and needed updating.

 

This growing need, at a time of increased mobility and travel across the Europe, led to a discussions within the European Union: shouldn’t we make it possible for all offenders within the EU to complete probation measures and community sanctions where they live? After long and careful discussions Framework Decision 947 was signed at the end of 2008. All member countries were given three years to transpose the Framework Decision into national law. How they would do that was up to the Member States. But doing it was mandatory. There is no discretion to ratify or not Framework Decisions are EU legislation to be transposed.”

 

Did all the Member States succeed in changing their national legislation in time?

“No, they didn’t. Ireland, for example, still hasn’t done so. We are one of the last due to legislative pressures and complexities but transposing into Irish law is in progress. Almost all Member States have now transposed Framework Decision 947 into national law. The challenge now is to promote knowledge and experience of using it in practice. Legal professionals and persons before Courts should be aware of the possibility to completing probation measures and community sanctions imposed in the person’s home jurisdiction if they wish.

 

In Ireland we have a long history of probation and the Probation Service and community sanctions supervised by the Service are well established and used in practice. The Probation Service is experienced in voluntary arrangements for supervision across borders. In practice, Ireland has quite a long history of transferring probation measures and community sentences back and forth with Northern Ireland, Scotland and England and Wales and some other jurisdictions. Such voluntary arrangements have been very successful. People moving to their home jurisdiction see the benefits and are largely co-operative. Solutions are found in the few cases where enforcement is necessary.

 

The Probation Service has had an International Desk since 2010 as a single point of contact to provide information and facilitate transfer. And we have been working with all other EU Member States according to the Framework Decision since 2010 and indeed, hosted the first CEP seminar on Framework Decision 947 in 2009.”

 

There are other Framework Decisions on similar topics…

“The most important with direct relevance to Probation agencies is Framework Decision 829 on supervision measures as an alternative to pre-trail detention, adopted in 2009, implemented since December 2012. If a person from one country commits a crime in another Courts used to be inclined to keep this person in custody until the trial had been finished in the belief that there would be little guarantee that this person would return for trial. This has led, in some jurisdictions to high numbers of foreign nationals on remand in custody. L Framework Decision 829 on supervision measures as an alternative to pre-trial detention the German judge provides for a foreign national to return to their home jurisdiction while awaiting trial and provides mechanisms for enforcement in the event of non-compliance.

 

Where Framework Decision 829 has been used so far the compliance to return for the trial is high. It has the additional benefit of reducing prison populations and costs for the trial jurisdiction. However the use to date is limited as knowledge and experience in practice is very limited and not all jurisdictions have transposed Framework Decision 829 into national legislation as yet. Framework Decision 829 has the potential to be a very important and valuaable mechanism for courts, prisons and also for persons appearing before courts for trial.”

 

Is the Framework Decision on the transfer of probation measures a success?

“Framework Decision 947 is already a success and will grow in practice to be an important part of normal criminal justice practice across Europe and knowledge and experience in practice grows.

 

I believe more and more people in criminal justice systems in Europe become familiar with the idea that transferring probation measures within Europe benefits both the individual offenders as the communities they live in. That awareness is very important at this stage, I think.

 

The number of measures and sanctions that are being transferred at this moment is still relatively small. We need to increase these numbers and conduct research to evaluate practice and outcomes Data are already being collected at this moment.

CEP is using its network to promote knowledge and experience in practice is using the provisions of Framework Decision 947 and support best practice. Within the ISTEP project (Implementation Support for the Transfer of European Sentence) a comprehensive European handbook has been compiled to help Member States to implement the Framework Decision.

 

CEP has organised an expert meeting to discuss practical problems in working with the Framework Decisions and how these problems can be dealt with.

 

The European Judicial Network (EJN) has a website with a lot of information about Framework Decisions.

 

Clearly, there still is quite some room for improvement. But the progress is ongoing, slow but persistent. We must aim that in, say, ten years time, you can walk into any courtroom in Europe and talk about the transfer of community sanctions and everybody will know what you’re talking about and deal with it efficiently.”

 

 

Updated: 19 July 2017 — 11:54
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