EU officially enacts Framework Decision on probation

Ministers of Justice of the European Union met in Council at Brussels on the 27^th November last and agreed two Framework Decisions, one on the transfer of prison sentences and one on the transfer of non-custodial sanctions and measures. Both apply the principle of mutual recognition of judicial decisions to judgements in criminal matters so that these decisions can be recognised and implemented in other Member States.

Up to the present, there has been no legal enforcement of probation supervision orders in another jurisdiction. Now this Framework Decision will permit non-nationals who commit a criminal offence but who wish to return to their home country to do so and be supervised there under the court order, rather than have to stay in the country of conviction. This is particularly appropriate where the crime merits more than just a warning or reprimand, yet a custodial sentence may be too severe and would occupy scarce prison accommodation.

One objective of the European Union is to provide citizens with a high degree of safety within an area of freedom, security and justice.  Inter alia, this is to be achieved by developing common action among the Member States in the field of police and judicial co-operation in criminal matters. One measure specified to promote this co-operation is the adoption of framework decisions. These create agreed structures and legal formulae to enable effective inter-State co-operation in the specific area, e.g. probation supervision.

The text of the Decision has to be agreed by all 27 Member States so that the Council can act unanimously. It is then mandatory for all States, there is no discretion to ratify or not. However, while the result to be achieved is binding on all states, the choice of form and methods is left to national authorities. So it must be transposed into national law to detail how it will operate in the State concerned. The need to do this represents both a challenge and an opportunity to probation agencies across Europe.

The Framework Decision on custodial sanctions, for which preparations started in 2005, spurred the development of the complementary Framework Decision on probation measures (started in late 2006). The thinking behind it is that a person who does not have his lawful and ordinary residence in the state of conviction should be able to serve the court penalty imposed in his native state. In other words: in an environment where there is ready contact with loved ones, friends and acquaintances, where he speaks the language and understands the culture.

The stated aim of Decision is to facilitate the social rehabilitation of the sentenced person. Therefore, the transfer of probation supervision implies that time and attention must be given to assess accommodation prospects, assist with employment or education, look into family and interpersonal relationships, arrange treatment perhaps, suggest appropriate leisure time pursuits, organise community service work to be performed. It is re-insertion into the offenders familiar milieu, but in a planned and monitored way.

The core procedures to be followed, criteria for different options, etc. are specified in the Framework Decision. The competent authority in the Member State where the offender is sentenced may forward the judgement/probation decision to its counterpart in the Member State where the sanction is proposed to be executed, accompanied by a standard certificate duly completed (form annexed to the Framework Decision). The competent authority in the executing State then has 60 days within which to decide to whether it recognises the judgement or not, and if it does, to take steps towards implementing it.

The order made by the court in the issuing State may have to be adapted to fit national law. This may be the case for instance when the sentence or the probation measure is ‘incompatible’  with the law of the executing State, e.g. where the sanction imposed is longer or more severe than is legally possible under the national law of the executing State. Once implemented, the offender is supervised by the probation agency in the executing State as if the order had been made in that State.  There are also procedures elaborated to cover modification of the original sanction, possible revocation and enforcement of a custodial sentence in the event of non-compliance with any probation requirement.

The Framework Decision entered into force on 16^th December last and all Member States are obliged to take whatever measures are necessary to comply with it by 6^th December 2011. Three years may seem to be a long time, but it will come on probation agencies in Europe very quickly if they don’t plan in advance. CEP is bringing the Framework Decision to the notice of probation agencies, urging that they become familiar with it and its implications and is ready to organise a network of representatives for co-ordinated preparation.

Each jurisdiction, each probation agency should consider how it will respond to the following issues that arise:

• Will extra staff be needed to implement the new legislation?
• If they are, how will they fit into the agencies organisational structure, i.e. will they be integrated into field teams or form specialised units?
• What records will have to be kept, and how?  A special database?
• What will the priorities be when implementation starts?  For example, ideally a pre-sentence report should be prepared and considered before the decision is taken to recognise the judgement.  However the tight time scale (60 days) will militate against that in many cases, particularly if the offender in question has not been dealt with before by probation.  Therefore a full assessment of social functioning and criminogenic attitudes/behaviour should be the first order of business when a referral is received.
• What procedures / interventions will be used?  Electronic Monitoring (when permitted by national law)?
• What kind of training of staff will be needed?  For whom, covering what topics, how frequently?
• To set up all the appropriate systems, what would the financial cost be?
• The likely time-scale for all these developments will be what?

It may be difficult to give an answer to these questions, as it is hard to estimate how many transfers are likely of what calibre of offender and coming from what countries. So research is needed to develop reliable estimates. Agencies, it is suggested, should liaise with counterparts in neighbouring jurisdictions, in order to identify and develop working relationships with key individuals, perhaps institute some shared training. CEP for its part will in coming months actively explore how it could best support its members in preparing for implementation of the Framework Decision.

EU law is now extended to cover probation for the first time. Therefore, judges and policy makers will be watching to see how the sector of probation responds. If there is a high level of failures or the impression is given that probation services don’t take it seriously, then referrals will dry up and the Framework Decision will become a dead letter. Yet if on the contrary, the view is that it works this would be a great opportunity to showcase probation as a valued option right across Europe, influencing positively those Member States where it is presently not much developed. Therefore the challenge is now to make transnational supervision effective.
David O’Donovan
Deputy Director of the Probation Service, Ireland

Please note that this is a general outline of the FD on non-custodial sanctions. It has not treated topics as the recognition by the EU of the competence of authorities to issue or to supervise the execution of non-custodial sanctions, or when a State can refuse to recognize a court order of the other, and what will happen then. These topics and more are mentioned in the full text of the Framework Decision, which you can find here.

The text of the Framework Decision is available in other languages of the European Union as well. You can find the Framework Decision in your language by going to http://eur-lex.europa.eu/JOIndex.do?ihmlang=en Then click on the language of your choice at the upper right of the page. In the next page you will find a bar for direct access to the Official Journal of the European Union. Now fill in:  year: 2008 / code: L / mandatory number: 337.In the pages that opens, scroll down to the bottom. On your right, you will see the number ‘102′. If you click that number, you will have the Framework Decision in the language of your choice (as you can see: Europe is a complex matter, but in the end, it works).