Working with the Framework Decisions in the German Federal State Bremen

When did the Federal State Bremen implement the Framework Decisions?

Framework Decisions are taken up at a national level, and implemented (usually) simultaneously across the 16 Federal Ministries of Justice in Germany. In Germany, Framework Decision 2008/947/JHA was transposed in 2014 by amendments to the Law on International Mutual Legal Assistance in Criminal Matters (IRG). According to §90 c Paragraph. 2 IRG with the consent of the person concerned, sanctions enforced in Germany or other alternative sanctions can be undertaken in another European Member State.

How many cases do you have?

We have zero official cases of 829 and 947, either as issuing or executing state, and this has not changed since implementation. However, we do have a handful of cases where there has been some interest in fulfilling license conditions in another European Member State, which have provided us with some initial experience in this field. Consequently these we have used as case studies in the PONT manual.

How does it work in Bremen with both incoming and outcoming cases? What kind of procedures do you have?

Again, Bremen has its own procedures which may differ from those practiced in the other 15 Federal German States.

829: Pre-trial detention may be applied for by the prosecutor’s office during a criminal investigation under German criminal procedure law, with the consent of the person concerned. The accused must be presented to a magistrate. The judge then has to order remand with a warrant. The order for pre-trial detention is governed by §§ 112 et seq. of the Code of Criminal Procedure (StPO).

Pre-trial detention is designed to ensure criminal proceedings. Pre-trial detention may only be ordered against an accused person if the accused is in urgent suspicion of being charged with the offense. In addition, pre-trial detention may only be ordered if the following grounds for detention are met: a. danger of absconding, b.) danger of dropping out of the system or c.) risk of recidivism.

If the accused person is suspected of having committed a particularly serious offense, remand detention may be ordered even without the above reasons. Particularly serious crimes include murder, manslaughter, particularly severe arson and the formation of a terrorist group. The arrest warrant will be canceled immediately if the prerequisites for pre-trial detention cease to exist.  Proportionality must be respected: the arrest warrant will also be set aside if it turns out that further pre-trial detention is disproportionate to the importance of the case and the expected sentence.

As a rule, pre-trial detention may not last longer than 6 months. It may only exceed the 6-month period if a judgment does not yet make it possible, due to the particular nature of the investigation or due to the specific nature of the investigation or another important reason. The accused may request the judicial review of whether to lift the warrant or suspend its execution.

947: Imprisonment of up to two years may be suspended and delivered as a probation sentence. The decision as to whether imprisonment is suspended to probation falls on the competent court. The duration of the probationary period can be from two to five years. The suspension of short and medium term sentence in favour of probation is designed to better achieve the sentence goal of promoting the rehabilitation and social re-inclusion of the convicted person.

In Bremen, the court with jurisdiction must draw up a social prognosis or legal prognosis as to whether the convicted person can no longer be expected to commit offenses without finishing their prison sentence. Probation can only proceed where the prognosis is positive. If the sentence of imprisonment is less than six months and the social prognosis is positive, the execution of the sentence should be avoided and the prison sentence should be suspended. If the sentence of imprisonment is six months to one year, the suspension of imprisonment to the positive social prognosis depends on whether the defense of the legal order is given.

In the case of imprisonment of more than twelve months up to two years, special circumstances must be present in addition to the positive social prognosis and the defense of the legal system. These special circumstances can be, for example, aspects of the reparation process, aspects which support social re-inclusion. These same processes will apply if the person is being granted early release for positive behaviour,

Do you have trained probation officers for these cases?

Simone Mattfeldt: There is no official training for Probation Officers in Bremen for these cases, in fact as a participant of the Expert Meeting it was very helpful to come to this expert meeting and contextualise some of my experience with the processes in place in other member states.

Rhianon Williams: Each of the 16 Federal German states look after their own judicial training provisions according to need, and training exists for 947 and 829 in other German Federal States, particularly larger ones such as North Rhine Westphalia (which has a population equivalent to the Netherlands). However, from what we know, this predominately seems to be directed at legal professionals, prosecutors and judges – rather than probation service employees.

Was the Expert Meeting useful for the probation service in Bremen?

Simone Mattfeldt: Yes, absolutely! It was really my first opportunity to go deeply into the subject matter with a transnational perspective, and it was really very useful to hear the experiences of other professionals in the room – both from a probation and a legal services point of view. I have returned to Bremen with a lot of additional knowledge to share with colleagues. I look forward to keeping in touch with others in the room, should cases come up with their countries. I also look forward to an exchange with our neighbouring Federal States in Germany, as we move towards the planned regional training sessions in the PONT project.

Rhianon Williams: From the point of view of the Ministry of Justice, this meeting was an invaluable overview of the key issues all EU Member States are facing, so that we can prepare and learn from them, and so go on to better support the Bremen probation services with the resources they need.

Simone Mattfeldt: We already know that we need to better support the implementation of these two Framework Decisions, but it was helpful to go through the issues such as difficulties with the filling out of the form, languages barriers. Something I think is very important for example in 829 is client consent, particularly in those cases where the client has a history of sexual or violent offenses. Here the prosecution may apply for remand without the consent of the accused and a consent will not be obtained – the accused deliberately withholds consent so that this information does not get communicated to other member states. In my opinion this should be re-worded or removed.

Rhianon Williams: From our perspective, transnational and national instruction on these FDs would be welcomed, particularly learning which integrates the perspectives of both prosecutors and probation services. We look forward to delivering 1.5 days’ training on this to our national colleagues in the spring, alongside probation services from neighboring countries with which we have a high exchange of business. This ‘clustering’ of training will also be beneficial.