Back into the history of probation: Probation in Europe 1927

This article is written by Ioan Durnescu.

After the United States had adopted the American Federal Probation law in 1925 and England signed the English Statute Book of the Criminal Justice Act in 1925, the author decided that it was a good time to see if other countries went through the same kind of developments.

Trought collected information about 29 jurisdictions in Europe, based on a rather simple questionnaire. According to him one of the most fundamental difficulties was deciding the definition of probation. How can you say if a country has a probation system or not? Trought stated that the following elements are essential for a probation system: prevention of crime, reformation/re-education of offenders, the existence of a probationary period, the existence of diagnosis and treatment and also the involvement of the community. Based on these criteria, nineteen countries had a probation system in Europe at that time.

After the publication of Trought (1927), many other books were written about the development of probation in Europe.

1980

In November 1980, the Dutch Association for Probation Work Institutions organised a conference in Ulm, Germany, with the aim to find ways to improve the cooperation between other Western countries on working with foreign offenders. As stated in the foreword: “In order to meet the clearly felt need of mutual information concerning the organisation, the working methods and the legal foundation of probation work, it was also decided to publish a manual on probation work in Western Europe.” (Klenke et al, 1981:6). In order to make the cooperation possible, the justice administrators, including probation staff, had to be familiar with the different law systems within Europe. This information was considered as critical for all international proceedings: extradition, exchanging and taking over criminal procedures, execution of foreign sentences etc.

Cooperation between different jurisdictions was also the topic of an important Council of Europe Convention (European Convention on supervision of conditionally sentenced or conditionally released offenders no. 51/1964). Once ratified by the national states, offenders sentenced to conditional sentences in one contracting party, could be supervised in another territory.

To reflect all these changes, the book ‘Probation in Europe’ edited by Cartledge, Tak and Tomic-Malic (1981) was published. In this book data are collected about fourteen European countries based on three main topics: law enforcement and the administration of justice, the organisation of the probation system and the working methods. One of the last sections in the last chapter was dedicated to the implementation of the Council of Europe Convention.

One of the main conclusions in this edition of ‘Probation in Europe’ was that there are two main probation systems: one typical for the common law countries and one for the continental countries. Even within the same category, the probation systems are defined by a wide variety of features, which makes it “very difficult and even delicate to give a legal definition of probation that is acceptable to all countries and all penal systems” (Cartledge et al, 1981:20). However, they took the risk of writing what is one of the most well known definitions of probation today:

‘Probation is a method of punishment with a socio-pedagogic basis, characterised by a combination of supervision and assistance. It is applied under the free system to offenders selected according to their criminological personality and their receptiveness, in relation to a system whose aim is to give the subject the chance of modifying his approach to life in society and to take his place in the social environment of his choice without the risk of violating a penal norm again.’

(Cartledge et al. 1981:22)

2003

Eight years after the Iron Curtain was removed and the Berlin Wall was demolished. Penal policy in most of ex-Soviet or ex-Communist countries was very much focused on imprisonment. Therefore the prison rates in these countries were skyrocketing and the associated problems, like overcrowding and the lack of human rights started to show. As part of humanisation of the criminal law, many Eastern European countries have initiated deep reforms, this includes setting up probation systems. This process has triggered a need for reliable and up-to-date information about probation systems in the region. As a respond to this need, two books were written. In 2000 Probation and Probation Systems: a European perspective (van Kalmthout and Derks, 2000) was published and in 2003 a new edition of the Probation and Probation Services in the EU accession countries (van Kalmthout et al, 2003). As in the previous books, the authors used eight topics to describe the countries: general information, legislative basis, the organisation, working with offenders, funding, client’s rights, recent developments and main addresses and publications. The explicit aim of the second book was to “offer information about the experience of countries in the rest of Europe and lessons learned through these efforts that may be useful to these and other jurisdictions in revising the legal and practical framework for criminal sanctions” (van Kalmthout et al, 2003; Preface). One of the most important conclusions was that there is a wide palette of probation systems in the European Union countries and that much depends on the legal and cultural background of each country.

Soon after that edition, in 2008, van Kalmtout and Durnescu (2008) edited a new edition of ‘Probation in Europe’, reflecting probation systems in almost all the European countries, 32 jurisdictions in total. In most of the European jurisdictions probation means providing judicial authorities with high quality information, enforcing the sanctions and supervising offenders and offering assistance or practical help to offenders. New trends became visible: providing victim support, mediation, an increased ‘technologisation’ of probation with tools such as for risk assessment, programs etc. As the number of probationers has exceeded, the number of prisoners decreased in Europe. For the first time it was acknowledged that probation plays a central role in the criminal justice systems across Europe.

Update

CEP has started publishing updates from the 2008 edition of ‘Probation in Europe’. This current edition is also introducing vertical comparison (Morgenstern and Larrauri, 2013), in which the systems in different jurisdictions are described in their interaction with the norms of the Council of Europe – i.e. the European Probation Rules, adopted in 2010. Another innovation of this current edition is that authors are required to write the country’s chapter as new important developments are taking place. This is mainly the reason why there is not yet an updated version of the chapter on England and Wales. Radical changes are taking place in this jurisdiction and it is not yet clear how these transformations will shape the form and the practice of probation in England and Wales. New legislation is also expected in Denmark, Moldova and other European states. Therefore these chapters will be developed at a later stage. Once they are ready, they are uploaded on the CEP website and available within hours and not weeks or months as it would happen if a paper edition would be published. In order to facilitate a better understanding, a comprehensive glossary of terms was created and added to the annex of the book.

Looking at ‘Probation in Europe’ from an historic perspective one can observe the instrumental role played by this book in clarifying the role and the place of probation in the criminal justice system. Furthermore, it looks like ‘Probation in Europe’ served as a platform for penal policy transfer many times . This observation became more obvious after the 2008 edition, when more and more exchanges of ideas and practices between European systems were noted. One good example is the practice of risk assessment. Although at the beginning it was seen as a neo-liberal practice specific for only some jurisdictions, nowadays almost all European probation services are using the tool in one way or another. The same goes for the suspended sentences. At the beginning of the 20^th century, this device was rather specific to the continental law countries. Today, nobody is surprised to find it in the British legislation as well.

The book can also be read as reflection of the challenges of a particular historical time. From this perspective it is fascinating to see that some old themes are recurrent. For instance, the pioneering work that probation services have to provide in order to get the society’s support, seems like a constant concern. We found this idea over and over again especially after the 1981 edition.

Continuing on these historical considerations, we hope that Probation in Europe will remain a reliable source of information regarding the probation systems in and around Europe. We also hope that the book will continue to reflect past and future developments that contribute to the offender desistance and public safety.

Do you want to dive into the history of probation in your own country, click here to read the Probation in Europe 1927 chapters.