Co-funded by the European Union. Reducing Prison Population: advanced tools of justice in Europe JUST/2013/AG/4489

Transcription

1 Co-funded by the European Union Reducing Prison Population: advanced tools of justice in Europe JUST/2013/AG/4489 TRANSNATIONAL LITERATURE REPORT DRAFT VERSION This publication has been produced with the financial support of the Criminal Justice Programme of the European Union. The contents of this publication are the sole responsibility of the authors and can in no way be taken to reflect the views of the European Commission.

2 Contents Overview of the legal and policy framework on alternatives to imprisonment at the European level (H. DE VOS, E. GILBERT, SUPERVISION PROF. DR. I. AERTSEN, Leuven Institute of Criminology on behalf of the International Society for Criminology) p. 003 National report - Italy (PROF. R. BISI, PROF. R. SETTE, Cirvis-SDE, University of Bologna) p. 038 National report - Germany (A. BÄHR, PROF. A. HARTMANN, F. STEENGRAFE IPoS).. p. 056 National report - Romania (Generatie Tanara (Unga-Liv)... p. 089 National report - Bulgaria (A.MOMCHILOV- Crime Prevetion Fund IGA).. p. 108 National report - Latvia (I. KRONBERGA- Centre for public policy PROVIDUS)... National report - France (PROF. M. HERZOG-EVANS & M. Boesel for International Society p. 123 for Criminology)... p. 146 National report - Scotland (D. BULS, PROF. R. FREEMAN Scottish Oral Health Improvement Prison Programme (SOHIPP) University of Dundee)... p. 166 Comparative country report... p

3 Overview of the legal and policy framework on alternatives to imprisonment at the European level Introduction On 19 April 2001, a major turn took place in the European Court of Human Rights case law. In response to the case of Peers v. Greece, the Court declared that miserable prison conditions in this case consisting of a high level of overcrowding resulting in poor living space, inadequate ventilation and a lack of hygiene could constitute a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and this without any positive intention of humiliating or debasing the applicant (Peers v. Greece, 2001). This judgment made clear that many more Member States of the Council of Europe risk to be convicted if they fail to take steps to tackle the problem of overcrowding. Despite this European case law, overcrowding remains a major problem in many European prisons. This paper discusses European policies that aim to reduce prison overcrowding, with particular attention to non-custodial sanctions and measures as alternatives to imprisonment. The paper is divided into four sections. The first section provides a short overview of the extent of the problem. Both overcrowding rates and figures on the use of non-custodial sanctions and measures are presented. The second section deals with the nature of prison overcrowding and its causes. The third, and most important, section covers a wide range of existing measures that are intended to reduce the prison population. With respect to these measures, we first look at alternatives to imprisonment in the phase of pre-trial and post-trial detention. Subsequently, we briefly mention other measures that may reduce prison population. The next section provides an overview of the role of victims in this context. Finally, we discuss measures that exceed the scope of criminal justice proceedings and establish the link between penal and social policies in Europe. For the purpose of this report, the focus is primarily on European regulations, both the legally binding legislation and so-called soft-law. At the level of the Council of Europe, the legally binding legislation consists of conventions that are ratified by the Member States. The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) is ratified by all Member States of the Council of Europe, since this ratification is a 3

4 requirement for membership (Council of Europe Treaty Office, 2014; Snacken, 2010). As will be discussed below, the rights contained in this Convention are guaranteed by the European Court of Human Rights. In addition, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987) is of particular importance with regard to overcrowding and is also ratified by all Member States. Other conventions (indirectly) relating to prison overcrowding are the European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders (1964), the European Convention on the International Validity of Criminal Judgments (1970) and the Convention on the Transfer of sentenced Persons (1983). With regard to the so-called soft law of the Council of Europe, the following four recommendations are of particular importance with respect to prison overcrowding and alternatives to imprisonment: Rec(92)16 on the European Rules on community sanctions and measures, Rec(99)22 concerning prison overcrowding, Rec(2000)22 on improving the implementation of the European rules on community sanctions and measures and Rec(2010)1 on the Council of Europe Probation Rules. Even though they are not legally enforceable, we attach special attention to these recommendations for at least two reasons. First, the vision of the Council of Europe on prison overcrowding is reflected in it, and second, the European Court refers to these recommendations in its case law, giving them indirectly a binding character and strengthening their authority in general. Besides the Council of Europe regulations, the case law of the European Court of Human Rights on the one hand, and the Annual General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on the other hand, are valuable instruments with regard to prison overcrowding. As already mentioned, the European Court ensures compliance of the ECHR. Since this Convention can be invoked by all inhabitants of the Council of Europe, including detainees, the case law of the European Court has not only an enormous geographical scope but also a significant impact on the living conditions in European prisons (Snacken, 2006, 2012). A crucial provision in relation to prison overcrowding is Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Not only the European Court, but also the CPT ensures the compliance with this article. The CPT was set up in 1987 under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee is authorized to visit (periodically or ad 4

5 hoc) all places of detention in all Member States and to move inside these places without restriction (CPT, 2014). The reports on these visits complement the judicial work of the European Court. In addition to these national reports, the CPT has also published Standards for the Treatment of Prisoners and Annual General Reports (CPT, 2014). At EU level, the mutual recognition to judgments can be considered as a measure related to prison overcrowding. One 2009 Framework Decision and two 2008 Framework Decisions EU instruments by which the Member States are required to achieve expected results regulate this mutual recognition to judgments: (1) Framework Decision of 2009 on the Application, between Member States of the European Union, of the Principle of Mutual Recognition to Decisions on Supervision Measures as an Alternative to Provisional Detention; (2) Framework Decision of 2008 on the application of the Principle of Mutual Recognition to Judgements in Criminal Matters imposing Custodial Sentences or Measures Involving Deprivation of Liberty for the Purpose of their Enforcement in the European Union and (3) Framework Decision of 2008 on the Application of the Principle of Mutual Recognition to Judgements and Probation Decisions with a View to the Supervision of Probation Measures and Alternative Sanctions. As a non-binding document, the Green Paper on the application of EU criminal justice legislation in the field of detention (COM(2011) 327 final) is noteworthy because it reflects EU ideas on prison overcrowding and alternatives to imprisonment. At UN level, finally, both binding and non-binding instruments were adopted and are, of course, also relevant for the European context. Regarding the legally binding instruments, we can refer to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) and the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2006). Subsequently, four non-binding instruments are interesting: the Standard Minimum Rules for the Treatment of Prisoners (1977), the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment (1988), the Basic Principles for the Treatment of Prisoners (1990) and, most important in this context, the United Nations Standard Minimum Rules for Noncustodial Measures (The Tokyo Rules, 1990). Finally, it is useful to consult the reports from NGOs on this topic. The most influential NGOs working on this issue are the Association for the Prevention of Torture, the International Centre for Prison Studies, Amnesty International, the Confederation of European Probation, Penal Reform International and the Howard League for Penal Reform. 5

6 1. Prison overcrowding in Europe and its alternatives: facts and figures The SPACE I and SPACE II reports provide annual figures concerning, respectively, prison population (together with useful information concerning the conditions of detention) and non- custodial sanctions and measures. They are part of the SPACE project and provide an overview of custodial and non-custodial activities in the Member States of the Council of Europe. Forty-seven out of the 52 Prison Administrations of the 47 Member States filled in the latest standard SPACE questionnaire 1, the annual survey of the SPACE project, in order to collect national raw data and comments (Aebi & Delgrande, 2014a). The reports contain recent ( ) figures from all the participating Member States, as well as some calculated averages covering the general situation in the Member States. The figures discussed below only concern European averages. For more information concerning the different participating countries, the more detailed country reports can be consulted Some socio-demographic data on persons imprisoned According to the SPACE I 2012 report (and therefore relating to the 47 Member States of the Council of Europe who completed the 2012 survey), on the first of September 2012, the average prison population rate per population was 149,9, ranging from 3,0 (San Marino) to 516,4 (Georgia) (Aebi & Delgrande, 2014a). The report does not provide clear data on the presence of specific categories, like pre-trial and post-trial detainees, internees, and so on. It does state that 26,3% of the inmates is not serving a final sentence (e.g. when they are found guilty at trial, but did not receive their definitive sentence yet, for example because they appealed). This number has to be distinguished from the number of unconvicted (untried) detainees: for 18,7% there is no court decision reached yet. The European average age of the prison population is 35,7 (national averages ranging from 31 to 60). One per cent of the inmates in under 18 years old, 4,7% is between 18 and 21 years old. Of all inmates, 5,4% is female, and 20,5% is foreign. In 2001, 4,3% was female, and 17,2% was foreign. Although this means an increase in the presence of both groups in prison, the increase is too small to state that they would be responsible for the increase in overcrowding. The main offence of the convicted inmates (for their final sentence) is: (attempted) homicide 13%, assault and battery 8,2%, rape 7,2%, other types of sexual 1 Five countries did not fill in the questionnaire: Bosnia and Herzegovina, Georgia, Greece, Malta and the Russian Federation (Aebi & Delgrande, 2014a). 2 These can be consulted online: 6

7 offences 3,3%, robbery 12,9%, other types of theft 20%, economic and financial offences 3,4%, drug offences 17,1%, terrorism 0,3%, organized crime 1% and others 15,5%. Hence, theft and drug offenses are in general the most represented offences amongst detainees. In general, 22,4% of the post-trial inmates serve a sentence of less than one year, 25,7% a sentence of one to three years. This means that over the Member States, almost half of all post-trial detainees serve a short-term sentence of less than three years. Sentences of three to five years and of five to ten years are each served by approximately 20% of the inmates, whereas 10% serves a sentence of ten to twenty years. Finally, less than 5% serves a sentence of 20 years and over or life imprisonment. Although it does not seem that there has been an important change in the composition of the prison population over the last ten years, when it comes to the average length of the sentences, there appear some differences. The most important difference is that, in 2002, 15,6% of the post-trial inmates served a sentence of less than one year (Aebi, 2002), which means an increase towards 2012 with almost 7%. Although these figures do not say anything about the possible reasons for these changes, they indicate that an increase in the use of alternatives in order to replace shorter prison sentences might have an important influence on prison rates. 1.2 Overcrowding rates The SPACE I 2012 report indicates that, on the first of September 2012, the average 3 prison density per 100 places is 97,7, with a maximum of 159,3 (Aebi & Delgrande, 2014a). Ten years earlier, on the first of September 2002, the average density was 94,3 (Aebi, 2002). The prison density is the ratio between the number of inmates and the number of places available in penal institutions. An average density of 97,7 means, in other words, that there is no prison overcrowding at a general level. There is, however, a great variety between the different Member States. In 21 of the participating countries, this prison density is more then 100, indicating prison overcrowding. The ten countries with the highest overcrowding are: Serbia (prison density of 159.3), Italy (145.4), Cyprus (140.1), Hungary (138.8), Belgium (131.7), Croatia (120.9), Romania (118.9), France (117.0), Portugal (112.7) and Montenegro (111.7). These numbers indicate that there are five countries with more than 130 inmates per 100 places, which is, according to the SPACE I 2012 report similar to previous years. A closer look at the movements suggests that in 2011, there were 206,8 new prison entries per inhabitants (the 'flux') (of which 51% entries before final sentence ) and (only) 3 The average over the participating Member States of the Council of Europe. 7

8 170,6 releases per inhabitants (of which 28,9% pre-trial releases), suggesting an increase of the prison population during that year. The average duration of the detention in 2011, based on the total number of inmates (stock) of 2011, was 9,5 months (ranging from 1,2 to 45,1 months), showing an increase of 2,7 months compared with data of 2001 (Aebi, 2002). For pre-trial detainees, the average length is 5,7 months. 63,9% of the releases concern definitively sentenced prisoners, of which 41,8% was released under conditions and 56,6% was released unconditionally (at the end of their sentence). Based on these figures, it is very difficult to identify the main categories of inmates or the main factors contributing to overcrowding. It seems that these categories and factors differ from country to country. When looking at the countries mentioned above, with the highest overcrowding rates, we can conclude that in some of these countries there is an overrepresentation of certain categories, compared to the average, and in some of them, there is not. For example, in Cyprus there are 52,9% foreigners (mean = 20,5) and 39,6% of untried detainees (mean = 18,7%), but the prison length is 2,7 months (mean = 9,5 months). In Romania, 0,6% is foreign, 6,3% is untried, but the average length is 28,3 months. These differences indicate that overcrowding has to be handled at a national level, depending on the specific groups or categories of detainees that are overrepresented in prison. 1.3 Non-custodial sanctions and measures McNeill (2013) states that, although there is a high number of offenders in prison there has been a significant growth in the average number of offenders under supervision in the community (alternatives to prosecution or sentence, community sentences in their own right as well as post-custody licenses). Moreover, in most European jurisdictions, the offenders under supervision outnumber the ones in custody. The SPACE I and SPACE II 2012 reports confirm McNeills statement. Whereas the average prison population rate per population was 149,9 on the first of September 2012 (Aebi & Delgrande, 2014a), on the first of December 2012, the average number of persons under supervision or care of Probation Agencies per population was 214,3 (Aebi & Delgrande, 2014b). 2. Understanding the widespread problem A thorough understanding of the phenomenon of prison overcrowding is a first step in finding solutions for this problem. Following the example of Beyens, Snacken and Eliaerts (1993), the problem of prison overcrowding can be considered both in quantitative and qualitative 8

9 terms. Quantitatively, prison overcrowding can be defined as the mismatch between prison capacity and the number of prisoners to be accommodated (Kuhn, Tournier & Walmsley, 2000). Although this operationalization in terms of spatial density is most frequently used (Kuhn, Tournier & Walmsley, 2000; Pitts, Griffin & Johnson, 2014; Steiner & Wooldredge, 2009), the qualitative aspect of prison overcrowding is equally important to assess the severity and the effects. Beyens, Snacken and Eliaerts (1993) describe the qualitative aspect of overcrowding with respect to the detainees as a subjective feeling of insecurity and insufficient living space, and with respect to the staff as a sense of overload and uncontrollable situations. According to these authors, the feelings of insufficient living space or uncontrollable situations can also occur in the absence of the quantitative aspect of overcrowding. 2.1 The harmful effects The harmful effects of overcrowding are reflected at four different but interconnected levels: prison administration, prisoners, prison staff and society. Firstly, as suggested in Recommendation Rec(99)22 concerning prison overcrowding of the Council of Europe, prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole, both in terms of human rights and of the efficient management of penal institutions. The most obvious problems at the level of prison administrations relate to a lack of space. In this context, the European Prison Rules of 2006 indicate that the provided accommodation must allow for respect of human dignity and, as far as possible, privacy. With respect to adequate space, Gaes (1985) distinguishes five aspects to be taken into account: (1) spatial density, which refers to the amount of space per prisoner; (2) social density, which refers to the number of prisoners in a cell; (3) personal space, which refers to the amount of space that does not need to be shared; (4) privacy, which is considered as the proportion of time a prisoner can be alone; and (5) perceived crowding, finally, is the experience of prisoners concerning overcrowding. Besides the lack of adequate space, prison overcrowding leads also to a number of other challenges such as ensuring a good level of hygiene and internal order, providing adequate nutrition and health care, and implementing an adequate range of programmes, including outdoor exercise (Clements, 1982; CPT/Inf (2013)29; Kuhn, Tournier & Walmsley, 2000; Pitts, Griffin & Johnson, 2014). In addition to these material shortages, policy decisions are hampered by overcrowding (Haney, 2006). 9

10 Secondly, prison overcrowding has a direct impact on prisoners. Indeed, both the objective shortage of cells as the feelings of insecurity are linked with health problems, mortality, violence and mental damage (Beyens, Snacken & Eliaerts, 1993; Kuhn, Tournier & Walmsley, 2000). One of the serious detrimental effects related to prison overcrowding is prison suicide (Huey & McNulty, 2005). According to the data of SPACE I 2012, the average suicide range per inmates was 7, ranging from 0 to 31,1. In five Member States of the Council of Europe, this suicide range was over 15: Luxembourg (31,1), Montenegro (22,6), Finland (21,5), Slovenia (15,7) and France (15,6) (Aebi & Delgrande, 2014a). Thirdly, since prison staff has to work in overcrowded conditions, monitoring and other activities are to be organized with less staff in proportion to the number of detainees (Kuhn, Tournier & Walmsley, 2000; Beyens, Snacken & Eliaerts, 1993). This can affect prison staff both psychologically and physiologically (Pitts, Griffin & Johnson, 2014) and can subsequently lead to more staff sickness (Kuhn, Tournier & Walmsley, 2000). And lastly, also the society bears the consequences of prison overcrowding. Indeed, the overuse of prison is highly expensive for society (and its taxpayers) (CPT/Inf (2013)29, 21). In 2011, the average amount spent per day for the detention of one person was 95 euro, while the average total budget spent by the Prison Administration in 2011 was euro (Aebi & Delgrande, 2014a). 2.2 Prison overcrowding considered as inhuman and degrading treatment The CPT was the first to consider prison overcrowding as a direct source of inhuman and degrading treatment and consistently reminds the Member States that the combination of overcrowding and a lack of services and activities constitute a violation of Article 3 of the ECHR (CPT/Inf (92)3; Snacken, 2009; Snacken, 2006). In its most recent General Report, the CPT states that prison overcrowding implies not only very poor conditions of detention, combining lack of privacy and violence, but also deprives prisoners of certain fundamental rights. Further, prison overcrowding involves considerable human and budgetary costs. Finally, prison overcrowding is one of the reasons frequently invoked by prison staff when they go on strike. (CPT/Inf (2013)29, 21). From 2001 onwards, the ECtHR followed this reasoning of the CPT, stating that prison overcrowding can constitute inhuman and degrading treatment even without there being any positive intention of humiliating or debasing the applicant (Peers v. Greece, 2001). Furthermore, this was for instance the case in the 10

11 judgments of Dougoz v. Greece (6 March 2001), Kalashnikov v. Russia (15 July 2002) and Sulejmanovic v. Italy (16 July 2009). Likewise, the EU considers prison overcrowding as a pressing problem. In her speech concerning the future of European criminal justice under the Lisbon Treaty, Vice-President of the European Commission and Justice Commissioner Viviane Reding pointed strongly to the problem of overcrowded European prisons (Reding, 2010). According to the Vice-President, the transfer of detainees is hampered by prison conditions that are considered to be degrading punishment: what judicial authority would authorise the transfer of a detainee to a place where he or she would face a substantial risk of being ill-treated? (Reding, 2010: 4). For this reason, she advocates the use of alternatives to imprisonment and the improvement of prison management. One year later, these ideas were reflected in the Green Paper on the application of EU criminal justice legislation in the field of detention (European Commission, 2011). This European Commission publication aims to stimulate discussions on probation, alternative sanctions and detention conditions. 2.3 Causes of prison overcrowding: looking beyond the prison system Before discussing the measures taken against overcrowding, we will briefly discuss the causes of overcrowding. Indeed, a long-lasting solution requires these causes to be addressed instead of implementing short-term solutions. Prison overcrowding has a variety of causes, both within and outside the criminal justice system (Kuhn, Tournier & Walmsley, 2000; Pitts, Griffin, Johnson, 2014; Snacken, 2002, 2010). Beyens, Snacken and Eliaerts (1993) distinguish three categories of influencing and interrelated factors: (1) internal mechanisms, which are factors internally operating to the criminal justice system, e.g. on legislation, police, prosecution, remand custody, sentencing and release practices, (2) interfering factors, e.g. the role of the media, public opinion and the political climate, and (3) external factors, related to e.g. demographic and economic evolutions. Figure 1 presents the relationships between these factors (Beyens, Snacken & Eliaerts, 1993; Snacken, 2010). 11

12 Figure 1: Mechanisms explaining penal policies (Snacken, 2010: 276, based on Beyens, Snacken & Eliaerts, 1993: 186) The variety of influencing factor is also recognized by the Council of Europe recommendation concerning prison overcrowding: the overall crime situation, priorities in crime control, the range of penalties available on the law books, the severity of the sentences imposed, the frequency of use of community sanctions and measures, the use of pre-trial detention, efficiency of criminal justice agencies and not least public attitudes towards crime and punishment. (Rec (99)22 concerning prison overcrowding). Hence, it should be noted that the main causes can be situated outside the prison system (Kuhn, Tournier & Walmsley, 2000; Snacken, 2002; Snacken, 2010), which needs to be taken into account when formulating measures against overcrowding. 2.4 Internal mechanisms Since prison overcrowding is often associated with prison population inflation (which means: a very fast growth of the prison population) (Kuhn, Tournier & Walmsley, 2000), attention should be given to the factors that are at the root of this inflation. First of all, it is important to note that crime does not determinate the prison population as much as is often claimed (Beyens, Snacken & Eliaerts, 1993). In fact, research shows that crime rates of a particular 12

13 country are not related to the detention rates in that country in a linear way, on the contrary, each rises and falls according to its own laws and dynamics (Lappi-seppälä, 2012: 43). In a 1998 study, the Member States of the Council of Europe were asked to indicate the main causes of changes in prison population over the last ten or fifteen years (Kuhn, Tournier & Walmsley, 2000). In the light of the foregoing, it is remarkable that the most cited cause was the increase in crime or the number of offences reported to the police and, consequently, in the number of convictions, two other frequently cited causes were the increase in the length of sentences handed down by judges or in the length of imprisonment and the increase in crimes committed by foreigners or immigrants. It should be noted that respondents were given eleven response options, all situated within the criminal justice system. Beyens, Snacken and Eliaerts (1993) illustrate that decriminalizing certain offences can reduce prison population strikingly. Finland is probably the best-known example. By decriminalizing public drunkenness and decreasing certain maximum sentences, prison population decreased enormously. Also Denmark and England reduced the prison population by decriminalizing certain offences. By contrast, prison population increased in several countries as a result of new drugs regulations (Beyens, Snacken and Eliaerts, 1993). Moreover, certain policy decisions concerning prosecution, remand, sentencing and release can have a profound impact on the prison population, and in particular on certain categories of prisoners. For example, both policy decisions relating to the use of remand custody and prosecution priorities applied by the Public Prosecutor can influence the prison population since a substantial proportion of prison population consists of remand prisoners who are technically still considered innocent (Beyens, Snacken and Eliaerts, 1993; Morgenstern, 2009). The same goes for legislative or administrative decisions concerning conditional and other types of early release. Because it is difficult for certain categories of prisoners (e.g. sexual delinquents) to meet the conditions, they stay ever longer in prison (Daems, 2014; Snacken, 2002) and, for example in Belgium, time conditions for conditional release became more stringent (law of 17 March 2013). Moreover, sexual delinquents not only have difficulties to be conditionally released but also to get alternative sanctions such as electronic monitoring (Snacken, 2002). 13

14 2.5 Interfering factors and external factors As mentioned above, interfering factors such as the way in which crime and the functioning of the criminal justice system are presented by the media, evolutions in the public opinion, and the political climate, and external factors related to demographical developments (e.g. the age structure of the population and migration movements) and economic influences (e.g. income discrepancies and unemployement) are at least as important to understand changes in prison population. A complete study of these factors is beyond the scope of this paper but the following two examples can indicate the importance of these elements. The first example of factors outside the criminal justice system that influence the prison population relates to the nature of the political decision-making process. Several studies have shown that the number of prisoners in relation to inhabitants is associated with characteristics of political decision-making processes. Countries with majoritarian democracies tend to have higher detention rates than consensual democracies (Snacken, 2010, Lappi-Seppälä, 2007, 2008; Green, 2012; Lacey, 2008). The other example worth mentioning relates to social inclusion and welfare expenses. (Snacken, 2010; Tonry 2012; Body-Gendrot, Hough, Kerezsi, Lévy & Snacken, 2014; Lappi-Seppälä, 2014; Downes & Hansen, 2006). Lower levels of income inequality and higher welfare investments seem to correlate with lower incarceration rates. The Scandinavian countries are the classic example in this context. 3. Measures to prevent and/or to combat overcrowding Ever since the problem of prison overcrowding exists, there have been attempts to decrease prison population. The number of attempts is as high as the number of causes, which is, according to Pitts, Griffin and Johnson (2014, p. 129), obvious, since a multifaceted problem typically requires a multifaceted solution. Although there are several possible measures and strategies (for example the use of custodial and non-custodial sanctions and measures, shortening the length of imprisonment and enhancing the possibilities for early release), every one of them has their own shortcomings (Kuhn, Tournier, & Walmsley, 2000; Snacken, 2006). This makes it necessary to combine strategies and approaches according to the specific causes for overcrowding in each Member State (Kuhn, Tournier, & Walmsley, 2000). In addition, reducing prison overcrowding is not possible without embedding these appropriate measures within a coherent and national crime policy directed towards the prevention of crime and criminal behavior, effective law enforcement, public safety and protection, the 14

15 individualization of sanctions and measures and the social reintegration of offenders (Rec (99)22 concerning prison overcrowding; Snacken, 2006). Moreover, such measures need support, not only by the political leaders, but by judges, prosecutors and the general public as well. Since the specific focus of this paper lies on the use of community sanctions as a means to reduce overcrowding, these alternative sanctions will be discussed in a more comprehensive way than the other possible measures. 3.1 Non-custodial measures For decades already, several countries make use of community sanctions in order to decrease the use of imprisonment, which is shown by the comments on non-custodial sanctions in a variety of official documents and reports (for example, of the United Nations and the Council of Europe). When it comes to preventing and/or combating prison overcrowding, noncustodial measures can be used within two different strategies, a front-door and a back-door strategy. When using a front-door strategy, prison populations are kept low by making a selection of offenders to imprison and by keeping the door closed for others, in other words, by limiting the input of offenders. This can be done, for example, by decriminalization, by adopting certain prosecution policies and sentencing priorities, by legally limiting the length of prison sentences or by an effective replacement by non-custodial sanctions and measures. Imprisonment is then used as a last resort, as ultimum remedium, what also entails that imprisonment is not used as a threat in cases of noncompliance with alternative measures, and that, therefore, the legal connection between noncompliance with alternative sanctions and the prison sentence is to be avoided (Snacken, 2002; 2006). This idea corresponds to the CoE Committee of Ministers statement that: Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only where the seriousness of the offence would make any other sanction or measure clearly inadequate. (Rec (99)22 concerning prison overcrowding). The front-door strategy can also be used during the pre-trial phase, by reducing pre-trial detention to a minimum: the application of pre-trial detention and its length should be reduced to the minimum compatible with the interests of justice and the widest possible use should be made of alternatives to pre-trial detention (Rec (99)22). According to Snacken (2002), a front-door strategy is not an easy 15

16 way to reduce prison population, but for her it seems that, on the longer term, it is the only satisfactory way. Back-door strategies to reduce prison overcrowding aim at releasing prisoners as soon as possible, in other words, to keep the prison sentences as short as possible (Snacken, 2006). Using a back-door strategy can lead to an immediate decrease of prison population and it can be done by stimulating an early release of prisoners, for example through parole, electronic monitoring, house arrest, and so on (Pitts, Griffin, & Johnson, 2014). Except for front-door and back-door strategies, measures can be taken to reduce the amount of time in prisons during the detention period (e.g. through semi-liberty, prison leave for educational or other reasons, halfway houses and other types of gradual transition to society). Although in many of these cases there is still a cell needed for the offender, and in that way not contributing to overcrowding in a direct manner, it can reduce the population pressure, especially in shared cells. In addition, they contribute to the re-integration of the offender and they facilitate the process of preparation for release (Kuhn, Tournier, & Walmsley, 2000). As discussed above, non-custodial measures can be implemented as part of a front-door as well as a back-door policy towards the reduction of overcrowding in prisons. The Council of Europe s most important recommendation concerning prison overcrowding (Rec (99)22), explains more than once how community sanctions and measures need to be promoted, and this by using a multilayered strategy: In first instance, the third principle states that an appropriate array of community sanctions and measures should be made available to prosecutors and judges. In line with this provision, principle nine advocates the use of alternative modalities for the enforcement of prison sentences, such as semi-liberty, open regimes, prison leave or extra-mural placements. In addition, regarding the trial stage it is recommended making efforts to reduce the recourse to sentences involving long imprisonment [ ] and to substitute community sanctions and measures for short custodial sentences. Because of this multilayered approach suggested by the Committee of Ministers on the one hand and the lack of distinction between community sanctions and measures used as a front-door whether as a back-door strategy in most existing sources on the other hand, community sanctions and measures will be discussed in a general way from here on, except when explicitly mentioned otherwise. 16

17 3.1.1 Defining community sanctions When reading about community sanctions, there are clearly various terms that are being used in international literature, like offender supervision, community supervision, alternative sanctions, intermediate sanctions, community sanctions, community corrections, and so on. According to McNeill (2013), it concerns a penal subfield with rather vague boundaries, and which is described and labeled differently in different places or by different actors. Considering our focus on the European level, we agree with McNeill to adopt the definition of the Council of Europe. Their definition succeeds in integrating the front-door as well as the back-door measures (as discussed here above), which makes it even more fitting (McNeill, 2013). Various European Regulations, such as the Council of Europe Probation Rules (Rec (2010)1), adopted this definition. The European label community sanctions and measures is described as: those sanctions and measures which maintain the offender in the community and involve some restriction of his liberty through the imposition of conditions and/or obligations, and which are implemented by bodies designated in law for that purpose. The term designates any sanction imposed by a court or a judge, and any measure taken before or instead of a decision on a sanction as well as ways of enforcing a sentence of imprisonment outside a prison establishment (Council of Europe, Rec (1992)16). Both at the pre-trial and the post-trial level, there are is a variety of community sanctions and measures. These sanctions and measures can differ between the different Member States, as well as the concrete interpretations given to them. In the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) of 1990, following alternatives to pretrial detention are included: verbal sanctions, conditional discharge, status penalties, economic sanctions and monetary penalties, confiscation or an expropriation order, restitution to the victim or a compensation order, suspended or deferred sentence, probation and judicial supervision, community service order, referral to an attendance center, house arrest, any other mode of non-institutional treatment, some combination of the measures listed above. At a post-trial level, community sanctions and measures can be one of the following: fully or partially suspended custodial sentence with or without probation, conditional pardon or conditional discharge (with probation), community service, electronic monitoring, home arrest, semi-liberty (including weekend imprisonment and imprisonment on separate days), treatment (outside prison), conditional release/parole with probation, furlough and halfway 17

18 houses, work or education release, various other forms of parole, remission, pardon, mixed orders and others (Aebi & Delgrande, 2014b; Tokyo Rules). Definitions of some of these community measures and sanctions can be found in European regulation, for example in the Council Framework Decision of 2008 ( JHA) or in the Council of Europe Probation Rules (Rec(2010)1) European regulations concerning community sanctions: an overview During the last decades, in most European countries the scale, reach and intensity of supervisory sanctions have been increasing. Besides the traditional rehabilitative measures at post-trial level, there has been an increase in pre-trial and/or pre-sentence supervisory sanctions as well as an emergence of supervision under civil law and in administrative forms (McNeill, 2013). At a European level, the development and implementation of these noncustodial sanctions and measures, at pre-trial as well as at post-trial level, have been influenced and stimulated by several European institutions, more specifically, by studies carried out by the European Committee on Crime Problems and the resolutions prepared by the Committee of Ministers of the Council of Europe (Van Kalmthout, 2000). The Council of Europe has a history of many years of developing instruments concerning Human Rights in general (e.g. the European Convention of Human Rights in 1950), as well as developing more specific instruments and standards regarding the treatment of offenders. A well-known example are the European Prison Rules concerning Prisoners Rights (Rec (87)), developed in the 1970s but updated in 2006 (Morgenstern & Larrauri, 2013). In 1976, the Committee of Ministers adopted Resolution R(76)10 on alternative penal measures to imprisonment, based on the report Alternative penal measures to imprisonment. This Resolution promotes the further development of existing alternatives and encourages the development of promising new alternatives to imprisonment by the Member States (more specifically, of deferral, community service and semi-detention), as well as an investigation of the advantages and opportunities of community work (Van Kalmthout, 2000, p. 121). In the early 1990s, the United Nations and the Council of Europe tried to reduce the use of imprisonment by strengthening community sanctions (McNeill, 2013). Meanwhile, it was internationally recognized that alternative sanctions, just as imprisonment, restrict and potentially violate personal liberties and rights (Morgenstern & Larrauri, 2013). Therefore, in order to ensure the observance of human rights, the United Nations and the Council of Europe also tried to set out some minimum rules for alternative sanctions, by involving national 18

19 stakeholders, NGO s and scientific experts. This resulted in the realization of two formal but nonbinding documents for the Member States: the United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) in 1990 and the European Rules on Community Sanctions and Measures (European Rules, Rec(92) 16) in 1992 (McNeill, 2013). The main concerns of these recommendations were the offenders rights and guidelines for good practices. The main objective of the Tokyo Rules was, for example, to set of basic principles to promote the use of non-custodial measures (in order to reduce the use of imprisonment), as well as minimum safeguards for persons subject to alternatives to imprisonment. Noncustodial measures were seen as in accordance to the principle of minimum intervention and as part of a movement towards depenalization and decriminalization. Pre-trial detention had to be seen as a mean of last resort and alternatives had to be employed as early as possible. On the other hand, the European Rules focuses not so much on the implementation of community sanctions and measures as such, but rather on how they need to be worked out and executed. Their aims are to establish common principles regarding penal policy amongst the Member States in order to strengthen international co-operation in this field, to establish a set of standards to provide a just and effective application of community sanctions and measures (e.g. proportionality) and to furnish Member States with basic criteria in order to protect the fundamental human rights of offenders subject to such sanctions and measures. Despite their non-binding character, the Tokyo rules and the European Rules were adopted unanimously by representatives of all of the Member States (Morgenstern & Larrauri, 2013). Almost all European countries reformed their sanction system to a certain extent (Van Kalmthout, 2000). In addition, they received the support of experts, academics and several NGOs active in the field of offender supervision - including the European Probation Organization (Conference Européenne de la Probation 4, CEP) (Morgenstern & Larrauri, 2013). In addition to the European Rules, in 2000 the Committee of Ministers of the Council of Europe provided guidelines on improving the implementation of the European rules on community sanctions and measures (Rec (2000)22). In appendix 2 of these guidelines, there are some guiding principles for achieving a wider and more effective use of community sanctions and measures. These guidelines concern (inter alia) legislation, the sentencing practice (e.g. the establishment of rationales for sentencing), the effective implementation (e.g. setting up adequate services) and the improvement of the credibility of community 4 Today, the Confederation of European Probation. 19

20 sanctions and measures with judicial authorities, complementary agencies, the general public and politicians (e.g. by dissemination of the European Rules in the national language of each Member State). Although during the following years, and especially after 2001, other topics were prioritized on the international agenda, alternative sanctions (and probation) started to receive attention again a couple of years ago. In 2008, the European Union adopted a Framework Decision on supervision of probation measures and alternative sanctions (2008/947/JHA), which requires Member States to supervise offenders sentenced in another state (McNeill, 2013; Morgenstern & Larrauri, 2013). The Framework Decision aims at facilitating the social rehabilitation of sentenced persons, improving the protection of victims and of the general public, and facilitating the application of suitable probation measures and alternative sanctions, in case of offenders who do not live in the State of conviction and tries to achieve this by laying down some rules for the Member States. They also dictate several types of alternatives which are common in all the Member States and of which the supervision is obligatory. A second instrument of the European Union is the Framework Decision on the European Supervision Order (ESO), adopted in 2009 (2009/829/JHA). This instrument concerns the transfer of pretrial supervision measures (e.g. bail conditions) (Morgenstern & Larrauri, 2013). This Framework Decision aims at ensuring the due course of justice, promoting non-custodial measures for persons who are not resident in the Member State where the proceedings are taking place and improving the protection of victims and of the general public. These two European Union Framework Decisions are legally binding, in that sense that the Member States are required to implement them into national legislation. In 2010 the Council of Europe also became active again within this domain by adopting the Council of Europe s Probation Rules (Rec (2010)1). These Rules complement all Recommendations mentioned above and others. As the name reveals, they focus on probation work and try to inform about and promote good practices (Morgenstern & Larrauri, 2013). Lastly, the European Commission published the Green Paper on the application of EU criminal justice legislation in the field of detention in 2011 (COM(2011) 327). With this Green Paper, the Commission wants to explore the extent to which detention issues impact on mutual trust, mutual recognition and judicial cooperation generally within the European Union. It covers the interplay between detention conditions and mutual recognition instruments as well as pre-trial detention. Mutual confidence is crucial, since circumstances as poor treatment and prison overcrowding (for pre-trial detainees as well as for convicted 20

21 prisoners) can undermine the necessary trust in order to strengthen judicial cooperation within the European Union. Without this trust, Member States might be reluctant to recognize and enforce the decision taken by another Member State's authorities The objectives of community sanctions: divided opinions Although community sanctions are promoted in all Member States, there exist some important differences between countries concerning the aims and purposes of community sanctions (Snacken & McNeill, 2012). Moreover, this lack of unity amongst Member States can be (partly) responsible for the failure to minimalize the use of prisons within penal policies. According to McNeill (2013), these differences arose because of the fact that, in many jurisdictions, community sanctions emerged as measures imposed instead of punishment or as a form of suspended punishment and thus not as an actual punishment. The nature and sentencing aim of community sanctions is still very unclear. They can be seen as punitive sanctions with a retributive aim, or they can be aimed primarily at rehabilitation and resocialization. Although in a lot of countries the legislature and the judiciary prefer the retributive purpose, probation services and community organizations often prefer the rehabilitative and victim-oriented approach (Van Kalmthout, 2000). In addition, some Member States refer explicitly to the aims of the community sanctions, like rehabilitation or the prevention of recidivism, whilst others leave this decision to the court (Snacken & McNeill, 2012). Another possible objective of community sanctions arises from the concern about the costs of imprisonment. According to McNeill (2013), the reduction of these costs became of key interest within contemporary penal policies (an example from the Netherlands shows that the cost of community sanctions can be 5 to 8% of the cost of imprisonment). In addition, some argue that community sanctions lead to a lower reoffending rate then imprisonment, but this statement is rather controversial and at least over-generalising (McNeill, 2013). Because of this lack of unity concerning the objectives of community sanctions, Snacken and McNeill (2012) compared some of the European guidelines and recommendations concerning probation. For example, the Probation Framework Decision of 2008 (2008/909/JHA) states that the aims of community sanctions and measures are: facilitating the social rehabilitation of sentenced persons, improving the protection of victims and the general public, and facilitating the application of suitable probation measures and alternative sanctions in cases of offenders who do not live in the state of conviction. In the Probation Rules R1 (Rec 21

22 (2010)1), similar objectives are described: Probation agencies shall aim to reduce reoffending by establishing positive relationships with offenders in order to supervise (including control where necessary), guide and assist them and to promote their successful social inclusion. Probation thus contributes to community safety and their fair administration of justice.. Finally, the CEP Statement on Probation Values and Principles states that Social inclusion is a requirement of social justice and a key guiding principle in probation practice. This overview can be completed with information provided in Resolution 76(10) on alternative penal measures to imprisonment, the Tokyo Rules, the European Rules on community sanctions and measures (Rec (92)16) and the recommendation on improving their implementation (2000). The Resolution 76(10) on alternative penal measures to imprisonment indicates that prison sentences have to be avoided because of their many drawbacks and out of respect for individual liberty, whilst alternatives to prison sentences can serve the object of rehabilitating offenders and are less costly than imprisonment. In the Tokyo Rules, a lot of objectives of non-custodial measures are described. They aim to reduce the use of imprisonment, and to rationalize criminal justice policies, taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender, to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society, to avoid unnecessary use of imprisonment, to avoid institutionalization and to assist offenders in their early reintegration into society and to reduce reoffending. The European Rules (Rec (92)16) state that these sanctions and measures constitute important ways of combating crime and that they avoid the negative effects of imprisonment, whereas the Recommendation improving the implementation of the European rules on community sanctions and measures aims particularly at the reintegration into the community. Snacken and McNeill (2012, p. 562) concluded their limited comparison by arguing that there exists a consensus at the European level. It seems that the general aim of a penal sanction is the prevention of recidivism and the protection of the community (including the victims). In addition, a particular characteristic of probation measures is their emphasis on working with offenders in the community and fostering their social rehabilitation and inclusion. It seems that this objective is transferable to community sanctions in general. With regard to other European regulation, other objectives can include: avoiding detention because of their 22

23 negative consequences, reducing the costs, providing greater flexibility in the search for offender customized sentences, and better serving the needs of the victims Implementation of community sanctions Whether the implementation of these European guidelines and recommendations is going as planned, is not that clear. It seems that there exist several opinions on that matter. According to an extensive survey conducted by Van Kalmthout and Durnescu (2008), there exists a considerable expansion of the use of community sanctions in most European jurisdictions. However, McNeill (2013) argues that, since prisoners are often released under some form of supervision and prison sentences thus also involve community-based sanctions, this expansion is rather relative and does not per se indicates a decrease in the use of custodial sanctions. Indeed, notwithstanding the conclusion drawn in several reports of the Council of Europe that since 1976 more than twenty alternative penal measures have been introduced, alternatives like periodic detention, semi-detention, semi-liberty, weekend detention, work release and the (partly) suspended sentence substitute a part of the custodial sentence and are not imposed instead of imprisonment. The other community sanctions, the true alternatives to imprisonment, have only been used on a limited scale, only community service seems to be applied on a greater scale (Van Kalmthout, 2000). Also, the implementation of the binding European Union Framework Decisions (2008/909/JHA, 2008/947/JHA and 2009/829/JHA) concerning offender supervision is not going too well (Morgenstern & Larrauri, 2013). After the European Commission adopted the Green Paper (COM(2011) 327) in 2011, they received 81 replies to the document, from various actors (national governments, practioners, international organizations, NGOs, academics). They summarized these replies and published the summary on their website 5. This comprehensive and very clear analysis reveals that a majority of Member States argues for an assessment of the implementation of Framework Decision 2008/247/JHA. The Framework Decision is seen as very important in the promotion of alternatives to imprisonment, the more because it facilitates the social reintegration of offenders. In addition, alternatives to imprisonment (post-trial) should be promoted. Concerning the pre-trial alternatives, the analysis uncovers that a large majority of Member is not fond on developing new legal measures in the area of mutual recognition before the implementation of the 5 Analysis of the replies to the green paper on the application of EU Criminal Justice legislation in the field of detention: n.pdf 23

24 Framework Decision 2009/829/JHA is assessed. They agree on the idea that it was an important step in the promotion of pre-trial detention alternatives, but it is necessary to first evaluate the paper s functioning and the possible needs. In addition, some respondents criticized the limited use of non-custodial sanctions across Member States, implying an overuse of pre-trial detention. According to these respondents, the overuse of pre-trial detention can be a direct cause of prison overcrowding. Judges often automatically opt for detention is stead of an alternative, especially when it comes to foreigners (because of the flight risk). Hence, a majority of International Organizations, NGO s and Professional associations advocate for the promotion of alternatives to pre-trial detention. Although the Member States should have implemented the Framework Decisions by now, many of them did not. By the end of 2014, it will be possible to start a so-called infringement procedure for the European Court of Justice in cases of non-compliance and the European Commission will be able to initiate such procedure (Morgenstern & Larrauri, 2013). Consequently, it is to be seen how the implementation of both Framework Decisions by the Member States will proceed in Community sanctions: disadvantages and risks First, it is not clear to what extent and under which conditions community sanctions succeed in reducing prison overcrowding. It is possible that they are only used to replace short prison sentences, while often the longer sentences and the extending duration of the detention contribute more directly to the problem of overcrowding. Besides that, the possibility and existence of non-custodial sentences do not necessarily imply that they are actually applied by judges (Beyens, Snacken & Eliaerts, 1993). There seems to be a strong under-utilisation of the potential of community sanctions in many countries. In addition, community sanctions can imply several disadvantages and possible counter-effects. As mentioned before, the objective or aim of alternative sanctions is often unclear, resulting in an undeveloped ideological base. As a consequence, community sanctions are often not seen as a real punishment, but as an alternative secondary to the real sanction, imprisonment. In legal, political or academic discussions, there is not much being said about the potential punitive character of community sanctions. However, Rule 6 of the European Rules on Community Sanctions and Measures states that the nature and duration of the community sanction or measure must be determined in proportion to the seriousness of the offence. Proportionality is one of the basic judicial principles in sentencing, indicating that 24

25 the European Rules consider alternative measures to be punitive (Beyens, Snacken, & Eliaerts, 1993; Van Kalmthout, 2000). In contrast to prisons and other institutions, in most Member States community sanctions still lack sufficient financial support and organizational infrastructure. Even more, according to Van Kalmthout (2000), financial means are often required by taking them away from other probation activities instead of providing additional means. This imbalance shows that politicians do not always consider community sanctions as very suitable, in contrast to prison sentences. In addition, the lack of means also implies a shortage of trained professional staff, which can have negative consequences for the supervision of the offender and thereby for the success of the measure. Subsequently, Van Kalmthout (2000) discusses three ways in which community sanctions can even be counter-productive and lead to an increase of custodial sentences. First, it is possible that judges who are not fond of community sanctions (because they see these as softer options) impose pre-trial detentions in cases where they normally would not have done that. When deciding on the sentence, a custodial sentence cannot be avoided, since the sentence has to cover the pre-trial detention time. Pre-trial detention can that way be used (or abused) as a pre-trial custody penalty, which is to be avoided by developing strict criteria. Second, many of the community sanctions are imposed not as an alternative to imprisonment, but as an alternative to another community sanction, or they are combined with a suspended sentence. In cases of noncompliance with the community sanction, a custodial sentence is often imposed (this is the case in most European countries, although both the United Nations and the Council of Europe s Standard Minimum Rules (Rule 86) on non-custodial sanctions reject the idea of imprisonment as an answer to noncompliance), leading to an increase of imprisonment population instead of a decrease. Lastly, the so-called net-widening effect is discussed, which arises when community sanctions are imposed in cases where, if they were not that popular and widely accepted by the community, no sanction (or a softer sanction, such as a fine) would have been imposed (Beyens, Snacken, & Eliaerts, 1993; Van Kalmthout, 2000). Finally, the use of community sanctions can result in stigmatization and discrimination. Although Rule 20 of the European rules prohibits discrimination in the imposition of community sanctions (on grounds of race, color, ethnic origin, nationality, gender, language, religion, political or other opinion, economic, social or other status, or physical or mental condition), it is obvious that they are always imposed to certain categories of offenders. This 25

26 dualisation in sentencing, whereby less dangerous offenders are favored with a community sanction and more severe cases are punished with a harsher prison sentence, was already addressed in 1980 by King and Morgan. The offenders performing a community sanctions need to have certain characteristics in order to be able to fulfill the requirements, which leads to a systematic exclusion of certain categories (such as drug addicts, homeless people or recidivists). There are no non-custodial alternatives for these groups of offenders, which not only leads to stigmatization, but also to a prison population that is seen as dangerous, unmanageable and incorrigible (Van Kalmthout, 2000). 3.2 Other measures to decrease prison overcrowding Besides the use of non-custodial sentences, whether used as a front-door or a back-door strategy, there are several other measures to reduce prisonovercrowding. A very popular measure in various Member States, for example, is increasing prison capacity by building new prisons or expanding existing prisons. Although this seems like an obvious measure against prison overcrowding, various authors and researchers conclude it is not. This opinion finds support in the Council of Europe s Recommendation concerning prison overcrowding (Rec (99)22), by explicitly rejecting the expansionist policy : The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding. (second basic principle). Indeed, according to Beyens, Snacken and Eliaerts (1993), the available prison capacity can determine the prison population according to the double hypothesis that (1) the additional capacity will lead to an increase of the prison population (by analogy with Parkinson s law, it is to be assumed that every bureaucratic system expands itself until it reaches its limits, leading to a priming effect when it comes to prison population), and that (2) limiting the capacity will lead to a decrease in prison population (because overcrowded prisons can cause caution in judges to imprison offenders). The sixth principle of the Council of Europe s recommendation concerning prison overcrowding, which recommends setting a maximum capacity for penal institutions, reflects the same idea. Another way to reduce overall prison overcrowding is to focus on the exclusion from prison of specific categories of detainees, where possible. As mentioned earlier, pre-trial detainees can be held out of prison by making more use of pre-trial alternatives and by using pre-trial imprisonment only as a last resort. In addition, mentally retarted pesons and psychiatric patients (internees), sex offenders and drug addicts can be kept out of prison by providing specific assistance and/or specific institutions more adjusted to their specific problems. Lastly, 26

27 by decriminalizing certain types of offences, these offenders can be excluded from prison as well. The Committee of Ministers recommendation concerning prison overcrowding raises in this respect: the possibility of decriminalizing certain types of offence or reclassifying them so that they do not attract penalties entailing the deprivation of liberty. As Pitts, Griffin and Johnson (2014, p. 136) suggest, there are several actors and factors contributing to prison overcrowding: The courts contribute through sentencing, police contribute through arrests, and state legislatures contribute due to their unwillingness to depart from tough on crime policies that have damaging budgetary effects. A collaborative, multifaceted approach, including all associated agencies, will be necessary in order to accomplish an actual decrease in prison population. 3.3 Community sanctions and the role of victims The last decades, there has been widespread growing attention towards victims of crimes and their potential role in criminal justice proceedings. Already in 1985, the Council of Europe published a recommendation concerning the position of the victim in the framework of criminal law and procedure (Rec (85)11). Although this recommendation does not entail guidelines concerning the role of the victim when it comes to community sanctions and measures, it provides some general guidelines concerning the approach towards victims by the police, during prosecution, when questioned by the court, and so on. The EU Council Framework Decision on the standing of victims in criminal proceedings (2001/220/JHA) deals with a variety of victim-related topics, such as their right to receive information, their right to protection, penal mediation and practical conditions regarding the position of victims in proceedings. Although these are, again, general guidelines, they of course apply to community sanctions and measures as well. This Framework Decision was replaced by the Directive of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime (Directive 2012/29/EU). It strengthens victims rights when it comes to information, support and protection, as well as their procedural rights. Relevant to the applicability of community sanctions is the right for victims to receive information on the prisoner s release at pre- and post-trial level, as stated in article 6.5 and 6.6 of the Directive: 6.5. Member States shall ensure that victims are offered the opportunity to be notified, without unnecessary delay, when the person remanded in custody, prosecuted or sentenced for criminal offences concerning them is released from or has escaped detention. Furthermore, Member States shall ensure that victims are informed of any 27

28 relevant measures issued for their protection in case of release or escape of the offender Victims shall, upon request, receive the information provided for in paragraph 5 at least in cases where there is a danger or an identified risk of harm to them, unless there is an identified risk of harm to the offender which would result from the notification. Although not providing specific information on the victims place in the implementation of community sanctions, most of the recommendations or Framework Decisions regarding community sanctions explicitly mention the rights of victims. For example, the Probation Rules explicitly prescribes that probation agencies need to provide services to victims of crime and if necessary, to work together with victim support services. Every intervention has to take place with respect to the rights of victims. In addition, both the European Rules and the Tokyo Rules advocate the need to develop alternatives to imprisonment that ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention. Through a balanced approach, it should be possible to avoid a merely punitive influence of victims as a result of their reinforced role within the criminal justice system. After all, some of the new instruments or regulations for the purpose of victims could lead to a stricter criminal justice process or a longer period of detention. It is absolutely possible that the participation by the victim, or even the mere increased attention for victims, results in a more restraining attitude of (judicial) authorities when it comes to assigning an early release. A balanced criminal justice approach, respecting everyone s interests, can be promoted by introducing some of the restorative justice principles, for example by creating and offering appropriate forums in every phase of the process (from pre-trial to post-sentence) where participation and communication between all stakeholders is possible. In addition, restorative justice values and principles can guide the way in which community sanctions are applied in general (Marshall, 1999). Finally, research concerning the application of victim-offender mediation and other restorative justice practices (such as family-group conferencing) shows that this type of alternative approach is very suitable when handling more serious crimes. In more serious crimes, victims often have a greater need for an explanation from the offender or for communicating with, and expressing their feelings to, the offender. Also, the effect of the use of restorative justice practices on re-offending is greater for more serious crimes than it is for less serious crimes (Sherman & Strang, 2007). This means that, when considering the 28

29 rights and needs of victims, it is not necessary to limit the use of alternatives to imprisonment to minor offences. 3.4 Measures exceeding the scope of criminal justice proceedings Although not the scope of this paper, it is necessary to mention the importance of the broader, societal context when it comes to reduce prison overcrowding, in particular the field of social policies of Member States. Several researchers point at the negative relationship between welfare investment and prison rates, with the Scandinavian countries as the biggest example of this mechanism (Snacken, 2010). Without exploring this topic further, we can indicate that it is important to consider this relationship as intermediate factor, playing a possible role in the problem of prison overcrowding. At the least, further research is recommended to gain further insight in this macro-perspective, in order not to limit dealing with prison overcrowding at a micro-level. Conclusion In this paper, we have tried to present a broad picture on how community sanctions and measures, as promoted by various types of regulations at the European and international level, can contribute to dealing with three important prison related issues in an effective way: overcrowding, offender reintegration, and victims' needs and rights. Relying on the observation that prison overcrowding is not only a widespread problem in geographical terms, but has also a wide range of causes (1) factors internal to the criminal justice system, (2) factors external to the criminal justice system and (3) interfering factors we have argued that a collaborative, multifaceted approach is needed to accomplish an actual decrease in prison population. Taking into account the complexity of the phenomenon and its influencing factors, each country should develop its own strategy. However, measures taken to reduce prison overcrowding should meet certain common requirements. Firstly, and perhaps most importantly, alternatives to imprisonment should be a true replacement of imprisonment instead of being used in addition to incarceration. This requires a good follow-up and ongoing monitoring of the application of both non-custodial and custodial sanctions at the national level. Secondly, in order to implement non-custodial sanctions, there is a need for sufficient financial support and organizational infrastructure as well as well-trained staff. The quality of personal support and guidance (by probation 29

30 workers, by community volunteers,...) seems to be of utmost importance. Thirdly, noncustodial measures should be embedded within a coherent, national crime policy directed towards the prevention of crime, effective law enforcement, public safety, the individualization of sanctions and measures, and the social reintegration of offenders. Fourthly, such measures need support, not only by the political leaders, but also by judges, prosecutors and the general public. Finally, this approach of criminal justice should be situated in a context of broader social policies with due regard for the offender, and his social reintegration, and for the victim, and his needs and rights. We hope that all the elements as listed here can offer a framework to further study and develop the practices and policies (of CSMs) in the respective countries. 30

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34 Vermeulen, G., van Kalmthout, A., Paterson, N., Knapen, M., Verbeke, P., & De Bondt, W. (2011). Cross-border execution of judgments involving deprivation of liberty in the EU. Antwerpen: Maklu. Overview of relevant regulations United Nations Resolution 663 C (XXIV) of the General Assembly of the United Nations (31 July 1957), Standard Minimum Rules for the Treatment of Prisoners (1957). Resolution 43/173 of the General Assembly of the United Nations (9 December 1988), Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988). Resolution 45/110 of the General Assembly of the United Nations (14 December 1990), United Nations Standard Minimum Rules for Non-custodial Measures, UN Doc. A/RES/45/110 (1990) (The Tokyo Rules). Resolution 45/111 of the General Assembly of the United Nations (14 December 1990), Basic Principles for the Treatment of Prisoners, UN Doc. A/RES/45/111 (1990). Council of Europe European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, European Convention on the Supervision of Conditionally Sentenced or Conditionally Released offenders, 30 November 1964, Convention on the Transfer of Sentenced Persons of 21 March 1983, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 26 November 1987, Additional Protocol to the Convention on the Transfer of Sentenced Persons of 18 December 1997, 34

35 Resolution (62)2 Electoral, civil and social rights of Prisoners (1 st February 1962). Resolution (70)1 Practical organisation of measures for the supervision and after-care of conditionally sentenced or conditionally released offenders (26 January 1970). Recommendation Rec (79)14 of the Committee of Ministers to member states concerning the application of the European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders (14 June 1979). Recommendation Rec(82)16 of the Committee of Ministers to member states on Prison Leave (24 September 1982). Recommendation Rec(85)11 of the Committee of Ministers to member states on the position of the victim in the framework of criminal law and procedure (28 June 1985). Recommendation Rec(92)16 of the Committee of Ministers to member states on the European rules on community sanctions and measures (19 October 1992). Recommendation Rec(92)18 of the Committee of Ministers to member states concerning the practical application of the convention on the transfer of sentenced persons (19 October 1992). Recommendation Rec(99)22 concerning prison overcrowding and prison population inflation (30 September 1999). Recommendation Rec(2000)22 of the Committee of Ministers to member states on improving the implementation of the European rules on community sanctions and measures (29 November 2000). Recommendation Rec(2003)22 of the Committee of Ministers to member states on conditional release (parole) (24 September 2003). Recommendation Rec(2003)23 of the Committee of Ministers to member states on the management by prison administrations of life sentence and other long-term prisoners (9 October 2003). Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (11 January 2006). 35

36 Recommendation Rec(2006)13 of the Committee of Ministers to member states on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse (27 September 2006). Recommendation Rec (2010)1 of the Committee of Ministers to member states on the Council of Europe Probation Rules (20 January 2010). Recommendation Rec (2012)12 of the Committee of Ministers to member states concerning foreign prisoners (10 October 2012). Recommendation Rec(2014)4 of the Committee of Ministers to member states on electronic monitoring (19 February 2014). European Union Charter of Fundamental Rights of the European Union 2000/C 364/01 of 18 December Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (2012). Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (2001). Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002). Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (2008). Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (2008). Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (2009). 36

37 Case law ECHR, Dougoz v. Greece, ECHR 2001-II ECHR, Peers v. Greece, ECHR 2001-III ECHR, Kalashnikov v. Russia, ECHR 2002-VI ECHR, Sulejmanovic v. Italy, 2009 NGOs Association for the Prevention of Torture, International Centre for Prison Studies, Amnesty International, Confederation of European Probation (CEP), Penal Reform International, Howard League for Penal Reform, 37

38 ITALY 1. General legal framework Central questions to be addressed: 1.1. What alternatives to imprisonment are legally available in the phase of pre-trial detention? In the phase of pre-trial detention of suspects, the Italian Code of Criminal Procedure («Codice di Procedura Penale», c.p.p.) envisages the following alternatives to detention, called «Precautionary measures» (in Italian «Misure cautelari»), from Article No. 272 to Article No. 325: (a) Prohibition to leave the country; (b) Obligation to personally go to the nearest police station and sign a document at certain times; (c) Expulsion from one s family house; (d) Restraining orders; (e) Prohibition or duty to dwell in a given place; (f) House arrest. Together with (g) Provisional arrest (which is a custodial measure), The above mentioned precautionary measures are «Coercive» (i.e. they are obligations). Instead, other kinds of Precautionary measures are «Interdictive» (i.e. they prevent you from doing something): (a) Suspension of parental authority; (b) Suspension from a public office or service; (c) Temporary interdiction from practising certain professional or entrepreneurial activities. Both the «Coercive» and the «Interdictive» precautionary measures directly apply to persons, so they are called «Personal Precautionary Measures». Other measures, such as «Precautionary sequestrations», apply to things and are called «Effective Precautionary Measures» (in Italian Misure cautelari reali ). We have to consider another measure stated under Article No. 168-bis of the Italian Penal Code: in case of crimes punishable only by monetary penalty or punishable by imprisonment not exceeding four years ( as the maximum penalty), defendants may request a «Suspension of the criminal trial with probation» («Sospensione del processo penale con messa alla prova»). 38

39 Which institution is competent to make decisions and on which grounds? Precautionary measures are generally adopted during the preliminary investigations by a Judge («Judge for Preliminary Investigations» or «Giudice per le indagini preliminari» in Italian), but they can also be adopted afterwards, during the phase of the proceeding before the sentence, by the Judge for Preliminary Hearings or the Trial Judge. The Judge decides on the adoption of the measure required by the prosecutor (called «Pubblico Ministero»). The ruling of the Judge must always specify a motivation on which the decision is taken. The adoption of those measures is only possible when there are good reasons for suspecting the defendant is guilty (fumus commissi delicti) and on the basis of the following grounds: to prevent the suspect or the defendant from (1) fleeing or (2) committing another crime or (3) destroying true evidence or creating false evidence. According to Article No. 168-bis of the Italian Penal Code, in case of «suspension of the trial with probation» (Sospensione del procedimento con messa alla prova dell imputato), the accused is required to eliminate dangerous or harmful consequences of the crime he/she has committed and, when it is possible, to pay damages. The Trial Judge commits the accused to social services, under the control of which he/she must carry out a program concerning both voluntary activities of social importance and a public utility job without any salary. What references are made to international or supranational norms and standards? (1) Council of Europe, Recommendation No. R(99)22 on prison overcrowding and prison population inflation (adopted by the Committee of Ministers on 30 Sept. 1999); (2) Council of Europe, Recommendation Rec(2006)13 of the Committee of Ministers to member states on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse; (3) European Convention on Human Rights; (4) ECHR (European Court of Human Rights, Council of Europe), , 39

40 Torreggiani and others v. Italy; (5) European Union, Directive 2012/29/EU of the European Parliament and of the Council of 25 th October 2012, «establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA» (About the right of the victims to receive information about the revocation of the precautionary measures adopted, especially in case of a violent crime) What alternatives to imprisonment are legally available in the phase of post-trial detention? In the phase of post-trial detention of sentenced persons, Italian Law , No. 354 (Italian Penitentiary Act), from article No. 47 to article No. 58-quinquies, envisages the following alternatives to detention (called «Alternative measures to detention», «Misure alternative alla detenzione» in Italian): (1) community measures such as «the assignment of offenders to Social Services on probation» («Affidamento in prova al servizio sociale»); (2) Home detention («Detenzione domiciliare»); (3) Alternative measures to detention applied to persons suffering from established AIDS or persons suffering from serious immunodeficiency conditions (who are undergoing or are willing to undergo a medical assistance program in a hospital or in a university centre for infectious diseases or in care units providing assistance to people with AIDS, in accordance with regional plans); (4) Special home detention («Detenzione domiciliare speciale»), concerning sentenced mothers of children not older than 10; (5) Partial release from prison («Semi-libertà») (i.e. freedom to leave the prison and work outside during the day). Under the Penitentiary Act we can also find the following measures, which allow offenders to have or re-estabilish family and social relationships, work habits, and access to work: (a) Work release program («Lavoro all esterno», under Article No. 21 of the Penitentiary Act); (b) Reward leave permits («Permessi-premio», under Article No. 30 of the Penitentiary Act); (c) leave for offenders in partial release from prison and for internees («Licenze a condannati ammessi al regime di semi-libertà» e «Licenze agli internati», under Articles No. 52 and 53 of the Penitentiary Act); (d) early release («Liberazione anticipata», under Article No. 54 of the 40

41 Penitentiary Act); (e) release from debt («Remissione del debito», under Article No. 54 of the Penitentiary Act). Then we can find the «substitute sanctions» («Sanzioni sostitutive delle pene detentive brevi»), that the Judge may apply instead of imprisonment: (a) semi-detention («Semi-detenzione), when the penalty doesn t exceed the duration of one year; (b) monitored liberty («Libertà controllata»), when the penalty doesn t exceed six months; (c) payment of a fine («Pena pecuniaria»), when the penalty doesn t exceed three months. Other measures are stated out of the Penitentiary Act, the most important of which are: (a) the «Assignment of special categories of offenders to the Probation Service» («Affidamento in prova in casi particolari»), regulated under Article No. 94 of the Italian Presidential decree No. 309/1990; (b) «Suspended sentences for drug and alcohol addicts» («Sospensione dell esecuzione della pena detentiva»), regulated under Articles No of the Italian Presidential decree No. 309/1990; (c) execution of penalty detention (when it doesn t exceed eighteen months) at sentenced person s home or at another public or private location where the criminal can receive treatment, care and hospitalisation (according to Article No. 1 of the Italian Law No. 199/2010, entitled «Esecuzione presso il domicilio delle pene detentive non superiori a diciotto mesi»); (d) «conditional release» or «parole» («Liberazione condizionale»), under Article No. 176 of the Italian Penal Code. Under the Italian Penal Code we can also find different kinds of measures, alternatives to imprisonment, called «security measures» («misure di sicurezza», in Italian. See the list under Article No. 215 of Italian Penal Code), which can be adopted when the offender is considered «socially dangerous»: (a) probation, police supervision and other sets of conditions stated by the Judge case by case («Libertà vigilata», Articles No of the Italian Penal Code); (b) prohibition of residence («Divieto di soggiorno», Article No. 233 of the Italian Penal Code); (c) prohibition from entering taverns and other public house where alcoholic beverages are sold («Divieto di frequentare osterie e pubblici spacci di bevande alcoliche», Article No. 234 fo the Italian Criminal Code); (d) expulsion of a foreign person from Italy («Espulsione od allontanamento dello straniero dallo Stato», Article No. 234 of the Italian Penal Code) About modalities of the execution of alternative measures to detention: (a) according to Article No. 58-quinquies of the Italian Penitentiary Act, «Home detention» may be given to a sentenced person if: (a1) he/she is seventy years old (also during the detention period); (a2) she is pregnant; (a3) she is a mother of a child under 10 and the child lives with her; (a4) he is a father of a child under 10 and the 41

42 child lives with him and child s mother is dead or under no circumstances is be able to take care of him/her; (a5) he/she is a person whose health is so bad that they would require constant health care in local sanitary structures; (a6) he/she is sixty years old and (also partially) incapable; (a7) he/she is a person who is less than twenty-one and has health, study, job or family related issues; (b) according to Article No. 58- quinquies of the Italian Penitentiary Act, Surveillance Judge or Surveillance Court may prescribe control procedures through electronic monitoring (such as electronic bracelet or other technical instruments), when they order «home detention» (detenzione domiciliare); (c) according to Article No. 47-quater of the Italian Penitentiary Act, probation («Affidamento in prova ai servizi sociali») and home detention («Detenzione domiciliare») are alternative measures to detention that may be applied to people suffering from full blown AIDS or people suffering from serious immunodeficiency conditions (who are undergoing or are willing to undergo a medical assistance programme in a hospital or in a university centre for infectious diseases or in care units providing assistance to people with AIDS, in accordance with regional plans), so they can receive health care and assistance; (d) according to Article No. 47-quinquies of the Italian Penitentiary Act, «Special home detention» («Detenzione domiciliare speciale») may be provided to sentenced mothers of children who are less than 10 years old, so that they can develop and maintain positive relationships with their children. Which institution is competent to make decisions and on which grounds? The Trial Courts and the Sentencing Judge are competent to make decisions about sanctions and alternative measures to imprisonment at the end of the criminal proceeding. Regarding sentenced people, we have to consider the important role of the Surveillance Magistracy in the Italian prison system, with a specific competence on penitentiary matters. It has the task of (1) supervising the enforcement of sentences, (2) applying alternative measures to imprisonment, (3) carrying out alternative sanctions and (4) applying and enforcing security measures. 42

43 What references are made to international or supranational norms and standards? (1) Council of Europe, Recommendation No. R(99)22 concerning prison overcrowding and prison population inflation (adopted by the Committee of Ministers on 30 Sept. 1999) (2) European Convention on Human Rights (3) ECHR (European Court of Human Rights, Council of Europe), , Torreggiani and others v. Italy (4) European Union, Directive 2012/29/EU of the European parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals; (5) European Union, Directive 2012/29/EU of the European parliament and of the Council of 25 October 2012, «establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA» (About the right of the victims to receive information about the revocation of a precautionary measures adopted, especially in case of a violent crime) 2. Political and social context of alternatives to imprisonment Central questions to be addressed: 2.1. What is the socio-demographic profile of persons imprisoned (distinguish between pre-trial and post-trial detention)? According to the statistics of the Italian Ministry of Justice (and the Department of Prison Administration), the sociodemographic profile of prisoners in Italy at the 30 June 2014 is the following: (A) Italian and stranger Inmates by Gender 43

44 Males Females Total Adult Inmates (B) Italian and Stranger Jail Inmates by Marital Status Marital status Italian inmates Stranger inmates Italian and stranger inmates Single (Unmarried) Married Widowed Divorced Legally Separated Common law married Missing Total (C) Italian and Stranger Inmates by Education Education Italian inmates Stranger inmates Italian and stranger inmates University (Master s degree or Bachelor s degree) Secondary School / High School Professional School

45 Middle/Intermediate School Primary School Without Qualification Illiterate Missing Total (D) Italian and Stranger Inmates by Age Age Italian inmates Stranger inmates Italian and stranger inmates or older

46 Missing Total (E) Stranger Inmates by Area of Origin Continent Areas Inmates UE 4438 Former Yugoslavia 741 Europe Albania 2612 Other European Countries 538 Subtotal (Europe) 8329 Tunisia 2199 Morocco 3424 Africa Algeria 462 Nigeria 764 Other African Countries 1843 Subtotal (Africa) 8692 Middle East 215 Asia Other Asian Countries 908 Subtotal (Asia) 1123 America North 19 46

47 Centre 311 South 910 Subtotal (America) 1240 Other 17 Total Stranger Inmates (F) Alternative measures, public utility job, security measures, alternative sanctions and probation Probation («Affidamento in prova al servizio sociale») Partial release from prison («Semilibertà») 821 Home detention («Detenzione domiciliare») Public utility job («Lavoro di pubblica utilità») 5247 Release under judicial review as security measure («Libertà vigilata») Release under judicial review replacing short imprisonment period («Libertà controllata») Semi-detention («Semidetenzione») 9 Parole («Sospensione condizionale della pena») 0 Total (G) Other measures (1 st semester 2014) 47

48 Special permits granted to inmates (Permessi premio concessi ai detenuti) (H) Inmates released from prison under Italian Law No. 199/2010 (*) Italian Inmates Stranger Inmates Total Males Females Subtotal (M/F) Males Females Subtotal (M/F) (*) Execution of penalty detention (when it doesn t exceed eighteen months) out of prison, at sentenced person s home or at another public or private location where the criminal can receive treatment, care and hospitality 2.2. What are the main arguments (political, social, philosophical, economic, other) used to design and implement alternatives to imprisonment (distinguish between pretrial detention of suspects and post-trial detention of sentenced persons)? One of the main arguments used to design and implement alternatives to imprisonment is based on the need for reducing prison population, especially after the court case «Torreggiani and others v. Italy», decided by the ECHR (European Court of Human Rights, Council of Europe) with decision dated The inmates are held in overcrowded conditions. So the alternative measures to detention can be considered the means by which human rights can be assured to them. Other relevant arguments concern: a) rehabilitative function of punishment (in regard of which detention is surely less effective); b) costs (imprisonment is generally much more expensive than alternative measures); c) impact on victims (alternative measures can hold more benefits to victims of crimes, also in the perspective of restorative justice). 48

49 Which programmes exist to deal with the following aspects for suspects/sentenced persons? About the existing programmes relating to education, work, psychological and social wellbeing and other important aspects for suspects/sentenced persons, the Circular of the Ministry of Justice dated 4 August 2011 appears very relevant. Its subject concerns the «Guidelines about a Transnational and Interregional Project on Social and labor inclusion of sentenced persons» («Progetto interregionale transnazionale Inclusione socio-lavorativa dei soggetti in esecuzione penale - Linee Guida»). The primary aim is to strengthen the public entities capacity of being involved in the implementation of measures concerning social inclusion, encouraging participatory planning of sentenced persons. In this document it is stated that it has been established: (1) a «Steering committee» («Comitato di Pilotaggio»), by which the representatives of the prison administration and other entities exercise coordination and control functions); (2) a «Participatory Planning Committee on Interventions in Social Inclusion» («Tavolo di programmazione partecipata degli interventi di inclusione sociale»). Associations, Companies, Third Sector, and so on, may take part in this Committee, in relation to the activities to be programmed; (3) a «Technical Working Group» («Gruppo di lavoro tecnico»), with experts in monitoring and evaluation of projects. 2.3 What is the place of victims in the policies to design and implement alternatives to imprisonment? Victims usually have a marginal role during the trial and during the decision and the implementation concerning alternatives to imprisonment. According to the President of Surveillance Court of Bologna 1, when we consider the relationship between victims and their offenders during the period of execution of the sentence, «the risk today is that the attention to this relationship during prison term becomes only a technique of paraclinical interview or a generic mediation, neglecting the central themes of truth, responsibility, power and authority», which «are strictly linked to 1 F. Maisto, Il difficile rapporto autore-vittima e il ruolo del Tribunale di Sorveglianza, in Rivista di Criminologia, Vittimologia e Sicurezza, 2012, Vol. VI, n. 2, p. 40, available at the following URL: 49

50 reformation and/or re-education. Even if it is very hard to theorize about the legitimacy of punishment, ( ) from an ethical point of view» we can «hope for a change toward restorative justice and reconciliation opportunities coming from mediation mechanisms». Wider attention is paid to the victim's compensation and to the removal of harmful or dangerous effects caused to the victim by the offender in consequence of the crime (offence). In any case, in accordance with Article No of the Italian Penitentiary Act, the offender admitted to the probation with social services (id est, «affidato in prova al servizio sociale») must be required to activate himself in favour of his victim. 2.3-bis. The offender should compensate his/her victims for loss or injury caused to them, but damages («risarcimento del danno») cannot be considered a condition to obtain alternative measures to imprisonment. So, Surveillance Courts or Judges cannot refuse to grant alternatives to imprisonment on the merely fact that the offender doesn't pay the compensation to his victim (otherwise alternative measures could be accessible only for those who have sufficient economic capabilities to pay the compensation). See, ex multis, The judgment N. 2614/2012 of the Italian Supreme Court of Cassation, 1 st Criminal Section, that excludes the legitimacy of unconditional obligation of full compensation for the damages in case of decision about the admission to alternative measures to imprisonment What is the role of civil society in debates and policies about alternatives to imprisonment? Civil society, by means NGOs, are very active in relation to debates and policies about alternatives to imprisonment and in relation to their implementation in specific services to sentenced persons. For example, among these NGOs there is «Comunità Papa Giovanni XXIII» («Community of Pope John XXIII») Association, whose activities specifically concern also re-education of detainees, leading: (i) a project named «CEC» («Comunità Educante con i Carcerati», id est: «Community who Educates Detainees»); (ii) working tables with public entities and institutions; (iii) the EU project on «Reducing prison population: advanced tools of justice in Europe» (this project!) and other international projects (started in 1973 in Italy, the 50

51 «Community of Pope John XXIII» Association is now present in 25 countries of the five continents and is very active also at the United Nations). This NGO, in the field of prison situation, promotes reparative justice and a Person- Centered Approach in national and international contexts. So, other NGOs are very active in the cultural and scientific field. For example, The Italian Society of Victimology» (SIV, «Società Italiana di Vittimologia») promotes reparative justice as a means to assure more protection in favour of victims, stimulating the dialogue among civil society, academics, public authorities, by means of (i) a scientific journal (concerning criminology, victimology and security), (ii) studies and researches, (iii) public events (i.e. national and international congress) and (iv) international, national and local projects (focused on victim protection and other related aspects). 3. Cross-cutting and topical issues Central questions to be addressed: 3.1. Is the argument of cost-benefit-analysis used in designing and implementing policies towards alternatives to imprisonment? The argument of cost-benefit-analysis is often used in designing and implementing policies towards alternatives to imprisonment. According to the Community of Pope John XXIII Association, the above mentioned «CEC» Project, based on the logics of the reparative justice, permits to reduce recidivism from 70% (Italian national average) to 8% (average value of recidivism among detainees who carried out the CEC Project). This Association calculate that a detainee involved in the CEC Project (where CEC stands for «Comunità Educante con i Carcerati», id est: «Community who Educates Detainees») costs only 50 Euro (per day), almost ¼ of the cost of the same detainee held in prison (see average cost per prisoner in 2007; in any case, more than ½ in other years). Furthermore, as already remarked above, when sentenced persons are involved in CEC Project recidivism is reduced from 70% to 8%. There are several studies dealing with costs of imprisonment. According to the Department of Prison Administration (Directorate-General for Budget and Accounting, 51

52 Training and Budget Management Office) at Ministry of Justice, the average cost paid for each prisoner from 2001 to 2013 is calculated as shown in the following table. Cost per prisoner from 2001 to 2013 (Average Cost of Holding One Prisoner per Day) (*) Year Prison population Average Cost of a Single Prisoner per Day , , , , , , , , , , , , ,78 (*) More details at the following url:

53 Alternative measures (home detention, community sanction, and so on) are cheaper than imprisonment and can permit to save relevant resource that could be invested in other more effective strategies Are there any debates about the position of psychiatric patients in relation to ordinary detainees? When sentenced persons are psychiatric patients, they are held in Judicial Psychiatric Hospitals («Ospedali Psichiatrici Giudiziari»). Treatment into these institutions is provided also when the penalty is ended but the inmate is considered socially dangerous. The new Italian Law No. 81/2014, which converts in Law with modifications the Law-Decree No. 52/2014 concerning urgent dispositions about overcoming Judicial Psychiatric Hospitals, states that the six Italian Judicial Psychiatric Hospitals will be closed not later than and substituted with REMS («Residenze per l Esecuzione delle Misure di Sicurezza»; i.e. «Residences for Execution of Security Measures»). In any case, the application of the alternative security measures may not exceed the duration of the maximum penalty prescribed by law for the crime committed by the psychiatric patient, to whom therapeutic and rehabilitative individual paths must be applied. 3.2-bis. A specific consideration can be formulated about persons who use drug and alcohol. According to the Articles No of the Italian Presidential decree No. 309/1990, they can have sentences (for drug and alcohol addiction) suspended, in case of imprisonment. Besides, according to the Article No. 94 of the same Act, the sentenced person, in case of drug or alcohol addiction, may be entrusted to social services, whose responsible members have to control that he/she must follow a specific program. In any case, according to the Articles No. 95 and 96, the execution of detention («pena detentiva») or remand («custodia cautelare») in consequence of crimes committed by the drug addict in relation to his/her status of drug addict must be served in institutes or structures, adequate for therapeutical and rehabilitative programs Are there any debates about the place of foreigners who are imprisoned? Imprisoned foreigners generally serve their sentence like other detainees. According to the 53

54 official statistic provided by the Italian Ministry of Justice, prison population counts inmates, whose are foreigners. Furthermore, according to the Italian Constitutional Court s decision No. 78/2007 (where we can find correct interpretation of the Articles No. 47, 48 and 50 of the Italian Penitentiary Act), alternative measures to detention are applicable also to the extra-ue foreigners who entered illegally into Italy or who don t have any «permit to stay» («permesso di soggiorno»). A different interpretation is against the Italian Constitution. We have to consider also the Article No. 312 of the Italian Criminal Code, according to which the judge can order the expulsion of a foreigner from Italy or the removal («allontanamento») of a citizen of another UE Member State: (1) when they are sentenced in consequence of one of the crime punished under the Title I («Crimes against the personality of the State» - «Dei delitti contro la personalità dello Stato»), Book 3 rd, of the Italian Criminal Code; (2) in the other cases stated by law. 4. Concluding remarks: the future of alternatives to imprisonment By means of the recent Law No. 67/2014, the Italian Parliament has delegated the Italian Government to reform the Italian system of penalty sanctions, introducing a wider application of detention out of prison: in primis «Home detention» (also with electronic systems for monitoring sentenced persons). The Government is delegated also to transform several crimes in administrative offences («illeciti amministrativi»), fixing appropriate and effective sanctions, proportional to the importance of violations. A very interesting aspect of the Law No. 67/2014 is stated at its Article No. 2.3, lett. c), d), e), where the annunciated reform deals with «civil pecuniary penalties» («pene pecuniarie civili») in addition to civil damages («risarcimento del danno»). They should be proportional to: (a) the importance of the violation; (b) the reiteration of the offences; (c) to the enrichment of the offender; (d) the personal characteristics of the offender (in particular: his/her personality; his/her economic conditions). They should to be applied also taking into account the conduct of the offender (in particular: in case of reduction or elimination of the consequence caused to the victim through the committed offences). They seem to be very important measures, because they could open new streets to 54

55 reparative justice especially whether the reform gives to the judge the possibility to fix specific conditions (or conducts) that the offender has to observe for having lighter sanctions. On this one and other relevant aspects of the new reform, enunciated in the above mentioned Law No. 67/2014, debates, studies, researches and reflections will be focused in the near future. 55

56 GERMANY (Alexander Bähr, Prof. Arthur Hartmann, Felix Steengrafe) 1. General legal framework Central questions to be addressed: 1.1. What alternatives to imprisonment are legally available in the phase of pretrial detention? The purpose of the pretrial detention is the enforcement of the detection of a crime and the punishment of the offender as soon as possible. Furthermore the enforcement of the sentence of imprisonment should be guaranteed through the pretrial detention (cf. BVerfGE 19, 342 (348); BVerfGE 20, 45 (49); BVerfG NJW 1991, 1043 (1043); Meyer-Goßner; Schmitt-Schmitt, StPO, Vor 112, Rn. 4). But the pretrial detention is the arrest of a not yet convicted person. In this respect a conflict exists between the pretrial detention on the one hand and the supposition of innocence on the other hand (cf. BVerfGE 19, 342 (347); BVerfGE 20, 45 (49); BVerfGE 53, 152 (158); Meyer-Goßner; Schmitt-Schmitt, StPO, Vor 112, Rn. 2 HK-GS/Laue, StPO, 112, Rn. 1).However a pretrial detention is recognized to be generally lawful but due to the supposition of innocence the pretrial detention can be arranged only in strictly restricted cases. Additionally a consideration between the suspected innocence of the accused person based on the supposition of innocence and the interest in effective criminal proceedings is necessary (cf. Meyer-Goßner/Schmitt-Schmitt, StPO, Vor 112, Rn. 2; HK-GS/Laue, StPO, 112, Rn. 1). Therefore, the pretrial detention can only be arranged or maintained, when the interest of the public welfare in the enforcement of the pretrial detention is prevailing. However, in the literature the electronic foot chain partially is considered to be a substitution of a pretrial detention (cf. Schünemann, GA 2008, 314 (332); Meyer-Goßner/Schmitt-Schmitt, StPO, Vor 112, Rn. 2). 2. Regulations of the German Code of Criminal Procedure The rules of the arrangement of the pretrial detention are part of the StPO (German Code of Criminal Procedure). The provisions of the pretrial detention are, beside the regulations of the German Code of Criminal Procedure, influenced through the German constitutional law and the European Convention on Human Rights (ECHR). The ECHR is an international agreement. 56

57 Therefore the Convention is not part of the supranational law of the European Union (cf. Pabel, EMRK, 3 Rn. 1). The ECHR is not part of the constitutional law in Germany (cf. Pabel, EMRK, 3 Rn. 2). However the Federal Constitutional Court (BVerfG) considers the provisions of the ECHR when interpreting the national fundamental rights guaranteed in the Grundgesetz (German Constitution). Therefore the regulations of the ECHR have a constitutional-juridical dimension. According to article 104 paragraph 2 s. 1 German Constitution a judge basically decrees an arrest warrant. Before the indictment a co-operation of the public prosecutor's office is necessary for the decree of an arrest warrant. Because the prosecutor is in accordance to sec. 120 paragraph 3 German Code of Criminal Procedure responsible for the preliminary proceedings he or she can apply (before the preferment of a charge) for the abolition of the arrest warrant (cf. Meyer-Goßner/Schmitt-Schmitt, StPO, 125, Rn. 8). The judge will only decree an arrest warrant, if the public prosecutor's office is not accessible and if there is an imminent danger (cf. Meyer-Goßner/Schmitt-Schmitt, StPO, 125, Rn. 9). After the charge the court can decree an arrest warrant ex officio. But the prosecutor has the right to be heard by the court (cf. Meyer- Goßner/Schmitt-Schmitt, StPO, 125, Rn. 10). For the decree of the pretrial detention a sufficient suspicion and a reason for arrest in the sense of sec. 112, 112a German Code of Criminal Procedure is necessary. The reasons for arrest are: escape (sec.112 paragraph 2 No. 1 German Code of Criminal Procedure), a risk that the accused person will evade the criminal proceedings (sec. 112 Paragraph 2 No. 2 German Code of Criminal Procedure), strong suspicion that the accused person may manipulate evidence (sec. 112 paragraph 2 No. 3 German Code of Criminal Procedure), severity of the offence (sec112 paragraph 3 German Code of Criminal Procedure Due to the constitutional influence in addition to the severity of the offence also a danger of absconding or a danger of collusion is necessary but the requirements of the reasoning are reduced. Therefore in cases of severe crimes it is sufficient that the danger of absconding or the danger of collusion cannot be excluded) as well as repeatedly or continually committing of specific offences (sec112a German Code of Criminal Procedure). According to sec. 114 German Code of Criminal Procedure the pretrial detention shall be imposed by the judge in a written warrant of arrest. As sec. 112 paragraph 1 s. 2 German Code of Criminal Procedure states a pretrial detention may not be ordered, if it is disproportionate to the significance of the case or to the penalty or measure of reform and prevention likely to be imposed. According to sec. 112 Paragraph 1 s. 2 German Code of Criminal Procedure a pretrial detention must not be decreed or maintained if it is disproportionate (cf. OLG Düsseldorf NStZ 1993, 554 (554); Hengsberger, JZ 1966, 209 (2010); Meyer-Goßner/Schmitt-Schmitt, StPO, 112, Rn. 8; HK-GS/Laue, StPO, 57

58 112, Rn. 7 with differences in detail). A pretrial detention is disproportionate, when the accused person submits voluntarily restrictions, as for example of the delivery of the passport or a voluntary treatment in a medical institution (cf. Meyer-Goßner/Schmitt-Schmitt, StPO, 112, Rn. 10; KK-Graf, 112, Rn. 52). Within the framework of proportionality the consequences for the life of the accused person and the significance of the case as well as the penalty must be balanced. This proportionality always depends on a case-by-case review. According to sec. 116 German Code of Criminal Procedure the execution of a warrant of arrest can be suspended. The refusal of the decree must occur or the execution of a warrant of arrest must be suspended, if the purpose of the pretrial detention can be achieved by another less affecting measure (cf. BVerfGE 19, 342 (351); BVerfG NJW 1991, 1043 (1043); Meyer- Goßner/Schmitt-Schmitt, StPO, 116, Rn. 1; HK-GS/Laue, StPO, 116, Rn. 1). The conditions in the sense of sec. 116 German Code of Criminal Procedure must be take into account when deciding about a pretrial detention (cf. OLG Köln NStZ 2012, 112 (112); Meyer- Goßner/Schmitt-Schmitt, StPO, 116, Rn. 1). The suspension of the execution of the arrest warrant occurs basically ex officio. Nevertheless, the public prosecutor's office or the accused person can apply for the suspension (cf. Meyer- Goßner/Schmitt-Schmitt, StPO, 116, Rn. 19; HK-GS/Laue, StPO, 116, Rn. 10). The rules of the suspension of the execution of the arrest warrant in the sense of sec. 116 German Code of Criminal Procedure differs in regard to the reason of the arrest. A rearrangement of the execution of the arrest warrant is referred to sec. 4 necessary, if one of the conditions of the No. 1 to 3 is given again. 2. Suspension of Execution at a risk of escape The judge shall suspend according to sec. 116 paragraph 1 German Code of Criminal Procedure the execution of a warrant of arrest which is justified merely by a risk of escape if the expectation is sufficiently substantiated that the purpose of remand detention may also be achieved by less severe measures. This measure must not guarantee the expectation that the accused person does not avoid the penal procedure, rather enough reasons are sufficient for this acceptance (cf. KK-Graf, 116, Rn. 10; HK-GS/Laue, StPO, 116, Rn. 4). Nevertheless, the regulation of the paragraph 1 is only applicable, as far as the pretrial detention is justified merely by a risk of escape and not by on another reason of arrest (cf. Meyer-Goßner/Schmitt-Schmitt, StPO, 116, Rn. 4). The new measure must be less severe and take the personality and the relations of the accused person into account. Furthermore the accused person must be able to 58

59 fulfill the measures and the measures must be justified by the purpose of the pretrial detention (cf. Meyer-Goßner/Schmitt-Schmitt, StPO, 116, Rn. 5; HK-GS/Laue, StPO, 116, Rn. 4 Neuhaus, StV 99, 340 (341)).A measure that has an atonement effect is also not allowed (cf. BVerfG NJW 1991, 1043 (1043); Meyer-Goßner/Schmitt-Schmitt, StPO, 116, Rn. 5;Kleinknecht, MDR 1965, 780 (784); KK-Graf, 116, Rn. 8; HK-GS/Laue, StPO, 116, Rn. 4). Sec. 116 paragraph 1 s. 2 German Code of Criminal Procedure contains catalogue of possible measures, which is a not closing. Some possible measures are standardized in sec. 116 para. 1 German Code of Criminal Procedure. No. 1 proposes the obligation to give at a certain time a call to an authority, No. 2 states that the accused person is not allowed to leave a restricted area without the permission of the judge or the prosecution authorities, No. 3 the obligation to leave one s flat only under supervision and finally as said in No. 4 the achievement of an adequate security. Other measures for the purposes of sec. 116 German Code of Criminal Procedure are for example the instruction to hand over the personnel papers to the authorities (a seizure would not be probably justified), to block the account book or the bank account or to join a drug therapy in a housing group (cf. Meyer-Goßner/Schmitt-Schmitt, StPO, 116, Rn. 11; OLG Saarbrücken NJW 1978, 2460 (2461)). The defens attorney of the accused person also can suggest in principle possible measures (cf. Neuhaus, StV 99, 340 (341); HK-GS/Laue, StPO, 116, Rn. 5). Basically several instructions and directions can be combined and such a combination is often suitable (cf. Meyer-Goßner/Schmitt-Schmitt, StPO, 116, Rn. 13). 3. Suspension of execution when danger of collusion is the reason for the arrest With reference to sec. 116 paragraph 2 German Code of Criminal Procedure the judge may also suspend the execution of a warrant of arrest which is justified for risk of tampering with evidence, if less severe measures sufficiently substantiate the expectation that they will considerably reduce the risk of tampering with evidence. The risk of tampering with evidence must not be excluded completely (cf. KK-Graf- 116, Rn. 21; Meyer-Goßner/Schmitt-Schmitt, StPO, 116, Rn. 14;HK-GS/Laue, StPO, 116, Rn. 8). The wording of sec. 116 paragraph 2 German Code of Criminal Procedure states that the judge "may also suspend execution of a warrant of arrest. This wording could be interpreted as a judicial discretion. Nevertheless the judge has to suspend the execution of a warrant of arrest, if the requirements of paragraph 2 are given. This is the result of the principle of proportionality (cf. Meyer-Goßner/Schmitt-Schmitt, StPO, 116, Rn. 14; HK-GS/Laue, StPO, 116, Rn. 8). Sentence 2 contains some measures that may be considered, for example contact with co- 59

60 accused persons, witnesses, or experts. 4. Suspension execution of a warrant of arrest issued in accordance with section 112a The judge may suspend execution of a warrant of arrest issued in accordance with section 112a provided there are sufficient grounds to assume that the accused will comply with certain instructions and that the purpose of detention will be fulfilled thereby. Nevertheless, such a measure will not contain regularly the expectation that the purpose of the pretrial detention is reached by this measure. According to sec. 112a paragraph 1 Nr. 1 German Code of Criminal Procedure a medical attendance or in the case of sec. 112a paragraph 1 Nr. 2 a direction of restraining order are be the only measures that would fulfill the purpose of the pretrial detention (cf. Meyer-Goßner/Schmitt-Schmitt, StPO, 116, Rn. 1). 5. Suspension execution of a warrant of arrest issued in accordance with sec. 112 paragraph 3 Criminal Proceeding Code A suspension of the execution of the arrest warrant in according to sec. 116 German Code of Criminal Procedure for an arrest warrant on account of the ground for arrest in the sense of sec. 112 paragraph 3 German Code of Criminal Procedure is not standardized in sec. 116 German Code of Criminal Procedure. Due to the principle of proportionality a suspension of the arrest warrant must be also occur for this ground for arrest, if the purpose of the pretrial detention can also be achieved by less serious measures (cf. BVerfGE 19, 342 (351); BVerfG NJW 1966, 772 (772); OLG Oldenburg StraFO 27 (27); OLG Frankfurt/M StV 2000, 374 (375); Meyer- Goßner/Schmitt-Schmitt, StPO, 116, Rn. 18) What alternatives to imprisonment are legally available in the phase of post-trial detention? The legal consequences of crimes are regularly determined by the judgment of the court. Deviating from such a judgment the termination of proceedings by the public prosecution office could be relevant regarding prison avoiding measures. The judicial fixing of the penalty is determined by the regulations of the StGB (Criminal Code), while the regulations regarding terminator of proceedings are determined by the German Code of Criminal Procedure. Basically, the interpretation of the constitutional-juridical norms is influenced by the national constitutional law including the European Convention on Human Rights according to the 60

61 constitutional court decisions Alternative sanctions like community measures, I. The rules of assessment of penalties The sanction system of the Criminal Code makes a distinction between sentences and disciplinary measures. Disciplinary measures should protect the general public against dangerousness of offenders, which has manifested itself through previous crimes, possibly by medical measures. However, the sentence is based on the guilt of the offender for the committed crime (cf. BGHSt 20, 264 (266);BGH NJW (2686); HK-GS/v. Danwitz, StGB, Vor 38, Rn. 3) and the duration of a prison sentence expresses the degree of illegality and the severity of the guilt (cf. BGHSt 20, 264 (266);BGH NJW (2686); HK-GS/v. Danwitz, StGB, Vor 38, Rn. 3). The guilt of the offender is, according to sec. 46 paragraph 1 s. 1 of the Criminal Code, the basis for the assessment of penalties. Therefore the question to what extent the offender has disturbed the legal system is relevant (cf. BGHSt 20, 264 (266);BGH NJW (2686); HK-GS/Rössner/Kempfer, StGB, 46, Rn. 12). Therefore other aspects such as moral considerations are not relevant regarding the metering of the sentence (cf. HK-GS/Rössner/Kempfer, StGB, 46, Rn. 12). This consideration of the guilt of the offender has two functions: It is the basis and at the same time the limitation of the penal frame (cf. Fischer, StGB, 46, Rn. 19; HK-GS/Rössner/Kempfer, StGB, 46, Rn. 12; with the same result BVerfGE 45, 187 (260). The sentence should allow on the one hand the compensation of the offender s guilt and on the other hand the offender to reflect on his crime (cf. Fischer, StGB, Rn 3). On the one hand the imposition of punishment should allow a compensation of the guilt and on the other hand it should allow the offender to reflect on his unlawful act, which in principle should lead to an "improvement" of the offender and should serve the goal of crime prevention (cf. Fischer, StGB, Rn 3). According to sentence 2 the effect of the sentence to the life of the offender has to be considered. Furthermore regarding the assessment of penalties the court has to weigh all circumstances which speak for and against the offender according to sec. 46 paragraph 2 Criminal Code. In sec. 46 paragraph 2 s. 2 of the Criminal Code some examples of various circumstances are enumerated. According to sec. 46a and sec. 46b of the Criminal Code the court can reduce the sentence according to sec. 49 paragraph 1 of the Criminal Code, or in the case of sec. 46a of the Criminal Code refrain from imposing criminal penalties, unless the 61

62 sentence to be imposed on the offender is imprisonment of more than one year or a fine of more than three hundred and sixty daily units. In the German criminal justice system the various criminal offences are divided into felonies and misdemeanors. According to sec. 12 paragraph 1 Criminal Code felonies are unlawful acts punishable by a minimum sentence of one year imprisonment, while misdemeanors are unlawful acts punishable by a lesser minimum amount of imprisonment or by a fine. Although every offense can be punished with imprisonment (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 6) the legislator has clearly ruled in sec. 47 Criminal Code that short termed imprisonments should be only imposed if special circumstances exist (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 6). In practice, only about one fifth of the criminal sentences are custodial sentences. Exceptions are intentional homicides, violent sexual offenses, violent robberies as well as extortion. In 95 % of such cases the sentence is imprisonment (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 6). A custodial sentence up to 2 years may be suspended on probation in accordance to sec. 56 Criminal Code. Thus short and medium terms custodial sentences should be reduced and the rehabilitation of offenders should be supported. The convicted person needs not go into jail, but he or she has to fulfill conditions and directions (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 7). All possible conditions in this sense are exhaustively listed in sec. 56b Criminal Code while the directions according to sec. 56c Criminal Code aren`t exhaustively listed (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 7). Therefore, the court can only choose conditions which are listed in sec. 56b Criminal Code while it can rather freely choose or even invent directions. Conditions have a satisfaction function and directions have a rehabilitation function (cf. MK- Groß, 56b, Rn. 1;HK-GS/v. Danwitz, StGB, Vor 38, Rn. 7). That is why conditions have the character of a punitive measure (cf. OLG Frankfurt am Main MDR 1994, 498 (499); HK- GS/Braasch, StGB, 56b, Rn. 1 MK-Groß, 56b, Rn. 1). This is intended to counteract the impression of the offender, that the suspended sentence of imprisonment on probation has no noticeable consequence. Additionally, the peace under law should be restored (cf. Schönke/Schröder-Stree/Kinzig, 56b, Rn. 1; HK-GS/Braasch, StGB, 56b, Rn. 1). Directions shouldn t make social integration and the aim of a future life without crime more difficult (cf. MK-Groß, 56b, Rn. 1;HK-GS/Braasch, StGB, 56b, Rn. 2).Conditions have to be selected under consideration of the question how the highest degree of satisfaction can be achieved (cf. HK-GS/Braasch, StGB, 56b, Rn. 2). A possible direction in this respect is a drug screening at certain time intervals (cf. BVerfG NJW 1993, 3315 (3316); OLG Zweibrücken NstZ 1989, 578 (578); Fischer, StGB, 56c, Rn 2a; NK-Ostendorf, 56c, Rn. 1). Due to the non-exhaustive character of directions the responsible court could chose directions freely as long as the 62

63 rehabilitation and the aim which is sought by the direction aren t endangered. Directions should help convicted to avoid further crimes (cf. LK-Gribbom, 56c, Rn. 1; HK-GS/Braasch, StGB, 56c, Rn. 1; NK-Ostendorf, 56c, Rn. 1). Not allowed are directions that do not build on this goal, for example measures to facilitate the monitoring of offenders. For this reason the use of electronic ankle bracelets or the electronically monitored house arrest is discussed controversial (for example cf. Schlömer, BewHi 1999, 31; Bammann, JA 2001, 471;HK-GS/Braasch, StGB, 56c, Rn. 1; Fischer, StGB, Rn 6; NK-Ostendorf, 56c, Rn. 1). In accordance with sec. 59 Criminal Code the court may also declare an admonishment with reservation of punishment. This is the mildest and rehabilitation supportive measure, nevertheless it is possible only with a fine of up to 180 daily rates. However this measure has a special character and therefore is only applied when less severely crimes have been committed (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 17). According to sec. 60 Criminal Code the court can order a discharge in exceptional cases, when the offender was affected himself so seriously by the consequences of the crime, that an imposition of penalties would be clearly inappropriate. However this shall not apply if the offender has incurred a sentence of imprisonment of more than one year for the offence. II. Termination of proceedings The prosecutors and the police are obliged by the so called principle of legality to pursue any initial suspicion. Exceptions of this rule are the so called Antragsdelikte (lit. request offenses). Those criminal offenses, such as home invasion according to sec. 123 Criminal Code, are only prosecuted upon application by the victim. An exception to the before mentioned rule are offenses which are in general request offenses, which however can be prosecuted if there is a high public interest, such as bodily injuries according to sec. 223 Criminal Code. Despite the principle of legality, the code of criminal procedure provides the possibility to terminate criminal investigation proceedings. 1. The termination of proceedings according to sec. 153 Section 1 German Code of Criminal Procedure A slight violation of criminal law provides no reason that social order is seriously violated. 63

64 Therefore the execution of a criminal proceeding would be disproportionate (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 22). A termination of proceedings by the prosecution according to sec. 153 German Code of Criminal Procedure is possible with misdemeanors as defined in sec. 12 paragraph 2 Criminal Code. Furthermore the offenders guilt has to be considered minor no further reasons for public prosecution may exist (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 22). In this issue the prosecutor has no discretion, contrary to the wording in sec. 153 paragraph 1 German Code of Criminal Procedure (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 23). Basically, the court has to approve the termination of proceedings according to sec. 153 paragraph 1 German Code of Criminal Procedure. But the approval of the court shall not be required in the case of a misdemeanor, which is not subject to an increased minimum penalty and where the consequences ensuing from the offence are minimal. 2. The termination of proceedings according to sec. 153a German Code of Criminal Procedure Furthermore, in cases of misdemeanors the prosecutor can terminate the proceedings with approval of the court and concurrently impose conditions and instructions upon the accused if these are suitable to eliminate the public interest in criminal prosecution and the degree of guilt is not withholding diversion. This option is based on the knowledge that the effects aimed by the punishment can also be reached by less drastic measures in such cases. Such a measure is seen as a sanction outside of the Criminal Code that burdens the accused person. However, due to the voluntary nature of such measures they do not assessed as a punishment (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 25). Possible conditions and instructions can be for example damage compensation, or to pay a sum of money to a non-profit-making institution or to the Treasury or to do community work (cf. HK-GS/v. Danwitz, StGB, Vor 38, Rn. 25). Not all conditions and instructions are enumerated in sec. 153 paragraph 1 of the German Code of Criminal Procedure, therefore the court is basically free in the determination of conditions and instructions. Literature: Dölling, D., Duttge, G., Rössner, D. (2013): Gesamtes Strafrecht Handkommentar. 3. Auflage, Nomos-Verlag. Baden-Baden - Citation: HK-GS/Author, Act, Section, Rn. Hengsberger, H. (1966): Untersuchungshaft im Strafprozessänderungsgesetz. In: Juristenzeitung, Citation: Hengsberger, JZ 1966, 209 (page) Kleinknecht, T. (1965): Entscheidungen über die Untersuchungshaft. In: Monatsschrift des 64

65 Rechts, Citation: Kleinknecht, MDR 1965, 780 (page) Schünemann, B. (2008): Prolegomena zu einer jeden künftigen Verteidigung, die in einem geheimdienstähnlichen Strafverfahren wird auftreten können. In: Goltammer s Archiv für Strafrecht, Citation: Schünemann, GA 2008, 314 (page) Neuhaus, R. (1999): Haftverschonungsauflagen und ihre Kontrolle. In: Strafverteidiger, Citation: Neuhaus, StV 99, 340 (page) Hannich, R. (2013): Karlsruher Kommentar zur Strafprozessordnung. 7. Auflage, Beck-Verlag. München - Citation: KK-Author, Section Rn. Meyer-Goßner, L., Schmitt, B. (2014): Strafprozessordnung. 57. Auflage, Beck-Verlag. München -Citation: Meyer-Goßner/Schmitt-Author, Act, Section, Rn. Fischer, T. (2014): Strafgesetzbuch mit Nebengesetzen, 61. Auflage, Berlag-Verlag. München - Citation: Fischer, StGB, Section, Rn. Von Heintschel-Heinegg, B. (2012): Münchener Kommentar zum Strafgesetzbuch Band b StGB, 2. Auflage, Beck-Verlag. München - Citation: MK-Author, Section, Rn. Schönke, A., Schröder, H. (2014): Strafgesetzbuch Kommentar, 29. Auflage, Beck-Verlag. München- Citation: Schönke/Schröder-Author, Section, Rn. Jähnke, B., Laufhütte, H. W., Odersky, W. (2003): Leipziger Kommentar zum Strafgesetzbuch 2. Band, 11. Auflage, De Gruyter-Verlag. Berlin - Citation: LK-Author, Section, Rn. Kindhäuser, U., Neumann, U., Paeffgen, H.-U. (2010): Strafgesetzbuch Kommentar Band 1, 3. Auflage, Nomos Verlag. Baden-Baden - Citation: NK-Author, Section, Rn. Bammann, K. (2001): Anwendbarkeit des elektronisch überwachten Hausarrests in Deutschland?. In: Juristische Arbeitsblätter, Citation: Bammann, JA 2001, page Schlömer, U. (1999): Die Anwendbarkeit des elektronisch überwachten Hausarrests als Bewährungsbeweisung nach geltendem Recht. In: Bewährungshilfe, Citation: Schlömer, BewHi 1999, page Grabenwarter, C., Pabel, K. (2012): Europäische Menschenrechtskonvention, 5. Auflage, Beck- Verlag- München - Citation: Grabenwarter / Pabel, EMRK, Section Rn. 2. Political and social context of alternatives to imprisonment Central questions to be addressed: 2.1. What is the socio-demographic profile of persons imprisoned (distinguish between pretrial and post-trial detention)? 65

66 In Germany you can find socio-demographic information about prisoners in the Strafvollzugsstatistik (statistics about the execution of custodial sentences). This statistics is published annually and can be downloaded for free. It covers all prisoners, [ ] which were imprisoned at the survey date and also all prisoners which were in preventive detention in forensic psychiatric hospitals at the survey date 2 and has the following content: Demographic characteristics of prisoners (age, sex, nationality, place of residence at home / abroad, marital status), type of offense, type and probable duration of the detention and type and frequency of prior convictions. 3 [own translation] The survey date is March 31 st in every year. Additional socio-demographic information about prisoners, for example about the educational level or ethnicity, can`t be found in the Strafvollzugsstatistik and must be taken from other sources. In the statistics Bestand der Gefangenen und Verwahrten in den deutschen Justizvollzugsanstalten (number of prisoners and detainees in German prisons) you can find information about the number of prisoners mapped to the type of imprisonment, the duration of imprisonment as well as other characteristics. To answer the questions asked above we refer to the two aforementioned statistics. On March 31 st, 2013 there were in Germany a total of prisoners (both open and closed imprisonment). As shown in the following figure, the number of prisoners has been declining since In 2003 there were a total of and in the year 2013 a total of prisoners. Accordingly calculating back to 2003 there was a decrease of prisoners. In 2013 there were a total of prisoners in pre-trial-detention. Also the number of prisoners in pre-trialdetention is declining almost continuously since There was a minor increase from 2011 to 2012, but the number decreased again in the following year. In the year 2003 about 21 % of the prisoners were in pre-trial detention. The percentage fluctuated in the following years between this 21 % and 15 % in the years 2009 up to 2011 inclusive. 4 2 Statistisches Bundesamt (2011): Qualitätsbericht. Strafvollzugsstatistik. (Stichtagserhebung im Strafvollzug zu demographischen und kriminologischen Merkmalen der Strafgefangenen und Sicherungsverwahrten). Online access: blob=publication File, last opened on Ibid. 4 Statistisches Bundesamt (2014): Bestand der Gefangenen und Verwahrten in den deutschen Justizvollzugsanstalten nach ihrer Unterbringung auf Haftplätzen des geschlossenen und offenen Vollzugs jeweils zu den Stichtagen 31. März, 31. August und 30. November eines Jahres. Online access: erwahrtepdf_ pdf? blob=publicationfile, last opened on

67 Insg Davon U-Haft Insg. Davon U-Haft Abbildung 1: Change in the number of prisoners and detainees in the German correctional institutions (Each reporting day: of the survey year (own presentation) Concerning the prisoners in pre-trial-detention on March 31 st 2013 it should be noted, that of them are male and 655 of them are female. 348 of them were from 14 up to 18 years old. 25 of these 348 prisoners are female. 18 up to 21 years old were prisoners and 61 of them are female. 21 years and older are most of the prisoners in pre-trial-detention, there are of them. 596 of them are female. Additional information about socio-demographic characteristics of prisoners in pre-trial detention can`t be acquired through official publicly accessible sources. 5 In the Strafvollzugsstatistik you can find more information about those aspects. It reveals that on March 31 st, 2013 from the total of prisoners are male and are female serve a prison sentence and of them are serving their sentence in the so called concept of open imprisonment prisoners are male and prisoners are female. The age and gender distribution of the imprisoned persons is shown in the following table. 6 5 Ibid. 6 Statistisches Bundesamt (2014): Strafvollzug Demographische und kriminologische Merkmale der Strafgefangenen zum Stichtag Online access:: pdf? blob=publicationfile, last opened on

68 Table 1: Age structure of the imprisoned on March 31, 2013 Male Female Age N % N % % 15 8% % 226 5% % 592 5% % 954 6% % 712 6% % 362 7% 60 and older % 160 8% A total of prisoners have their permanent residence in Germany and prisoners have their permanent residence abroad. 520 prisoners have either no permanent address or about those prisoners were no data available prisoners, which are serving a prison sentence, are Germans and are either foreigners or stateless persons. 8 According the updated census 2011 on March 31 st, 2013 nearly 73,82 million Germans and about 6,69 million foreigners lived in Germany. Therefore, the non-german prisoners are statistically overrepresented in German prisons (cf. Walter 2010: 40). 9 Regarding the marital status it can be stated that the majority of the prisoners inmates, are single. On the other hand prisoners are married, 733 are widowed and divorced are of them. 10 Further relevant socio-demographic information can be found in different studies that will be discussed below. In Germany however, based on the year 2013, there are [ ]no current detailed information on the living situations of inmates ( ) 11 available. Therefore, only access to older studies is possible. For this National Report some relevant information can be gained from the special analysis Lebenslagen straffällig gewordener Menschen (life situation of delinquent people) of the Bundesarbeitsgemeinschaft für Straffälligenhilfe e. V. (BAG-S) 7 Ibid. 8 Ibid. 9 Ibid. 10 Ibid last opened on

69 (National association for the support of offenders) A survey on imprisoned persons compared to a control group of interviewees has proved that 14.2% of the imprisoned have no graduation, while this finding applies to 7.4% of the total population of Germany. Concerning the achieved highest graduations the differences between the groups are not so clear, but according to the special analysis it is a fact [ ] that the group of the delinquent on the one hand has less often an educational attainment and on the other hand fewer higher educational qualifications. 12 Also regarding vocational training it can be stated, that the prisoners have less often finished successfully their vocational training or got an university degree then the total population of Germany. The high number of dropouts from vocational training is remarkable also. 30 % of the prisoners have cut off their started vocational training. The cut off rate in the total population of Germany however amounts to 1,6 %. 13 [own translation] The lower educational standard affects apparently negatively the income situation of the imprisoned persons. The special analysis of the BAG-S shows, that [ ] the majority of the offenders has a lower income then the comparative group: For 75 percent of the delinquents the income amounts to at least 400 Euros less than for 75 percent of the non-delinquents 14 Moreover prisoners are more often indebted then the group of not imprisoned people. Further they have more frequent health problems, e.g., alcoholism or drug addiction. A study from the year 2003 has proven that approximately from prisoners are dependent on alcohol. Besides, about one third of them were dependent on other anaesthetics at the same time (cf. Heimerdinger 2006: 91). Also Laubenthal points to the addiction problems of prisoners: The proportion of drug addicted prisoners is high: Estimates with regard to the consumption of hard drugs like heroin, cocaine, ace etc. vary between 10 and 40%, whereby most information lies with 30%. The portion of those, which have already consumed cannabis might be even higher and he concludes The life in prison is stamped highly by the addiction problems. (Laubenthal 2010: 351) [own translation] There are also differences between imprisoned persons and the all-german population concerning their residential situation. Thus 81.9% of the interviewees lived before the arrest in a lasting housing condition, while these were almost everybody with the interviewees of the 12 last opened on Other studies have the same results. Within this context Laubenthal points: Though prisoners have educational and vocational deficits in disproportionate frequency, this should not lead to the mono-causal interpretation that a lack of education is the cause of delinquency. (Laubenthal 2011: 253) 13 last opened on ibid., last opened on

70 control group. Furthermore the imprisoned persons have grown up exceptionally often in a difficult family situation or had a problematic circle of friends. For example, [ ] 35,7 % of narrow family members from the delinquent persons had alcohol or drug problems within the first 15 years of the delinquent`s lives. The relatives of the not delinquent interviewees have such problems significantly less often. 13,6 % of their narrow relatives had problems with alcohol or drugs 15 [own translation] and more than 20 % of the relatives of the interviewed inmates were condemned during their youth, while these were 3,3 % within in the control group. 16 A confirmation for the partly problematic living conditions of convicted persons can be found within the 2. Periodischen Sicherheitsbericht (2 nd periodic security report). In a section about the topic Probation services those problematic living conditions are described as follows: Many of the offenders which are under care of probation services are marked through social problems (like lacking vocational training and chronic unemployment, high debts) and personal difficulties and results of critical life events. (BMI; BMJ 2006: 603) [own translation] Within this context also the increased number of juvenile foreigners, which are imprisoned is critically evaluated: With prisoners immigrated from thirty or more nations, in pre-trial-detentioninstitutions even up to sixty nations, there can already observed a lot of occasions for national or ethnic tensions and even open "frictions". Additionally there is the problem of the lacking or even totally missing possibility of communication caused by the variety of languages and dialects. Furthermore the different religions have a high relevance, partly because of the various ritual needs of religious prisoners, partly because of the food orders or bans, partly because of the conflicts between the religions, not to mention from sects. The prisoners themselves suffer according to their origin and nationality from additional stress, for example because of restrictions regarding loosening of prison rules, lesser options to other offers of treatment or, finally, after partial or entire completion of the punishment, deportation or expulsion. (ibid.: 617) [own translation] 2.2. What are the main arguments (political, social, philosophical, economic, and other) used to design and implement alternatives to imprisonment (distinguish between pre-trial detention of suspects and post-trial detention of sentenced persons)? 15 ibid., last opened on ibid., last opened on

71 In the following some core arguments are presented, which are used to design and implement alternatives to imprisonment. A shortening of pre-trial detention was the goal of the project Custody avoidance by early penal defence. According to Jörg-Martin Jehle the German lawyer's association has pointed out the fact that arrests in Germany are imposed [ ] too often and too long. (Jehle 2004: 39) [own translation] To tackle the problem the early integration of a court-appointed defence attorney was suggested, because according to the law at that time only from a three-month pretrial detention a courtappointed defence attorney had to be called up. By the early integration of a court-appointed defence attorney a shortening of detention was presumed. Also some other positive effects were expected: Shortening of procedures (and with it also shortening of detention) by improved cooperation between the involved parties, economic aspects by improved cooperation of the accused, reduction of the psychic stress of the imprisoned person and with it an improvement of the institutional climate as well as strengthening the rule of law. (ibid.: 41) The accompanying evaluation of the project has shown: The project for the avoidance and shortening of the pretrial detention shortens the pre-trial detention as well as the penal procedures linked with it. (Hohmann-Fricke 2004: 53) [own translation] Furthermore the accompanying evaluation has demonstrated: According to the statements of the prison staff and the pre-trial detention attorneys the psychic stress of prisoners and the institutional climate has improved by the project and the early embedding of court-appointed defence attorneys. Providing early court-appointed defence attorneys is therefore a promissing concept for shortening detention and yields a strengthening of the rule of law. (Busse 2004: 69) [own translation] Furthermore presumably money can be saved by custody avoidance, therefore an economic advantage arises (ibid.: 69.) Also the 2. Periodische Sicherheitsbericht shows clearly that the economic factor is a relevant aspect of custody avoidance. In the report the benefits of suspended prison sentences (probation) are discussed. Concerning this matter the probationary service plays an important role: Considered under a criminal policy perspective, the probationary supervision associated with the probation service as a form of freedom restriction or the monitored freedom is a essential tool for limiting custodial sentences and forensic commitment, it reliefs in any case the prison system. (BMI; BMJ 2006: 597 f.) [own translation] Horst Entorf asked in this context the question: Penal system or custody avoidance what gives a better return? At the beginning of this article Entorf calculates that through the imprisonment of a person a gain of per anno would be caused. These benefits are compared to detention costs of about per year. The cost-benefit analysis thus gives a 71

72 benefit of 30,000 per year (cf. Entorf 2010: 15) Entorf explains that such calculations within the context of a discussion on reforming the prison system are only meaningful, if the costbenefit analysis would cover a larger period and would go more into detail. (cf. ibid.: 15). Roughly summarized Entorf understands by this "[...] the detention itself, b) the time after release, and c) the deterrent effect of the penal system" (ibid.: 15) [own translation] Because of the restricted space for this National Report only the conclusion of the project Costs and benefit of custody and custody avoidance from Entorf can be shown. He notes that, [ ] the penal system is worth on average. (ibid.: 21) [own translation] Nevertheless, the prison system is worth on average, but Entorf points to some offenses, explicitly mentioned are theft and drug offenses, in which the costs caused by imprisonment exceed its benefits. Entorf suggests that this negative cost-benefit balance should lead to think about prison alternatives (such as electronic ankle blacelets, driving bans) for subgroups of convicts (cf. ibid.: 21) Also for some politicians high detention costs are an important reason to consider alternatives to imprisonment. From the average of about prisoners annually in Nordrhein-Westfalen (NRW) about are imprisoned because they could not pay their fines. Kutschaty, the Minister of Justice in NRW, suggests community work like gardening or nursing as alternatives to imprisonment. 17 Therefore the project Schwitzen statt Sitzen (sweating instead of imprisonment) exists. In the perspective of the Ministry of Justice community working as an alternative for imprisonment has some benefits: It (alternative) saves not only the cost of imprisonment, but helps also to avoid unnecessary prison experience. Offenders, who are unemployed for a long time, can re-learn a regulated rhythm of work and increase their chances on the labor market. Also the general public benefits from such community work. 18 [own translation] Also the withdrawal of driving licenses as an alternative to imprisonment is envisaged. Furthermore the party Bündnis 90 Die Grünen from the parliament of the federal state of Lower Saxony advocates for alternatives to imprisonment. The party criticized the quality of accommodation of prisoners due to overcrowded prisons. In a press release from the year 2002 they point out: Fuller prisons while the crime rate is decreasing are a consequence of a failed criminal policy that put more and more on repression than on outpatient treatment for , last opened on last opened on

73 rehabilitation and prevention of re-offending. 19 [own translation] The overcrowding would lead to an increased aggression among the prisoners. Additionally there are too little vocational training possibilities. This lack would make the rehabilitation of prisoners even harder. 20 In the documentation of an expert discussion in the year 2002 in the federal state of Northrhine- Westfalia (NRW) about the topic Which effects have concepts for avoiding imprisonment on the justice in NRW? Sybille Haussmann from the party Bündnis 90 Die Grünen from the state parliament of NRW gives three reasons for alternatives for imprisonment. From her point of view the question for alternatives to imprisonment is a question of [ ] human dignity. As long as there are alternatives for compensating the guilt of the offender, those alternatives have to be used. (Haussmann 2002: 3) [own translation] Furthermore she states that avoiding imprisonment is making a contribution to prevention, because a detention could cause a destabilization of living conditions, for example, by the loss of the job or friends. As the last argument she states the protection of victims caused by alternatives to imprisonment. Thus, alternatives to imprisonment, such as the Täter-Opfer-Ausgleich (victim-offendermediation/restorative justice), could lead to the result that the offender may better empathize with the situation of the victim and the likelihood of a relapse will thereby reduced (cf. ibid.: 3). Also the party Die Linke in Brandenburg expresses in their election program for state election in In this program the party states: We continue to rely on a punitive philosophy that is focused on a sustainable rehabilitation. We support prison avoiding projects by early outpatient social-educational measures and conflict resolution outside the courts, such as the victimoffender-mediation. A successful and lasting rehabilitation is the best protection of the society for relapses in new offenses. [ ] Indispensable are appropriate structures and financial resources to accomplish more treatment in prison, more housing imprisonment, more open prisons and a better reintegration. Offers for educational training, vocational training, further education and the number of job opportunities during imprisonment should be increased, as they can make an important contribution to a successful rehabilitation. We are committed to jobs with social security contributions during the detention period. [ ] Therapeutic treatment and care as well as social care need to be further strengthened. This includes the comprehensive expansion of forensic outpatient clinics in Brandenburg. (Die Linke Brandenburg 2014: 43) 19 last opened on last opened on

74 [own translation] In the framework of alternatives to imprisonment the deferral of the enforcement according to sec. 35 BtMG (German Narcotics Act) is relevant. According to the experts point of view the introduction of a deferral solution for narcotics addicted offenders could relief the penal system in the extent in which convicted offenders could be immediately placed into therapy-institutions, the duration of imprisonment either totally is avoided or is reduced by therapy (cf. Laubenthal 2010: 353). How many prison days per year could be saved depends on the specific legal structure of such a therapy-regulation, ultimately it depends on the number of addicted offenders, who would benefit from this kind of deferral solution. Thus, in the hearing of many experts, the inclusion of those offenders, who are serving a custodial sanction, was strongly advocated. This would provide, given the high prevalence of alcohol dependence in this group of offenders, a significant additional relief. (cf. Heimerdinger 2006: 181) Furthermore, in Germany socio-therapeutic offers are available for offenders, especially for sex and violent offenders. For example, sex offenders, who were sentenced to an imprisonment of at least 2 years and meet certain further criteria, must be necessarily placed in a social therapeutic institution. (cf. BMI; BMJ 2006: 625). Some of the before mentioned arguments against the penal system are taken from Kaiser and Schöch. They observed in the year 2003, that because of overcrowding, increase of violence, drug trafficking and acquisitive crime in prisons it is spoken of a Crisis of the imprisonment and penal system. (Kaiser; Schöch 2003: 71) [own translation] By the overcrowding the human dignity of the prisoners is negatively affected and the chances for a successful penal system are endangered (cf. ibid.: 71). This finding of an increased aggressiveness from and among prisoners in the penal execution is empirically made clear by the study Violence among prisoners done by the criminological service of the federal state of NRW in the year The study focused on the the amount of violence among the prisoners in NRW with the finding, [ ] that most registered acts of violence among the prisoners were assaults and offences causing bodily harm, which are similarily reported on schools. Violence in prisons shouldn t be seen basically as an isolated and special problem within the penal system. [own translation] (Wirth 2007: 189) Furthermore Wirth finds out that especially young prisoners, because of their socialization use the Faustrecht (Law of the strongest) to solve their problems (cf. ibid.: 189). Though the results of such offences of violence are in about half of the cases rather marginal and only in less than 10 % of the cases more serious according to Wirth. Violence in prisons is still an everyday 74

75 phenomenon (cf. ibid.: 191 f.). In the conclusion Wirth expresses to draw different conclusions from the results of the study. Especially in jails for juveniles [ ] vocational trainings and jobs close to the labor market should be offered for appropriate prisoners, especially for those with a high need of vocational training, these offers should be extended to create perspectives for the prisoners (ibid.: 205) [own translation] Also the study Viktimisierungserfahrungen im Strafvollzug (Victimization within the penal system), which was presented in 2012, from the Kriminologische Forschungsinstitut Niedersachsen (KFN) (criminological research institute of Lower Saxony) points to the existing problems with violence in prisons. The survey among prisoners of all ages in 33 different prisons showed that more than one quarter of them became a victim of at least one physical assault whereas nearly half of the imprisoned juveniles in this survey were victim of such an assault (cf. Bieneck; Pfeiffer 2012: 10). Besides that Kaiser and Schöch point to the international critical discussion about the lack of success of the penal system regarding its goal to resocialize prisoners. Moreover the high relapse rates were an indication of damage caused by imprisonment and stigma effects. (Kaiser; Schöch 2003: 71) [own translation] Because of this crisis the question concerning alternatives to imprisonment has become relevant again. According to Kaiser and Schöch additionally to known alternatives such as fines and suspension of sentences also new measures are being considered: [ ] above all it is the implementation of reparation, increased use of restorative justice and the victim-offendermediation and also of community work. In addition, in Germany the implementation of electronically monitored house arrest is considered as a measure of avoiding imprisonment. (ibid.: 71) [own translation] Alternatives to imprisonment would be able to make a positive contribution to the rehabilitation of offenders. For example the social living conditions wouldn t be unnecessarily burdened by community work, because social contacts would be maintained. In addition the offender would learn self organization as well as a sense of responsibility and his self-esteem would rise (cf. ibid.: 72 f.). In Germany different measures refer to the already cited manifold problematic situations, such as drug addiction of imprisoned persons. Basically the 2. Periodische Sicherheitsbericht notes: Very special importance for the life in prisons, but even more for the reintegration after release, have jobs, education and further education. In principle prisoners, who are able to work are obliged to work. Conversely, the prosecution authority should assign work that considers skills, abilities and inclinations to imprisoned persons. The accomplishment of this task could be very difficult in economically weak phases. Due to the design of this work, but also through 75

76 occupational therapy, education and further education, the goal to deliver, maintain or promote skills that are needed for employment is sought. Eligible prisoners should be given the opportunity to start vocational training, continue vocational training or to participate in other forming or continuing educational trainings. (BMI; BMJ 2006: 624 f.) [own translation] These measures of vocational education and training are considered equivalent to the obligation to work. Since these measures are usually full-time measures, they lead to the suspension of the obligation to work (cf. Laubenthal 2011: 253 f.). A good aftercare in the sense of the so called Übergangsmanagement (transition management) is relevant for imprisoned persons in general, because this affects positively the reoffending rate and therefore has a prison-avoiding effect. Thomas Müller notes in this regard: The psychiatric facilities ( ) have understood in the meantime, to establish a network of aftercare facilities, what can only be a model for the penal system. Just these measures have significantly lowered the reoffending rate of offenders which were discharged from the forensic. (Müller 2010: 76) Such offers make an important contribution to the rehabilitation of prisoners and are an integral part of the penal system: It is a vital interest of the state and the society to take care about the reintegration of ex-prisoners and to give them a realistic chance to practice a life in freedom. A failure of reintegration, especially the reintegration of sociobiographic burdened prisoners, causes new victims and material damage and leads to new costly imprisonments and as well as to a variety of subsequent problems with affiliated ones, including dependency of social welfare benefits. Legal probation of ex-prisoners means sustained damage prevention and effective protection of victims. (BMI; BMJ 2006: 630) [own translation] The following aftercare measures most of them are not only valid for ex-prisoners - taken from the 2. Periodischen Sicherheitsbericht can be counted as prison avoiding measures: Consultation already in prison for early transition preparation, employment services, housing services, debt counseling, money management, debt relief agreements in the sense of a complete solution with creditors, financial support, assistance regarding social welfare, payment in kind, addiction consultation, mediation of outpatient therapy in case of other mental disorders, work with and within the family of offenders, social training, social therapy, social therapeutic accompanied housing, victim-offender-mediation, help for prison avoiding, leisure activities. (Ibid.: 637) [own translation] Finally, at this point should also be pointed to the broad discussion about reoffending (cf. Greve; Hosser; Pfeiffer 1997: 18 ff.) Because there are only a few nationwide studies about relapse rates available in Germany, the study Legalbewährung nach strafrechtlichen Sanktionen Eine bundesweite Rückfalluntersuchung 2007 bis 2010 und 2004 bis 2010 (Legal probation after 76

77 criminal prosecution A nationwide relapse study from 2007 to 2010 and from 2004 to 2010) from Jehle et al. is of high importance. For this National Report some core results of the study are presented very briefly. According to the study offenders, which have received a custodial sentence, have a higher relapse risk then offenders, which have received milder sanctions (cf. Jehle et al. 2014: 8). The high relapse rate of former prisoners is an often used argument against imprisonment, rehabilitation measures within the prisons and against the penal system in general (cf. Wirth 2010: 79, Kotynek; Lebert; Müller 2012, or Maelicke 2012). In this respect Jehle notes: If the claim for special/personal prevention of criminal law is taken seriously, then it must be judged by the fact, whether it is successful in terms of reconviction or strands by producing relapses. Recidivism is, if you will the true test or sharper: the litmus test for a sanction system that is ruled by the aim of special/personal prevention. (Jehle 2012: 7) But according to Jehle different rates of relapse per se can t be used to evaluate the suitability of the sanctions regarding prevention. The different rates of relapse could rather be the result of different estimated risks expressed by different sanctions (cf. ibid.) What is the place of victims in the policies to design and implement alternatives to imprisonment? The victim protection organizations play an important role in Germany regarding the question in what place victims can take part in the discussion about alternatives to imprisonment. A particular example is the asscociation Weisser Ring Gemeinnütziger Verein zur Unterstützung von Kriminalitätsopfern und zur Verhütung von Straftaten e. V. (non-profit organization to support victims of crime and crime prevention). Since 1976 the association takes a stand for the interests and rights of victims of crime. For example, it accompanies and supervises victims or provides money to victims, which are in need of care or put them in contact with support services. They also make political demands. As an example may be mentioned the following two demands: The WEISSE RING fights for giving more importance to reparation and compensation for the victim during the the criminal procedure against the offender 21 [own translation] and the demand [ ] The victim should receive sufficient 21 last opened on

78 information about the criminal proceedings against the offender and the victim should be given the right and the necessary requirements in the criminal procedure that the victim can defend its legitimate interests in this proceeding. 22 [own translation] The association is also involved in the field of crime prevention. It conducts public relations work and is a regular partner of the Deutsche Präventionstag (German Congress on Crime Prevention) What is the relationship between the entity of damages suffered by victims and the implementation of alternatives to imprisonment? Regarding the before mentioned question victim-offender-mediation has to be named. In Germany victim-offender-mediation is evolving, as evidenced by projects such as Mediation and Restorative Justice in Prison Settings (MEREPS) (cf. Hartmann et al.: 205 ff.). According to sec. 46a Criminal Code victim-offender-mediation can be seen as an alternative to imprisonment. This legal norm is based on the positive experience with the victim-offendermediation in the juvenile justice system. On the one hand victim-offender-mediation should realize the interest of victims to compensate their loss and on the other hand make the offenders aware of the consequences of their crimes and arouse in them the willingness to take over their responsibility. In the area of low to mid-crimes the imposition of penalties should be reduced by this prison avoiding measure. If victim-offender-mediation is successful the court may mitigate the sentence pursuant to section 49(1) or, unless the sentence to be imposed on the offender is imprisonment of more than one year or a fine of more than three hundred and sixty daily units, may order a discharge (cf. BT-Drs. 12/6853: 21) What is the role of civil society in debates and policies about alternatives to imprisonment? In Germany there are a number of NGOs, which support the interests of offenders and / or the topic of reducing imprisonment in different ways. In this National Report may be exemplary mentioned only a part of them with some relevant positions. In the discussion about the penal system and alternatives to imprisonment the association DBH - Fachverband für Soziale Arbeit, Strafrecht und Kriminalpolitik (Association for social work, criminal law and criminal 22 ibid., last opened on last opened on

79 politics) plays an important role. According to its self-representation DBH is an professional association, which is nationally and internationally active in the fields of [ ] social work, criminal law and criminal policy. TIt includes organizations and associations with more than 10,000 members, which work nationally, regionally and locally in services for offenders, probation and victim assistance. 24 [own translation] Among other things, the association supports crime prevention, reparation, victim offender mediation and reintegration of arrested persons. The focuses of the work are for example: probation service, community service, conflict mediation, crime prevention, crime victim support and victim- offendermediation. 25 The tasks and targets also include public relations in order to [ ] awake and strengthen sympathy of the society for a social criminal justice system and its tasks 26 [own translation] A very important instrument of public relations work is maybe the magazine Bewährungshilfe - Soziales, Strafrecht, Kriminalpolitik (BewHi) (Probation social affairs, criminal law, criminal policy), which is published by the association. Furthermore the association participates in the German Congress on Crime Prevention with information stands and lectures the association is a permanent event partner. In its self-representation the association also emphasizes that it influences criminal and social policy. 27 Another NGO which advocate for offenders, is the association Bundesarbeitsgemeinschaft für Straffälligenhilfe (BAG-S) (National association for the support for offenders). The German welfare associations and the aforementioned association DBH have joined together in this Association. In accordance with the articles of the association, the target of the association is: [ ] to represent concerns regarding services for offenders at federal level and to promote social integration and rehabilitation of offenders. (BAG-S 2013: 1) [own translation] Similar to the association DBH, the BAGS would like to contribute to legislation by suggestions and opinions (ibid.: 2). [own translation] The association also conducts public relations such as meetings and cooperates with science and research (cf. ibid.: 2). The relevance of the topic avoiding imprisonment becomes apparent from the guidelines for professional work in the field of offender service from the association Arbeiterwohlfahrt (AWO, Workers' Welfare Association). These include: In particular, the value of freedom can be emphasized through the main goal of our work in the field of offender service, which is avoiding and reducing 24 last opened on Cf. last opened on last opened on last opened on

80 imprisonment. We support and respect the freedom of the clients in the selection and in acceptance of our offers of assistance. Responsible individual action can be (re-) learned, by making best use of existing skills. It will be promoted and strengthened through targeted advice and support. The aim of the Workers' Welfare Association (AWO) is to create a network of ambulatory alternatives, which replaces the sanctions of imprisonment. The rehabilitation and integration has utmost priority. Accepting social work takes into account the diversity of social behavior on the basis of different social, cultural and personal backgrounds. We encounter deviating conditions for these values with appropriate socio-political influence on all the necessary levels. 28 [own translation] In this context there are two more associations to mention, the Kommitee für Grundrechte und Demokratie (Committee for Fundamental Rights and Democracy) and the Humanistische Union (Humanist Union). Both of them are civil rights organizations. The Committee for Fundamental Rights and Democracy was founded in 1980 and since then it stands up for fundamental rights. One topic the association is dealing with is penalties, prison conditions and services for prisoners. 29 [own translation] According to self-representation [ ] the questions about the prison system, the rights of prisoners and their rehabilitation are central concerns of the committees work. Among other things, we claim for the reduction of prison sentences and the development of constructive alternatives such as victim- offender-mediation and restorative justice. 30 [own translation]to achieve its goals, the association uses, among others, the books, written and oral submissions for public relations and gets involved thereby also in policy discussions and decision-making processes. For example, the association has directed in 2011 a petition to the federal government with the aim of integrating prisoners into a pension scheme, which can also be regarded as a measure to avoid imprisonment. 31 The Humanist Union was founded in 1961 and is committed to [ ]the protection and enforcement of human rights and civil liberties ( ). 32 [own translation] According to its selfpresentation it is involved in the formation of opinion through various forms of public relations, such as conferences, book publications and position papers. They also take a stand to 28 last opened on last opened on reduziert.pdf, last opened on last opened on last opened on

81 imprisonment. In the Kernforderungen der Humanistischen Union zur Verbesserung der Situation des Strafvollzuges (core principles of the Humanist Union to improve the situation of the penal system) from the year 2010, it advocates for the avoidance of imprisonment: Alternatives to prison have to be developed. Avoiding prison needs to be the uppermost point when dealing with delinquent persons. Alternative dispute resolution models such as victimoffender-mediation should be expanded and implemented without the participation of law enforcement agencies. Moreover, it should be mandatory (and not just as a rule) to check in every stage of criminal proceedings if a victim-offender-mediation can be carried out, leading to a termination of proceedings or a reduction of sentence. Also the placement of offenders in other facilities such as asylums is preferable to imprisonment. 33 [own translation] In this listing of NGOs is finally missing the association Arbeitskreis kritischer Strafvollzug (working group - critical prison regime). In particular by public relations the association stands i.e. up for avoiding imprisonment. According to its basic program a goal of the working group is: Imprisonment is unnecessary where other strategies such as fines, therapeutic actions, or civil law suites suffice to bring about a balance of interests and a compensation of victims. Preventive detention and life imprisonment have, like the death penalty, no place in a democratic society. ( )Pregnant women and mothers with young children must be placed in special facilities if imprisonment is the very last resort. Foreigners, who commit crimes have the same rights as Germans. An probation service independent from judiciary has to take action already during detention. 34 [own translation] Additionally, there are other associations, which also offer measures to avoid imprisonment and get involved in the debate about alternatives to imprisonment. Due to the restricted space of this report it is not possible to discuss all in detail. In total it is difficult to identify the influence of the above-mentioned NGOs and other NGOs. Without a doubt, we can infer from this review that the NGOs in Germany participate in the discourse and try on various measures, for example by participating in conferences, public statements, petitions, or other network and public relations, to make a contribution to increase the acceptance as well as the expansion and the improvement of alternatives to imprisonment. 3. Cross-cutting and topical issues 33 last opened on last opened on

82 3.1. Is the argument of cost-benefit-analysis used in designing and implementing policies towards alternatives to imprisonment? The comparison of costs of imprisonment with the costs for alternative measures, partially taking into account relapse rates, plays a role in the development and implementing of imprisonment-avoiding measures. The costs originating from imprisonment are repeatedly pointed out for example by politicians, civil right organizations and scientists and alternatives like charitable work in order to avoid imprisonment for failure to pay a fine are being checked. Nevertheless, with regard to the situation in Germany it is to be said that the state of data is inadequate for the realization of cost-benefit analyses. Entorf states in the already outlined study imprisonment or avoidance of imprisonment which one pays off? [own translation] [...] that for a detailed and long-term cost-benefit-analysis in Germany there is too much information missing. For example there is no reliable long term data considering the effect of individual resocialization measures. Even the relapse rates for the federal states, which could show whether certain strategies of fighting crime are more efficient than others, are missing. In addition substantial victim studies which have been done in other countries are missing. (Entorf 2010: 21) [own translation] 3.2. Are there any debates about the position of psychiatric patients in relation to ordinary detainees? In Germany mentally ill delinquents or those who are addicts can be placed in so called 'Maßregelvollzug' [translator s remark: 'Maßregelvollzug' describes the execution of a disciplinary measure] and get therapy. The condition for such a placement is that delinquents are either irresponsible or their responsibility is diminished because of insanity (sec. 20 and 21 Criminal Code). However, this condition doesn't always apply to addicted delinquents in detoxification facilities. The German statistics regarding patients placed in 'Maßregelvollzug' is worth improving. Not for every federal state the necessary informations are publicly available. Nevertheless the available data allow the statement that the number of patients placed in 'Maßregelvollzug' has been increasing continuously since the end of the nineties, namely from patients in 1998 to patients in pdf? blob=publicationfile, last opened on

83 Also, social-therapeutical facilities have a relevant role. In accordance to sec. 9 StVollzG (German prison law) to these facilities sexual offenders become committed, who serve at least two years of imprisonment as well as those prisoners, who have a certain therapy requirement and agree to being placed in such institutes. The goal of the treatment is resocialization of the offenders. The number of patients being placed in social-therapeutical facilities increased from in 2003 to in In the years between 2007 and 2012 this number increased from to The number of social-therapeutical facilities increased from 2 in 1969 almost continuously to 66 in (cf. Niemz 2013: 8). Studies regarding the efficiency of social therapy allow the assumption that it has positive effects, for example with regard to the relapse rate (cf. Niedersächsisches Justizministerium 2011: 8 ff.; Spöhr 2009: 142 ff.; Laubenthal 2010: 362 ff.). Although the number of social-therapeutical facilities in Germany has increased and therefore there are more open places, a widespread discussion about how to deal with mentally ill convicts is going on in Germany. As mentioned in chapter 2.1. an increase in the number of convicts with various mental problems can be determined. In this context it has been criticized that the demand for therapy has not been satisfied enough. For example, the German Society of Psychiatry, Psychotherapy and Neurology (DGPPN) established through a study that [...] 88 percent of imprisoned delinquents suffer from a mental illness or a personality disorder. Another result of the study shows the high demand of therapy: 83 percent of the questioned prisoners have a psychiatric or psychotherapeutic demand for therapy, which hasn't been satisfied yet or has only been satisfied insufficiently. 36 [own translation] That is the reason why various voices demand a more frequent assessment of the accused as well as an extension of possibilities for therapy (cf. Drenkhahn 2003: 63, Janisch 2012, Böhm; Boetticher 2009: 4 ff.) Are there any debates about the position of drug addicts in relation to ordinary detainees? See chapter 2.2 and Are there any debates about the place of foreigners who are imprisoned? 36 psych-erkrankungen-inhaftierte-straftaeter.pdf, last opened on

84 In Germany there is a discussion about foreign prisoners. Different aspects are important here. It is determined that foreigners are overrepresented in German prisons. Considering their share of the population they are overrepresented by two and a half time (cf. Walter 2010: 40). With foreigners reasons for arrest are given more often than with Germans, and therefore they are arrested more often (cf. Ibidem: 43). Placement of foreign prisoners generates different challenges for law enforcement. There are for example only few [...] specific concepts for the treatment of foreign prisoners [own translation] and the heterogeneous composition of foreign prisoners [...] with various individual and independent cultural believes, lifestyle habits, different attitudes towards physical integrity, leads to conflicts and disputes between different groups of prisoners, which are sometimes pursued with violence. [own translation] (Laubenthal 2010: 194) To make matters worse there are language barriers which influence communication between prisoners and correctional staff. These barriers lead for example to foreign prisoners not exercising their rights or not being able to make use of possibilities for long-term education because of an impending deportation (cf. Ibidem: 194). In conclusion Laubenthal establishes that foreigners in prison are being disadvantaged in comparison to German prisoners (cf. Ibidem: 192). According to Laubenthal an internationalization of imprisonment can help to solve problems resulting from imprisonment of foreigners. Among other things this means [...] serving the sentences in the respective home states of convicts, who are not German [own translation] (ibidem: 195). This has to be questioned for example with regard to whether the convicted foreigners are in favor of serving their sentences in their home states, because the conditions of imprisonment might be worse than in Germany (cf. Ibidem: 199). In this context the current jurisdiction regarding custody pending deportation by the ECJs has to be mentioned. It is a specific form of imprisonment used to prepare for or secure the deportation, which the court criticizes in its current form (cf. Laubenthal 2010: 579 f.). According to a ECJ judgment of the custody pending deportation has to be organized in such a way, that [...] imprisonment of illegal immigrants with the goal of deportation has to take place in special prisons. 38 [own translation] However, in federal structured Germany not every federal state has such special prisons. That is why the federal states without those prisons have to place 37 ECJ judgement of in the case C-474/13, online access: b397.e34kaxilc3qmb40rch0saxuoa310?text=&docid=155107&pageindex=0&doclang=de&mode=req&dir=&occ= first&part=1&cid=341069m last opened on last opened on

85 the prisoners, who are supposed to be deported, in prisons of other federal states Concluding remarks: the future of alternatives to imprisonment As shown above, the question how imprisonment can be avoided is discussed widely in Germany. In the first part of this National report we have shown, that the law in Germany offers different possibilities - for example conditions and instructions - for avoiding imprisonment. Alternatives to imprisonment are legally available during the phase of pretrial detention and also during the phase of post-trial detention. The use of such measures depends for instance on the criminal offense of the offender. In the second part of this national report we have delineated the socio-demographic profile of imprisoned persons. It becomes clear that imprisoned persons have a lower level of education, a less higher education qualification and a worse income situation then not imprisoned persons. On the contrary they have more frequent health problems for example they are more often addicted to alcohol or other drugs or social problems. Within this context different arguments against imprisonment and measures for avoiding imprisonment were discussed. Some of the central arguments against imprisonment are: 1. Custody avoidance can save money imprisonment is an economic factor. 2. Overcrowded prisons lead to problems, like for instance a higher rate of aggression and violence among the prisoners - and encumber the goal to rehabilitate prisoners; therefore avoidance of imprisonment could lead generally to a better situation inside prisons. 3. Inside prison walls the different problems of offenders, such as drug addiction, couldn t be treated properly; therefore therapeutic treatment as well as social care outside the prisons should be strengthened. 4. Imprisonment could cause a destabilization of the living conditions of prisoners and therefore lead to a higher likelihood of a relapse. 5. Imprisonment causes damages and leads to a stigmatization of prisoners. This causes a high relapse rate. 6. The perspective of the victim isn t considered enough by imprisonment measures of restorative justice (like for instance victim-offender-mediation) could make a contribution to solve this problem. 39 Cf. ibid., last opened on

86 Furthermore we have explained the role of civil society in debates and policies about alternatives to imprisonment. In this regard some relevant German NGOs have been introduced. Finally some cross-cutting and topical issues were discussed. The future of alternatives to imprisonment cannot be foreseen. However, the discussion about the problems and effects of imprisonment but also the discussion about the effect of the penal system on non-offenders is important. The interests and needs of the society, the victim as well as the offender should be taken into consideration regarding the discussion about alternatives to imprisonment. Literature: Bernhardt, L. (2009): Psychisch kranke Straftäter haben keine Lobby. Online abrufbar unter: zuletzt aufgerufen am Bieneck, S., Pfeiffer. C. (2012): Viktimisierungserfahrungen im Justizvollzug (KfN Forschungsbericht Nr. 119). Online abrufbar unter: zuletzt aufgerufen am Böhm, K. M., Boetticher, A. (2009): Die unzureichende Begutachtung gefährlicher Gewalt- und Sexualstraftäter im Strafverfahren, die Mängel bei deren Behandlung im Vollstreckungsverfahren sowie die Folgen. Memorandum zur Änderung der Strafprozessordnung und des Strafgesetzbuches. Online abrufbar unter: zuletzt aufgerufen am BMI, BMJ (Hrsg.) (2006): Zweiter Periodische Sicherheitsbericht. DIE LINKE Brandenburg (2014): Programm der Partei DIE LINKE. Brandenburg zur Landtagswahl Beschluss der 2. Tagung des 4. Landesparteitages am 05. Juli 2014 in Cottbus. Online abrufbar unter: zuletzt aufgerufen am Drenkhahn, K. (2003): Endlich Therapie für alle? Die Bundesländer und ihre sozialtherapeutischen Einrichtungen. In: Neue Kriminalpolitik, 2/2003, Entorf, H. (2010): Strafvollzug oder Haftvermeidung was rechnet sich? In: Aus Politik und Zeitgeschichte, 7/2010, Greve, W., Hosser, D., Pfeiffer, C. (1997): Gefängnis und die Folgen. Identitätsentwicklung und kriminelles Handeln während und nach Verbüßung einer Jugendstrafe (KfN Forschungsbericht Nr. 64). Online abrufbar unter: zuletzt aufgerufen am

87 Heimerdinger, A. (2006): Alkoholabhängige Täter: justizielle Praxis und Strafvollzug. Argumente zur Zurückstellung der Strafvollstreckung bei Therapieteilnahme. Kriminologische Zentralstelle e. V., Wiesbaden. Janisch, W. (2012): Therapie als Opferschutz. In: Süddeutsche Zeitung, Kaiser, G.; Schöch, H. (2003): Strafvollzug. Eine Einführung in die Grundlagen. 5., neu bearbeite Auflage. UTB, Heidelberg. Kotynek, M., Lebert, S., Müller, D. (2012): Die Schlechterungsanstalt. In: Die Zeit, 34/2012. Online abrufbar unter: zuletzt aufgerufen am Laubenthal, K. (2011): Strafvollzug. Sechste, neu bearbeitete Auflage. Springer-Verlag, Berlin, Heidelberg. Maelicke, B. (2012): Probleme der Resozialisierung. Rückfallquoten sind unverändert hoch. In: Süddeutsche.de vom Online abrufbar unter: zuletzt aufgerufen am Müller, T. (2010): Behandlung Reformnotwendigkeit des Strafvollzuges. In: Preusker, H., Maelicke, B., Flügge, C. (Hrsg.): Das Gefängnis als Risiko-Unternehmen. Nomos Verlagsgesellschaft, Baden-Baden, Niedersächsisches Justizministerium (2011): Sozialtherapie im niedersächsischen Justizvollzug. Rahmenkonzept. Online abrufbar unter: zuletzt aufgerufen am Niemz, S. (2013): Sozialtherapie im Strafvollzug Ergebnisübersicht zur Stichtagserhebung zum Kriminologische Zentralstelle e. V., Wiesbaden. Spöhr, M. (2009): Sozialtherapie von Sexualstraftätern im Justizvollzug: Praxis und Evaluation. Forum Verlag Godesberg, Mönchengladbach. Online abrufbar unter: Sexualstraftaetern_im_Justizvollzug_Praxis_und_Evaluation.pdf? blob=publicationfile, zuletzt aufgerufen am Walter, J. (2010): Minoritäten im Strafvollzug.? In: Aus Politik und Zeitgeschichte, 7/2010, Wirth, W. (2007): Gewalt unter Gefangenen. Kernbefunde einer empirischen Studie im Strafvollzug des Landes Nordrhein-Westfalens. In: Bewährungshilfe, 2/2007, Wirth, W. (2010): Übergangsmanagement aus dem Strafvollzug: Fokus 87

88 Arbeitsmarktintegration?!. In: Landesgruppe Baden-Württemberg in der DVJJ (Hrsg.): Jugendliche Gewaltdelinquenz Beteiligte und Reaktionen. Heidelberg,

89 ROMANIA In Romania the alternative measures to imprisonment both in pre trial and the post trial phase are governed by Code of Criminal Procedure and Criminal Code, respectively the Law 135/2010 on the Law of Criminal Procedure and the Law 286/2009 on the Criminal Code. With the entry into force of the two Codes at February the 1 st 2014, these legislative instruments have undergone significant changes also in terms of measures on alternatives to detention in pre and post trial. Below we will give you the alternatives to imprisonment in Romania in phases of pre and post trial, together with the improvements that have been made with their entry into force. Another important thing to be noted at the beginning of this assessment is that in Romania the institution in charge of compliance and implementation of non-custodial measures ordered by the courts is the National Probation Directorate through the Local Probation Services in all the country. Before proceeding to enumerate what are the alternatives to prison in the pre and post trial we would like to mention some of the probation services duties and responsabilities as stipulated in the Law 252/2013 on the organization and functioning of the probation system in Romania. Therefore, these are the following: - The probation system as a public service, contribute to the implementation of justice (act of justice). - The probation system activity is conducted in the interest of the community, to social rehabilitation of offenders, reducing the risk of committing new crimes and increasing community safety. - Promoting community sanctions and measures is aimed to reducing the social costs of enforcement of criminal sanctions and measures by reducing the prison population, capitalization of the socioeconomic potential of the offenders and maintaining community safety. Basically, probation services do these: a) implement community sanctions and measures, non-custodial sanctions and measures, as they 89

90 will be listed below b) case management - which means the coordination process of all the evaluation activities of the supervised person, planning and development assistance and control interventions, monitoring the execution of the measures and obligations imposed by the judiciary, including the potential of the individual and national integrating contributions from the community institutions; c) referral of the case which means a case transmission activity by institutions managing the case management to a community institution empowered to make a specialized intervention in accordance with probation activities planning. 1. General legal framework 1.1.What alternatives to imprisonment are legally available in the phase of pre-trial detention? The new Romanian Penal Code is diversifying the alternative measures to detention that can be appealed by the judicial bodies in the period prior to the sentence. A.The preventive actions provided by the new Romanian Penal Code which has come into force on February the 1 st 2014 are: a) detention ; b) judicial review; c) judicial review on bail; d) house arrest; e) remand. Consonant with the Jurisprudence of the European Court for Human Rights, the explicit regulation of the proportionality principle of any preventive measures according to the seriousness of the charges inflicted to a person is being carried out, together with the necessity principle of such measures in order to accomplish the legit purpose aimed by its disposal. The preventive actions can be taken if there are evidence or strong clues that a person has gone beyond the law, and if they are necessary in the purpose of ensuring a good consecution of the penal action, in the purpose of hindering the circumspection of the suspect or the person on trial from prosecution or justice or to prevent another crime. As a general rule, it has been regulated the necessity of informing in written form the person subject to any preventive measures on their rights provided by the law. Regarding the remand, the law provides, as a principle, the exceptional and auxiliary character 90

91 of this action in comparison to other preventive actions which do not confine. Thus, the remand can be taken into consideration only if the other preventive measures are not sufficient to accomplish the legit aimed purpose. 1.The judicial review measure While being under judicial review the defendant must abide by the following rules: a) to appear in front of the prosecution body, or, depending on the case, in front of the rights and liberty judge, preliminary court judge or court, whenever he is called; b) to inform the judicial body which acted against him upon the cause of his changing the address; c) to appear in front of the police body entrusted with his by the judicial body that acted against the defendant at call or according to the probation schedule. The judicial body that acted against the defendant may impose on the defendant during the judicial review to abide by one or more of the following : a) not to pass beyond a certain territorial limit imposed by the judicial body, unless with their prior agreement; b) not to go in certain places established by the judicial body as prohibited, or to go only in the places indicated by the judicial body; c) to constantly wear an electronic surveillance system; d) not to break into the domicile of the victim. e) not to get close to victim or any of their family members, or other parties involved in the crime, or any witnesses or experts and not to get in contact with any of these persons, directly or indirectly; f) not to get in contact with certain persons designated by the judicial body and not to communicate with them in any way; g) not to practice his profession or the activity during which he committed the crime; h) to periodically communicate information related to the means he is earning his living; i) to be subjected to control measures, care or medical treatment, especially if they are related to rehab; j) not to take part in sports or cultural events, or any other public gatherings; k) not to drive any vehicle or certain vehicles pre-established by the judicial body; l) not to be in the possession or not to use or carry any type of weapons; m) not to make out checks. 91

92 The police body designated by the judicial body that has imposed the measures must ensure the defendant is abiding by these obligations during the judicial review. 2. The judicial review on bail - can be imposed to the defendant against whom the prosecutor has asked, during the judicial review, for remand or house arrest. At the defendant s request, under the conditions of paying an established bail, only if certain conditions are met, the judicial review will be carried out while the defendant is on bail. The commitment of the bail is being done on the name of the defendant through consignment of the amount of money established by the court, or by providing to the judicial body with a guarantee, immovable or not. The value of the bail is of at least lei and it is established in rapport with the importance of the charge brought to the defendant, his circumstances and legal obligations. During this action, the defendant can abide by the obligations imposed by the judicial review. 3. The house arrest action - consist of the obligation imposed to the defendant, on a determined period, not to leave his permanent domicile, without the consent of the judicial body that acted against him. During the house arrest period the right and liberty judge, the preliminary court judge or the law court imposes the following restrictions to the defendant: a) to appear in front of the prosecution body, or in front of the rights and liberty judge, the preliminary court judge or the law court, whenever he is called; b) not to communicate with the victim or any of their family members, or other parties involved in the crime, or any witnesses or experts and not to get in contact with any persons besides the ones with whom he is staying or are in his care. At the same time, the rights and liberty judge, the preliminary court judge or the law court may impose that during the house arrest the defendant wear an electronic surveillance system. Denial of the preventive actions: The decisions which impose all of these restrictive measures (prosecutor s edict, adjourned meetings) can be denied within 48 hours from pronouncement or from communication, depending on the case. The denial will be solved in maximum 5 days from when the request is received by a court higher than the court that imposed the measures on the defendant. The resolution of the denial request will be done in the presence of the defendant, except in the case if he is on leave of absence, gone missing or missing due to health conditions, and cannot 92

93 be brought in front of the judge. It is mandatory that the defendant benefit from a lawyer s assistance, at his preference or appointed from the office. 4. Remand detention on remand may be taken by the judge of rights and freedoms during prosecution, by the judge of preliminary chamber in the preliminary procedure room, or by the court before which the case is pending, during the trial, only whether the evidence in the reasonable suspicion that defendant had committed a crime and are one of the following: - the defendant fled or went into hiding in order to evade prosecution or trial, or made provision whatsoever for such acts; - the defendant is trying to influence another participant in the crime, a witness or an expert or destroy, alter, hide or to escape as evidence or to determine another person to such behavior; - the defendant puts pressure on the injured person, or trying to achieve a fraudulent deal with it; - there is reasonable suspicion that after the initiation of criminal proceedings against him, the defendant intentionally committed a new crime or prepares committing a new crime. The measure of the defendant's arrest may be taken also if the evidence in the reasonable suspicion that he had committed a deliberate crime against life, a crime which has caused injury or death to a person, a crime against national security under the Criminal Code and other special law, a crime of drug trafficking, arms trafficking, human trafficking, terrorism, money laundering, counterfeiting or other values, blackmail, rape, deprivation of liberty, tax evasion, outrage, judicial outrage, a corruption offense, an offense committed by means of electronic communication or other offense for which the law prescribes imprisonment of five years or more and, based on assessing the seriousness of the crime, the manner and circumstances of its commission, the entourage and the environment from which he/she originates, on criminal background and other circumstances relating to his person, it is found that deprivation of liberty is necessary to remove a state of danger to public order. Proposal of remand of the defendant in the prosecution: (1)The Prosecutor, if satisfied that the conditions laid down by law, carries out a reasoned proposal taking arrest preventive measure against the defendant, indicating the basis of law. (2)The proposal referred to in para. (1), together with the case file are presented to the rights and liberty judge from the court that would return power to hear the case in the first instance or the appropriate court in its degree of jurisdiction over the place of detention, the place where it was found committing the crime or located flooring offense of which the prosecutor who drafted the 93

94 proposal. B. In comparison to the previous variant, the new Romanian Law Code has regulated a new alternative action to prosecution: the waiver from prosecution. Thus, in the case of crimes where the law provides fines or imprisonment up to 5 years as penalties, the prosecutor may withdraw the prosecution when, with respect to the defendant, his behavior prior to committing the crime, the specificity of his crime, the way, means, aim and context of committing it, the efforts made by the defendant to alleviate or eliminate the negative consequences of his acts, meaning that the prosecutor has found no public interest in pursuing in this endeavor. The abnegation of the prosecution may take place only after the law action has been set in motion and before informing the preliminary court. The prosecutor may request the defendant to abide by one or more of the following: a) to eliminate the negative consequences of his criminal acts or to mend the damages, or to agree with the civil body on a way to fix the damages; b) to publicy apologize to the injured person; c) to come through his outstanding alimony obligations; d) to do community work, with the consent of the defendant, for a period between 30 and 60 days, except in the case when the health condition hinders him from carrying this out; e) to take counseling hours. The defendant must proof to the prosecutor that he has abide by the obligations he established. Which institution is competent to make decisions and on which grounds? The preventive measures mentioned in section 1.1., points b) and c), respectively the judicial review and judicial review on bail are preventive measures which do not confine, and can be taken: -during prosecution, by the prosecutor or the rights and liberty judge. -in the preliminary court procedure, by the preliminary court judge; -during trial, by the court. The house arrest measure, a new alternative measure, can be ruled in all of the 3 stages described above, but only by the rights and liberty judge, preliminary court judge or by the court. 94

95 As it is mentioned above the remand is taken by the judge of rights and freedoms, by the judge of preliminary chamber in the preliminary procedure room or by the court before which the case is pending, during the trial. What references are made to international or supranational norms and standards? - European Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5); - European Convention on the International Validity of Criminal Judgments (ETS no. 70); - Recommendation R (92) 16 on the European rules on community sanctions and measures; - Recommendation. R (97) 12 on staff concerned with the implementation of sanctions and measures; - Recommendation. R (99) 22 concerning prison overcrowding and prison population inflation; - Recommendation Rec (2006) 13 on research into preventive custody, ongoing conditions and safeguards against abuse 1.2. What alternatives to imprisonment are legally available in the phase of post-trail detention? The enactment of the New Law Code and of the New Criminal Procedure Code introduces in the Romanian criminal system substantial changes with respect to the sanctions and the nonconfinement actions applicable during the trial. The main role in exerting these alternative measures falls in the responsibilities of the probation body, under the authority of the judge assigned to serve the case. A. A new measure in the Romanian criminal law is the procrastination of the punishment. This measure is imposed by the court if the following conditions are met: the established punishment consist of a fine or imprisonment for up to 2 years, the person in charge has never been convicted before, or if they have, they have already been rehabilitated or the rehabilitation date has just been reached, the person charged has agreed to do community work, had a good behavior prior to committing the crime, has made the efforts to alleviate or eliminate the negative consequences of his acts. The probation term is of maximum 2 years, under the coordination of the probation body. 95

96 During this time, the person charged must abide by the following: a) appear in front of the probation body, at the dates established by the probation service; b) allow regular visits from the probation officer; c) announce beforehand the change of his domicile and any leave longer than 5 days, as well as the date of his return; d) communicate any job changes; e) communicate information and provide the necessary documents that give visibility and control over his means of living. The court may impose on the person whose punishment has been procrastinated to abide by one or more of the following: a) to attend educational or competence courses; b) to do community work, with the consent of the defendant, for a period between 30 and 60 days, except in the case when the health condition hinders him from carrying this out; the number of community word days is established through the punishment enforcement law; c) to attend one or more programs for social integration organized by the probation body or in collaboration with community institutions; d) to allow medical control and treatment measures; e) not to get in contact with the victim, or its family members, with the persons together with which he committed the crime or with any other persons designated by the court and also not to get close them; f) not to set foot in the places designated by the court and not to take part in cultural or sports events; g) not to drive certain vehicles designated by the court; h) not to hold in possession, use or carry any weapons; i) not to leave Romania, without the court s consent; n) not to practice his profession or the activity which he used to commit the crime. In the circumstances in which the defendant does not abide by these measures and obligations, the court rules out the measure applied and requests prison punishment. B. The reprieve of the serving of the punishment under probation sanction. The conditions when this is applied by the court are similar to the ones from the procrastination of the punishment, with the amendment that the established punishment, including in the case of 96

97 multiple charges, is a fine or imprisonment for up to 3 years. In this case the court pronounces the punishment with imprisonment, but suspends its serving. The probation term is in this case between 2 and 4 years, without being shorter than the actual duration of the initial imprisonment punishment applied. Like in the case of procrastination the court establishes a set of probation actions and may request the defendant to abide by one or more obligations. The content of these obligations is more or less similar to the ones in the procrastination case, with a new amendment that community work is mandatory in the case of the punishment with suspension. In this respect, prior to giving this sanction, the court must ask for the agreement of the defendant with respect to the community work he will have to carry out. Regarding this unpaid community service, it is established that one work day is the equivalent of 2 hours of effective work but also the fact that in the case of the persons on probation that are carrying out remunerated work or attending educational or competence courses, the duration of the work must not go beyond 2 hours per day in the same day. Upon request from the person on probation, the duration of the work carried out may be extended with maximum 2 hours. On the non-working days or in the case of the persons that do not attend educational or competence courses, the duration of the work cannot exceed 8 hours. Also, as a measure of protection of the person on probation it is established that the work cannot be carried out during the night, on Sundays, or during the bank holidays set by the law, unless the person under probation requests so and it is possible. If the person under probation does not abide by these measures, the court will revoke its decision and apply the initial imprisonment punishment with serving. C. The institution of the Probation has suffered changes in the New Penal Code because it requests that the person under probation is monitored by the probation service so that he abides by the obligations imposed by the court. Probation in the case of imprisonment is requested and allowed if: -the convicted felony has served at least two thirds of the total duration of his punishment, in the case in which he was convicted to 10 years in jail, or at least three quarters of the total duration of the punishment, but no more than 20 years, in the case in which he was convicted to more than 10 years in jail. -the convicted felony is serving time in a semi-open or open regimen; -the convicted felony has fully accomplished his civil obligations established through his conviction, except in the case when he can prove he had not alternative to do so; -the court is convinced that the convicted has amended and can reintegrate in society. 97

98 For a period equal to one third of the duration of the probation time, but no longer than 2 years, the convicted must abide by the following probation measures, under the surveillance of the probation body: a) to appear in front of the probation body at the date beforehand established; b) to allow visits from the probation officer; c) to announce, beforehand, an change of his domicile and any leave than exceeds 5 days; d) to communicate an eventual job change; f) to communicate information and provide the necessary documents that give visibility and control over his means of living. The court may impose on the convicted person one or more of the following: a) to attend educational or competence courses; b) to attend one or more programs for social integration organized by the probation body or in collaboration with community institutions; c) not to leave Romania, without the court s consent; d) not to set foot in the places designated by the court and not to take part in cultural or sports events; e) not to get in contact with the victim, or its family members, with the persons together with which he committed the crime or with any other persons designated by the court and also not to get close them; f) not to drive certain vehicles designated by the court; g) not to hold in possession, use or carry any weapons; The obligations in a) and b) points must have to be served starting the moment when he is out on parole for a period equal to one third of the probation time, but no longer than 2 years, and the obligation in c) and g) points are to be served on the entire period of probation. If the person under probation does not abide by these measures, the court will revoke its decision and apply the initial imprisonment punishment with serving. Which institution is competent to make decisions and on which grounds? As results from the above text, the alternatives to imprisonment in the phase of post-trial detention are taken by the court. What references are made to international or supranational norms and standards? 98

99 - European Convention on the Supervision of Sentenced or Conditionally Released Persons (ETS No. 51); - Recommendation R (92) 16 on the European rules on community sanctions and measures; - Recommendation. R (97) 12 on staff concerned with the implementation of sanctions and measures; - Recommendation. R (99) 22 concerning prison overcrowding and prison population inflation; - Recommendation Rec (2000) 22 on improving the implementation of the European rules on community sanctions and measures; - Recommendation Rec (2003) 22 on conditional release (conditional release from jail conditioned by a irreproachable conduct); Utilized Sources: - Law no. 286/2009 regarding the Penal Code, published in the Official Gazette no. 510 from July 24th 2009, with further adjustments; - Law no. 135/2010 regarding the Penal Procedure Code, published in the Romanian Official Gazette, Part I, no. 486 from July 15 th 2010, with further adjustments; brought about by the new law and regulation; - Law no. 252/2013 regarding the design and function of the probation system published in the Romanian Official Gazette, Part I, no. 513 from August 14 th 2013, with further adjustments; - Law no. 253/2013 regarding the serving of the punishment, educational actions and other actions with no imprisonment displayed by the judicial bodies during the trial, published in the Romanian Official Gazette, Part I, no. 513 from August 14 th 2013; - The fundamental notes of the four laws mentioned: 3/tabid/2604/Default/aspx 2. Political and social context of alternatives to imprisonment 2.1. What is the socio-demographic profile of persons imprisoned (distinguish between pretrial and post-trial detention)? 99

100 Taking into consideration the existence of the alternative measures to imprisonment in Romania before the new Penal Code has entered into force, as well as their implementation under the monitoring of the probation body since 2001, here is some data extracted from the statistical report of the Probation Directorate of the Ministry of Justice. According to the data from year 2013 regarding the convicted persons (a total of persons) for which the court announced the suspension of the serving the sentence, under the monitoring of the probation body, most of them were: -aged above 18, at the date when they committed the crime (91,53%), -with domicile in the urban area (60.67%), -male (90,24%), -convicted for robbery or theft (25,90%), -set on probation for a trial period of 5 years (28,23 %). No data has been collected after the enactment of the new regulations, that is after Feb 1 st 2014 ; these will be collected at the end of According to the information received from the National Administration of Penitentiaries in June 2014 of the total number of prisoners in Romania: are people remanded or do not have yet a final conviction, of which: 146 women, the rest are men 1119 offenders under 30 years old 2321 offenders have Romanian citizenship 799 offenders did not graduate 8 th grade are offenders, finally convicted, such as: 1442 women, the rest are men prisoners aged under 30 years old prisoners are Romanian citizenship prisoners din not graduate 8 th grade 2.2.What are the main arguments (political, social, philosophical, economic, other ) used to design and implement alternatives to imprisonment (distinguish between pre-trial detention of suspects and post-trial detention of sentenced persons)? The declared purposes, within the normative acts, of the probation system in Romania are the 100

101 reduction of the social costs of sanctions serving and penal measures through the decrease of the population in the prison facilities, the capitalization of the social and economic potential of the criminals and the maintenance of the community s security. The principles of the activity of the probation system reflects the values on which a modern probation system is based and comprises the provisions of important normative acts and European and international recommendations, such as: R (92)16 with respect to the European regulations regarding the community sanctions and measures, R (97)12 with respect to the improving of the implementation of the European Regulations regarding the community sanctions and measures, R (2008) 11 with respect to the European rules for under aged criminals subject to penal sanctions and actions and R (2010)1 with respect to the European rules in the probation area. With these new landmarks, the new law for probation introduces the notion of community sanctions and measures, according to the European recommendations. Another important aspect that was taken into consideration in designing the new regulations for probation is the one of resetting the intervention within shorter periods of time, because the reality of the last decade has shown that the exaggerated size/duration of the punishment periods is not the efficient solution for fighting crime. Thus, the probation periods have been reduced from a time perspective, an aspect directly correlated with the intensity of the intervention and with the diversification of the actions/measures and obligations that can be established during these periods. The principle of the adjusted intervention is more emphasized in the new probation law, together with the aim of turning the convicted person into a responsible citizen and making it cooperate in its own changing process (the request of agreement from the person charged that it wishes to contribute to its own amending process). The principle of the outsourced services, of the active and sustained implication of the community in administrating the sanctions and community measures has also been developed in this new law code, the probation service receiving the role of coordinating the activities and interventions that take place within the community in the purpose of rehabilitating the person under charge. The concept of case management is being promoted here, which comes to correct any possible segmentation of the surveillance process that might result from the outsourcing of the services in the probation domain, with an emphasis on the complementarity of the parties involved. Which programmes exist to deal with the following aspects for suspects/sentenced persons? On the entire period of the surveillance the persons that are under probation are being assisted, 101

102 activity which consists in specialized interventions adapted to each person s needs, and to the risks of committing new crimes. The assistance of the persons under probation can be made through educational courses or competence courses, social reintegration programs, consultancy, vocational courses, and other activities, established either as activities within the schedule of the educational measure or as obligations decided by the court or by the counselor of the case manager, with the agreement of the person involved, in the purpose of his rehabilitation. In order to deploy specialized interventions the probation services in Romania have developed a series of specialized programs: -One to One (individual program) -Stop, think and change! (group program) -Development of social abilities in minors (group program) - Development of social abilities in adults (group program) -Anger management Also, the probation personnel in Romania is well prepared in applying a set of techniques such as: the motivational interview, the diagnosis and data collect instrument, SEED (abilities for developing and effective implication of the convicted person). At present, the National Probation Directorate is developing also a series of programs of the type: Drink and Drive, My Choice (designed for the drug consumers) and a civic education program for minors. For the persons deprived of liberty in Timisoara Penitenciary there are programs in these areas: - Education in prisons are employed officers educators and educators agents; they inform inmates about educational opportunities, they support them to continue their schooling to attend training courses and participate in educational activities ( for instance sporting events, religious activities, general knowledge contests, library activities) and educational programs (Literacy program, Health education program, Education program for Family Life, Civic Education Program, General Education Program Universe of Knowledge, Skills development program for an independent life and activities undertaken in partnership with external collaborators, etc) - Work - Inmates who wish to work, make a written request, which is reviewed by the selection committee to lucrative activities and then, if selected they are assigned to work in points the outer or inner place of detention. For work inside the prison, the offenders do not receive money, but they are deducted from the sentence. For work in other institutions or companies inmates are paid and are deducted days of the punishment. - Psychological wellbeing - in prisons in Romania are employed psychologists; psychologists 102

103 conduct the assessment, inmates counseling in crisis intervention. They also perform specific psychological programs: the program for former drug users, the program for people with aggressive behavior, the program for elderly, and the program designed to reduce recidivism in sexual abuse, Program risk of suicide prevention, the program for person with mental disorders, Program for people with a history of alcohol dependence, General psychological assistance program Self-knowledge and personal development, Specific psychological intervention program to reduce anger, etc - Social work- in most prisons in Romania are employed social workers; they perform the initial, ongoing and the final social assessment, they provide social counseling, social mediation and conduct social assistance programs: Parenting skills development program, Social skills development program, Program maintenance / development of media relations support, Domestic Violence Prevention Program, Decision-making development skills program in situations of criminal risk, the program Reducing the risk of relapse after prison, etc. 2.3.What is the place of victims in the policies to design and implement alternatives to imprisonment? The rights of the victims are being regulated in correlation with the alternatives for imprisonment. In the penal code. Thus the penal code is regulating the right of the victims to be protected against any direct contact with the criminal, in the case in which his punishment has been procrastinated, or the convicted is out on parole or an educational measure without imprisonment has been applied to him art.85 paragraph (2) letter e), art.101, paragraph (2),letter e), art.121, paragraph (1), letter d) from the Penal Code. The penal procedure code comprises a series of regulations regarding the victims rights in correlation with some alternatives to remand, especially the judicial review and the house arrest. During the judicial review, the defendant may be obliged not to come near the victim or its family members ( ), not to directly or indirectly communicate with them, through any means art.215, paragraph (1), letter d) from the penal procedure code. The house arrest may impose also to the defendant not to communicate with the victim or its family members, ( ) art.22 paragraph (2) letter b) from the penal procedure code. In the Penal procedure code there are other rights of the victims being stated and regulated, without them being directly correlated to the alternatives to jail or remand (rights regarding the hearing, lesion restitution, the public character of the trial session, the prohibition of making public in a written or audio-visual ways of texts, drawings, pictures or images capable of unraveling the identity of the victim). 103

104 2.3.1 What is the relationship between the entity of damages suffered by victims and the implementation of alternatives to imprisonment? According to the regulations of the penal code, among the conditions that have to be met so that an alternative measures to detention be allowed is that of a minor severity of the crime, taking into consideration the nature and consequences of the damages, the means used to commit the crime, the way and context in which it was done as well as the aimed purpose. Another condition takes into consideration the behavior of the criminal prior to committing the crime, his efforts of decreasing the negative consequences of his deeds and his possibilities to amend. With respect to the mechanisms or amending the prejudice in the case of a crime that was punished with an alternative to detention measure, the current law does not establish direct correlations and to solve this matter the prosecutor opts for the use of traditional institutions present also in the old law (the amending of the prejudice trough civil action, sequestration, insurance measures etc.). A possible correlation between the imposing of a sanction which is an alternative to imprisonment and the amending of the prejudice inflicted upon the victim can be that when the procrastination of the punishment, which is the suspending of the punishment under probation, the probation body is responsible for the defendant s abiding by the civil obligations established by court, with a deadline of maximum 3 months before the probation time expires. Although the abnegation of the prosecution cannot be considered an alternative to detention, it is worth mentioning the correlations the Penal Code establishes between this solution and the amending of the leisure inflicted upon the victim. Thus, according to art. 318 from the procedure penal code, the prosecutor may decide, with the consent of the defendant, for the defendant to abide by one or more of the following: the eliminate the consequences of his penal act or amend the damage or agree with the victim on a way of amending his deeds, that is to apologize publicly to the victim. The current penal code provides also another means by amending the deeds that is community service without remuneration. This is however an indirect mode of amending the leisure inflicted upon the victim and more a means for the defendant to make a mince for the community he is part of for the disturb he has caused with his crime. At the same time, community service is not a sanction per se but an obligation that follows certain trial solutions (the abnegation of the prosecution), certain sanctions (the procrastination of the punishment, the suspending of the probation punishment) or replaces the fine. 2.4.What is the role of civil society in debates and policies about alternatives to imprisonment? 104

105 The normative acts texts, including the ones regarding the serving of punishments without imprisonment or the ones related to the activity of the probation services, are subject to public debate according to art. 7 from Law no. 52/2003 regarding the visibility of the decisions within the public administration. Also, experimented non-governmental organizations from the measures and sanctions area have been involved in the working activities of the group that enables design of the normative acts or public policies documents. For example, in developing the national strategy for integrating in society the persons in detention, representatives of r the civil society were part of the working group that designed the project. Utilized sources: - Statistical report of the Probation Directorate for year Information provided by Timisoara penitentiary representatives taken from the National Database of the National Administration of Penitentiaries; - Law no.211/2004 regarding the actions to ensure security of the victims - Law no. 217/2003 for preventing and fighting against family violence - Law no. 678/2001 regarding the prevention and fight against human trafficking 3. Cross-cutting and topical issues 3.1.Is the argument of cost-benefit-analysis used in designing and implementing policies towards alternatives to imtrisonment? We did not find studies comparing the cost of custodial and non-custodial measures or in terms of relapse rates. The most recent and extensive study was conducted in order to implement the new criminal codes. Impact studies on new Essential Codes (Civil Code, Civil Procedure Code, Criminal Code, Finale Procedure Code ). Since the study is very large will make you known only the source: Are there any debates about the position of psychiatric patients in relation to ordinary detainees? In penitentiaries, the psychiatric patients share the cell with the common convicts and in case of emergency they are taken to the penitentiary medical wards, or to the penitentiary hospitals or 105

106 even civil hospitals. The psychiatric patients benefit from: free of charge medical assistance, including transfers to Penitentiary Hospitals if needed, counseling, and a program designated for persons with mental afflictions. According to the procedures the mentally-ill persons are included in the case management. That means thay can benefit from a specialized and supervised intervention, namely the patients are enrolled in case management only if they need psychological, medical and social intervention Are there any debates about the position of drug addicts in relation to ordinary detainees? Regarding the drug addicts, the following measures are taken: free of charge medical assistance if needed, counseling, program for former drugs addicts, and program for persons that have been addicted to drugs or alcohol abuse, as well as other activities in collaboration with the Center for Prevention, Evaluation and Anti-drugs Counseling. The drugs addicts share the cell with the common prisoners Are there any debates about the place of foreigners who are imprisoned? In Romania the percentage of the foreigners who are imprisoned is quite low, which makes this topic not a very debated none. In the penitentiaries in Romania it is tried as much as possible to have the foreign convicts share the cell with one of their own people or with somebody that knows their language. Sources: - Information provided by penitenciaty staff in Timisoara, namely Commissioner Mrs. Cristina Busuioc. 4. Concluding remarks: the future of alternatives to imprisonment The implementations of the new regulations of the penal code represents a long term process that has begun four years ago and will continue for the next three, according to the measures provided by the Memorandum: The Preparation of coming into force of the new regulations. The evaluation of the current situation. Action plan. This is related to law actions regarding the human resources and infrastructure established as a result of the feasibility and impact studies done to implement the new law. This action plan covers the following levels: budget (budget allocation, within the limits imposed by the new regulation), human resources (increasing the number of judges and staff, according to estimates relating to a phased implementation the New Code of Civil 106

107 Procedure), infrastructure (providing offices for judges and support staff employed new, additional board rooms, spaces for archives), IT equipment (for new staff) and training (training of personnel measures of system judiciary in the context of the new codes organized to allow sufficient time between the time of establishing the date of entry into force and enforcement effective for learning the new rules). Sources: Newspaper article: Mediafax.ro,

108 BULGARIA Factfile Bulgaria is a country in Southeast Europe. Bulgaria borders five other countries: Romania to the north (mostly along the Danube), Serbia and the Republic of Macedonia to the west, and Greece and Turkey to the south. The Black Sea defines the extent of the country to the east. With a territory of 110,994 square kilometers (42,855 sq mi), Bulgaria ranks as the 15th-largest country in Europe. According to the 2011 census, the population of the country is 7,365,570. The emergence of an unified Bulgarian ethnicity and state dates back to the 7th century AD. All Bulgarian political entities that subsequently emerged preserved the traditions (in ethnic name, language and alphabet) of the First Bulgarian Empire ( ), which at times covered most of the Balkans and became a cultural hub for the Slavs in the Middle Ages. With the decline of the Second Bulgarian Empire ( ), Bulgarian territories came under Ottoman rule for nearly five centuries. The Russo-Turkish War of led to the establishment of a Third Bulgarian state as a principality in 1878, which gained its full sovereignty in In 1945, after World War II, it became a communist state and was a part of the Eastern Bloc until the political changes in Eastern Europe in 1989/1990, when the Communist Party allowed multi-party elections. Bulgarian politics undertook a transition to democracy and free-market capitalism was introduced. The Bulgarian government functions as a parliamentary democracy within a unitary constitutional republic. Sofia, a global city, is the country's capital and the 12th largest settlement in the European Union. Bulgaria is a member of the European Union (since 2007), NATO (since 2004), the United Nations, the Council of Europe, and the World Trade Organization and is a founding member state of the OSCE and the Black Sea Economic Cooperation Organization. Bulgaria has a high Human Development Index of 0.777, ranking 58th in the world in Introduction 108

109 The Bulgarian legislative system has been greatly influenced by continental law. Court decisions are based on the Constitution, codes and different general and special laws. The main criminal law is the Penal Code. The first Penal Code has been adopted soon after the country gained its independence from the Ottoman Empire February 21 st 1896 (Punishment Law). Assuming that some elements of alternative sanctions in Bulgaria can be traced back to shortly after the Liberation in 1878, it is important to track the development of particular alternative sanctions. The deprivation of liberty penalty was introduced in the system of penalties by the first Penal Law (21 st of February 1896). Working on the regulation of all different kinds of penalties, the lawmakers used the extensive experience of England, France, Germany, Russia and other countries and adapted the progressive European ideas to the traditions of the Bulgarian nation. In the organization of the system of sanctions in the Penal Code, the dualistic system of sanction consequences was adopted. The institute of conditional release was established in 1896 and the Conditional Sentencing Law was adopted in 1903 and entered into force in the beginning of Thus Bulgaria became one of the first European countries to look for alternatives to the deprivation of liberty and seek different forms of intervention on the prisoners while they are in and when they are out of prison. The current system of penalties was adopted with the Penal Code of 1968 when the country was under Soviet influence ( ). Despite the strong ideologization of the government system, some positive developments of the different alternative sanctions should be recognized. Most important was the utilization of the conditional sentence where the court may rule that a community organization, group of colleagues or a particular person should provide supervision to the sentenced offender within the trial period. However, it should be mentioned that all community organizations are controlled by the government during this period. The conditional release was still in use during that period. Special Supervising Commissions attached to the local authorities were obliged to support prisoners and ex-prisoners. The start of democratic changes in Bulgaria since the early 1990s and above all the country s accession, first, to the Council of Europe in 1992 and, later on, to the European Union in 2007, have laid the foundations for the development of legislation towards adoption of modern European approaches in the execution of penalties. The period saw the beginning 109

110 of a process of deideologization, demilitarization and humanization of penitentiary treatment, as well as of reforming correctional education work and the training of penitentiary staff. At the same time series of reforms began in the field of criminal policy aimed at synchronization with the European models, and important step towards this aim was the implementation of probation as a specific community measure to impact offenders. Probation became reality in the Bulgarian legislation through the Law for Amendments of the Penal Code passed on the 27 th of September The general regulation of the nature of probation, the mechanisms for its execution and the structural implementation of the probation system in Bulgaria have been made with the adoption of further amendments of the Penal Code and the Law for Execution of Penalties on the 23 rd of November November 2003 should be mentioned as the time of the initial establishment of probation service in Bulgaria the Sector Community work with offenders (probation) was established within the Department Correctional Activities in Detention Places in General Directorate Execution of penalties at the Ministry of Justice. In September 2004 the training of the first probation officers began provided by experts of the National Probation Service of England and Wales. However the establishment of the probation offices in the country began in the middle of 2005 and completed in Report on the non-custodial sanctions and measures in Bulgaria 1. General legal framework 1.1. What alternatives to imprisonment are legally available in the phase of pre-trial detention? According to Bulgarian law the measures, alternative to pre-trial detention are the rest of the remand measures, laid down in art. 58 of the Penal Procedure Code (PPC) - signed promise for appearance, granting bail and home arrest. 110

111 The house arrest is the most repressive of all those measures. The accused is banned from leaving their home without a permission of a relevant competent authority. It should be emphasized that the house arrest is an enforcement measure, which is less intense and has an incompatibly smaller influence upon the person under detention compared to the detention in custody, although both measures are imposed and controlled by the court. The two measures differ also by their consequences. After the amendment of Art. 59, paragraph 1 of the Penal Code /SG, 27of / one day of detention in custody or two days of house arrest are equal to one day of imprisonment or 3/for the detention/, accordingly - 2 days /for the house arrest/ probation of the imposed with the sentence penalty. Before this legislative amendment was made the weight of the two measures was equal. In the case of the home arrest the actual control over the enforcement of the measure is harder to be executed. To some extent the limits, imposed by the pre-trial detention can be achieved also by using other enforcement measures, provided by the Penal Procedure Code. The prohibition imposed to the accused party from directly approaching the victim under Art. 67 of the PPC, as well as the prohibition imposed to the accused party from leaving the boundaries of the Republic of Bulgaria under Art. 68 of the PPC can be applied independently or in combination with other supervision measures. We cannot evaluate the effectiveness of the supervision measures, because specific studies haven t been conducted and we don t have information on to what extent the measures, alternative to the detention in custody, can serve the criminal procedure in its pre-trial and trial phase. The answer may be lying in the statistics on the suspension and reopening of the procedure, postponed preparatory inquiries and court hearings, the extension of time periods for investigation, the number of conducted trials in absentia, where the presence of the accused or convicted person in regard to whom a suspension measure, different from the detention in custody, has been taken, is not possible to be provided. 111

112 In the absence of prerequisites for continuing a pre-trial detention in custody or house arrest which has already started, the person may be released: 1/ by a prosecutor s decree in the pre-trial proceedings, when the danger that the accused would hide themselves or commit another crime drops off Art. 63, paragraph 6 PPC. 2/ by an order of the Court in exercising ex officio control on the detention in the pre-trial phase of the proceedings Art. 65 PPC. 3/ by an order of the Court in the trial phase of the proceedings when the question for the amendment of the surveillance measure can be put at any time- Art.270 PPC. In all the cases the judgment comprises of an appraisal of the superior decision making body on whether the grounds for detention had dropped off. If the maximum time period for detention in the pre-trial phase has not been exceeded there are no other compulsory prerequisites for releasing the detainee. There is no obligation for the court to check periodically and ex officio whether there are prerequisites for continuing the detention in the pre-trial phase. The Court performs a check only if approached by a request for amendment of the taken surveillance measure detention in custody or by an appeal against the refusal to amend this measure. It should be pointed out that the practice shows that those appeals are abused. Repeatedly, especially in complicated pre-trial proceedings with several accused persons, the detention in custody is challenged separately for each of them and in this way for considerate time periods the accused persons are retained as well as their lawyers, the pre-trial proceeding and the investigation is actually blocked. We could judge on the importance of the question from the data /statistical accounts of the Prosecutor s Office/ about the suspended pre-trial proceedings based on Art. 244, paragraph 1, p. 1, in connection with Art. 25, p. 2 of the PPC because of the absence of the perpetrator of the offence and the impossibility to reveal the objective truth in their absence. For 2010, there are 9620 pre-trial proceedings suspended for that reason, and for the first half of pretrial proceedings. We cannot indicate what supervision measures have been applied in relation to those accused persons, but it s obvious that they have been different from detention in custody and undoubtedly they haven t been effective enough to guarantee the presence of the accused persons for the completion of the relevant procedural actions and for completing the investigation. 112

113 1.2. What alternatives to imprisonment are legally available in the phase of post-trial detention? In the Bulgarian legal system the most important measures, alternative to effective custodial sentence, which lead to detention in custody of the convicted person, are: - the application of stay of enforcement and stay of execution with a probation period under Art. 66 PPC (suspended or conditional sentence with or without supervision). This legal regime has traditionally a large application, when the proprietor has not been sentenced to imprisonment towards the moment of convicting the offence. This stay of enforcement burdens the statute of the person, but doesn t lead directly to their isolation from the society or to making any other commitments and it comes down to a warning to abstain themselves from committing other criminal acts in the probation period. In case where such acts have been committed the offender would serve separately the postponed punishment as well. Because of that special feature the effectiveness of the sanction is disputable. After 2005 that effectiveness may have been increased by the additional application of a measure of probation surveillance in the probation period, by which an actual influence on the convicted person is exercised. - the enforcement of probation as a combination of measures for influence and control. Probation can be imposed as a single penalty (Article 55, Paragraph 1, Sub-aragraph 2, case b from the Penal Code). It is designed as the appropriate sentence for offenders who have committed low impact crimes. The Bulgarian legislation allows in some cases deprivation of liberty to be substituted with probation. Besides, probation can be imposed as a complementary penalty in cases of conditional sentencing (Article 67, Paragraph 3 from the Penal Code). In such cases probation does not lead to suspension of the conditional sentence but adds to it by measures for supervision during the 113

114 trial period. This option can be applied only if the trial period is longer than six months and less than three years. Probation can also be imposed in cases of conditional release from prison. The duration of this measure should not be longer than the trial period imposed by the court Article 70, Paragraph 1 and 6 from the Penal Code. In that form, the probation is always an alternative to the imprisonment and includes a minimum of two measures, which shall be executed by a probation officer. The experience so far, indicates that the punishment fulfills its purpose effectively. It is largely applied for 2009, probation have been imposed to more than half of the convicted persons in the Republic of Bulgaria. As an alternative to the imprisonment, the probation in its two forms /as an independent sanction and as a form of surveillance in the probation period of the stay of enforcement or a pre-term release/ should be encouraged by the European Union. In the transposition of the Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, every Member State has the heavy task of offering a set of probation measures, which should cover the large scope under Art. 4 of the Framework Decision. The Republic of Bulgaria has enough opportunities through individualizing and combining the 6 probation measures, laid down in our law to satisfy the requirements of the Framework Decision, without an amendment to the material law. Apart from probation there are two other non-custodial sanctions, which are not standalone, but are used in conjunction with either suspended prison sentence or probation community service and corrective labor without imprisonment. Corrective labor without imprisonment. This is a measure for reparation of harm caused by the crime. It is imposed by appraisal of the court and is legally defined by Article 43 of the Penal Code and Article 141f of the LEP. This measure is actually gathering of deductions of 10 to 25 percent of the salary in state s benefit and excluding the period of the sentence from the social security record (providing the 114

115 right to receive a pension) of the sentenced person. This measure is applicable only to persons that have permanent jobs. If the sentenced becomes unemployed the measure is substituted with community service. The task of the probation service here is to organize the execution of this measure. Community service is a measure for reparation of the harm caused by the offence. It is imposed by appraisal of the court and is legally defined by Article 42b, Paragraph 5 of the Penal Code and Article 141g of LEP. This measure is one of the most frequently applied so far and by its nature it is similar to the probation practices throughout Europe. It consists of work in benefit of the society for a period between 100 and 320 hours per year, for no more than 3 consecutive years. The workplaces where this can happen are selected by the correspondent Probation Council; they should not be privately owned, state or municipal ownership of more than 50 % of the capital is required. The sentenced person does not get paid for this work and it is not included in the social security record. In regard to restorative justice, from community service can benefit victims of the crime that have expressed agreement for this. The task of the probation service with regard to this measure is to organize and manage the execution of community service. While executing this measure, the probation service should be supported by the local authorities or other responsible persons. The type of the probation measures imposed is determined by the court, the legislation does not provide that the will of the offender is taken into consideration. Some elements of agreement can be found in the process of termination of the criminal procedure with agreement (regulated by the Criminal Procedure Code) where the attorney of the offender and the prosecutor can agree only on the type of penalty. 2. Political and social context of alternatives to imprisonment 2.1. What is the socio-demographic profile of persons imprisoned (distinguish between pretrial and post-trial detention)? 115

116 As of October 2013 there are prisoners in Bulgaria, placed in total of 13 prisons 11 male prisons, 1 female and 1 juvenile detention institution. Of these prisoners approximately 2100 are pre-trial detainees in arrests around the country, or 21 % of the whole number of people detained. Women account for a very small number currently in the female prison in Sliven there are only about 280 female prisoners serving sentences or awaiting trial. The number of juveniles is even smaller currently there are only 80 boys in the juvenile prison institution in Boychinovtsi. It should be noted though, that apart from these juveniles, most of them sentenced for very serious or numerous offences, there is a separate alternative system, which currently provides placement as per court decision to about 200 boys and girls in 4 correctional schools. The number of foreigners in detention in Bulgaria is also smaller compared to most EU member states only 2 %, or less than 200. Most of them are serving their sentences in a special ward in Sofia prison What are the main arguments (political, social, philosophical, economic, other) used to design and implement alternatives to imprisonment It should be noted that the development of modern alternatives to imprisonment was not so much the result of internal debates or evidence based initiatives, but rather because of the need to synchronize the existing legislation with the acquis communautaire in the process of EU accession. If we track the history of the establishment of probation system in Bulgaria, we should mention that first came the amendments of the legislation, which were then followed by the process of elaboration of strategy for development of the service. Within the twinning project Establishment of Probation Service in Bulgaria (BG/2004/IB/JH/2007) implemented in the period with the support of English experts, the first Strategic Plan and Priorities of Bulgarian Probation Service has been developed. So it is safe to say that the ideas and philosophy behind the application of non-custodial measures, and especially probation, came from the outside, and not as a result of internal processes. The action plan mentioned above contains the following formulation of the mission of the 116

117 Probation service in Bulgaria, which is a good example of the vision of this institution about its role in society: «The probation service aims to secure the effective execution of probation sentences through its mission aimed at partnership work, at the rehabilitation of the offenders, at reducing the recidivism, at higher security for our society and reparation for the victims and society and at providing accessible and effective services to offenders and the society». The Bulgarian probation service declares four goals of its activity: Providing effective supervision of offenders sentenced to probation or conditionally released from prison; Work with partner organizations to reduce recidivism among persons under probation supervision, aimed at improvement of their rehabilitation and protection of society; Reduction in the number of ex-offenders that are imprisoned again; Reparation to crime victims. Probation services pursuits the following values: - A transparent, open and respectful attitude towards people; - Partnership aimed at reduction of recidivism and protection of society; - Accounting for the needs of the victims and the reparation of damage done to them; - Providing support to the probation officers in order to achieve stronger effectiveness of their work; - Sustaining the idea that most offenders have the potential for a positive change; - Tolerance to differences and support to anti-discrimination actions; - Ensuring effectiveness and efficiency Which programmes exist to deal with the different aspects for suspects/sentenced persons? Harmonization of Bulgarian legislation with the acquis communautaire made gradual progress, but the reforms in the penitentiary system were practically unfinished in the process of Bulgaria s accession to the European Union. Key part of these reforms was the 117

118 revision and re-organization of the behaviour correction and development interventions. This process has been much aided by the National Offender Management Service of England and Wales, which, courtesy of 4 twinning projects with its Bulgarian counterparts, played an important role in the introduction of structured interventions aimed at reducing the risk of re-offending or programs. The program approach was introduced in 2007 and by different programs were available to prisons and probation services. The experience of the prison system in Bulgaria was used as part of the programs applied in prisons were adapted to suit the needs of the probation service i.e. the two compulsory programs: the Program for adaptation of new inmates and Program Living free. Both have been accredited and all new prisoners and the ones that expect to be released soon pass them. Other programs piloted within different projects are also implemented. For example: Conflict solving skills, Handling anger skills, Solving problems of life through change in mentality, Work club, program Training on assertive behavior skills, Communication skills, programs for working with offenders that have committed sexual crimes, drug addicts etc. The legal framework for corrective and supportive interventions is defined only with regards to probation. The Law on Execution of Penalties describes a specific measure, which can be included in a probation sentence by discretion of the court: Participating in vocational qualification courses and programs for corrective influence. This is a measure for support and assistance to the sentenced person that can imposed by appraisal of the court. It is legally defined by Article 42b, Paragraph 4 of the Penal Code and Articles 141c, 141d and 141e of the LEP. The content of this measure comprises an obligation on the sentenced person to attend for professional qualification courses and/ or programs for corrective influence with the aim of labor integration and development of social skills and law-abiding behavior of the sentenced person. This measure, as said above, includes participation in professional qualification courses and/ or programs for corrective influence. Programs for corrective influence are two types: 118

119 - personal development programs include literacy courses, developing job search skills, positive communication with the social services and the police. - corrective programs are aimed at changing the personal values and behavior of the sentenced person or to help him/ her to overcome an addiction. The task of the probation service with regard to this measure is to organize and conduct qualification courses and different programs. In the process of execution of this measure, the probation service can cooperate with state institutions, NGOs and volunteers. An important observation is the fact that the participation of the offender in corrective interventions can be obligatory and included in the probation sentence as a specific measure. At the same time when the court imposes a prison sentence, there is no possibility to include such obligation for the offender, as the imprisonment penalty is not broken down into separate measures in the Penal Code. This fact is important for the understanding and implementation of mechanisms for motivation of offenders to participate in programs in prison and in the community What is the place of victims in the policies to design and implement alternatives to imprisonment? Although one of the main aims of the first Strategic Plan for the development of probation is the reparation to victims, the probation system in Bulgaria at this stage is still not organized to work with victims. Since 1999 the possibility of terminating criminal procedure by signing an agreement is being applied. Statistical data shows that during the last two years approximately cases or more than ¼ of the criminal procedures have ended with an agreement. This court procedure (which contains some mediation elements) allows the interests of the victim to be observed to a higher extent when damage of property has been done, agreement is allowed only if the damages are repaired (Article 381, Paragraph 3 from the Criminal Procedure Code). However in practice probation service does not work with the victims after an agreement has been reached, the case 119

120 has been closed and the defendant has been sentenced to probation. It should be mentioned that in Bulgaria there is a Mediation Law that defines mediation as an alternative method for solving legal and non-legal disputes. Subject of mediation can be civil, commerce, family and administrative disputes, disputes related to consumer rights and other disputes between natural persons and/ or legal entities. At the Ministry of Justice there is a register of mediators and mediation organizations. Bulgarian lawmakers, however, have not linked the mediation process and the work of the probation services, as it is in the Czech Republic for example What is the role of civil society in debates and policies about alternatives to imprisonment? The development of modern alternative sanctions in Bulgaria (probation in particular) was aided by the intensive development of the non-governmental sector in Bulgaria since 1990 (more than 5000 non-profits were established during the initial period). At first the initiative for penal system reforms has been undertaken by the Open Society Foundation through the special program of the Foundation the Constitutional and Legal Policy Institute COLPI. In the period the organization financed projects aimed mostly at enhancement of the prison reform and also at the implementation of community sanctions and measures. Within such project Crime Prevention Fund - IGA established in Pazardjik in 1999 the first Centre for Social Support to Ex-offenders that laid the foundations of a 6-year pilot probation model in the same city that was actively supported afterwards by the British embassy through the Know How Fund program. Concrete probation measures have been piloted within this project for the first time in country based on possibilities existing in the legislation (the execution of conditional sentences was delegated to NGOs). In the British Council in Bulgaria and IGA, together with British experts developed the first program for training of probation officers. Based on this experience, in the period the British Council implemented other two projects: training of probation trainers in the prison system and the 120

121 project Development of a strategy for the Bulgarian National Probation Service and training of probation officers that was funded by the Global Opportunities Fund at the Foreign and Commonwealth Office and implemented in partnership with the Ministry of Justice. Within the second project, the first probation officers were trained. From 2002 on, initiatives of NGOs in this field became more intense: series of projects aimed at the introduction of probation in Bulgaria were implemented; legislative initiatives were undertaken; awareness raising campaigns were carried out; experimental probation centers were piloted in Stara Zagora and Ruse through Open Society funded projects; four pilot projects for youth probation in Blagoevgrad, Bourgas, Gabrovo and Vidin, financed by the Norwegian government in cooperation with the United Nations Development Program. Some remarkable international events were organized i.e. the International conference Exchange of Eexperience and Good Practices for Development of Probation Services organized by the British Council and IGA. When it comes to direct work with offenders and ex-offenders, the role of the NGOs is rather small. There are only a couple of organizations engaging with this target group, with IGA being the leader. The organization manages one of the three Centers for Social Rehabilitation and Integration of Offenders in Bulgaria, and is the only one to offer specific structured interventions for its clients. 3. Cross-cutting and topical issues 3.1. Is the argument of cost-benefit-analysis used in designing and implementing policies towards alternatives to imprisonment? Full cost-benefit analysis has not been conducted yet. Two main indicators have been mentioned in reports during the last years. The first is the cost of a person sentenced to probation compared to the cost of someone in prison, which in Bulgaria shows that imprisonment is about 7 times more expensive than community sanctions. The other indicator mentioned was the number of hours of community service delivered by probation clients as part of their sentence. Last year the total number of hours was more than , which amounts to around 1 million EUR return to the communities this is equal to 121

122 12-13 % of the budget of the probation service for example Are there any debates about the position of psychiatric patients in relation to ordinary detainees? Psychiatric patients are being treated based on their diagnosis and condition. Offenders with mild mental conditions (mild retardation, learning disabilities) are considered part of the general group of offenders, with specific differences in terms of involvement in programs, placement in prison etc. Patients with serious mental illnesses are treated either in general psychiatric clinics, if they are not dangerous, or in a specialized prison based psychiatric ward, if they can harm themselves or others. Both in prisons and in probation there is a need of training for the staff and introduction of specialized interventions for mentally disabled or ill clients. The area is subject to a current call for proposals for projects aiming to achieve these objectives Are there any debates about the place of foreigners who are imprisoned? There is no debate on the issue. Foreign prisoners serving longer terms were held in a separate ward in the prison in Sofia to provide them with easier access to consular services. With the coming into force of the Framework Decisions for transfer of prison and probation sentences between EU member states, there is now opportunity to return foreign prisoners to serve the rest of their sentence in their native country. 122

123 LATVIA 1. General legal framework 1.1. Pre-trial detention and alternative measures The constitution of the Republic of Latvia foresees that every person has the right to liberty and security of person; no one may be deprived of or have their liberty restricted, otherwise than in accordance with law 40. The State protects the honour and dignity of every human and torture or other cruel or degrading treatment of human beings is prohibited. No one can be subjected to inhuman or degrading punishment 41. In accordance with the Criminal Procedure Law of the Republic of Latvia (hereinafter referred to as CPL) pre-trial detention, arrest 42, is one of the procedural compulsory measures or a security measure that can be applied only to a suspect or accused 43. In Latvia, all compulsory measures listed in CPL can be generally divided in two groups: compulsory measures not related to deprivation of liberty and compulsory measures related to deprivation of liberty 44. It must be noted that arrest, house arrest, detention and placement in a medical institution for the performance of an expert-examination are the only compulsory measures related to deprivation of liberty in all other cases of applying compulsory measures, the person is not isolated from society. Grounds for application of a procedural compulsory measure are a person s resistance to reaching the aim of criminal proceedings or to the performance of a separate procedural action, or non-execution or improper execution of his or her procedural duties. A security measure can be applied as a procedural security measure to a suspect or an accused if there are grounds to believe that the relevant person will continue criminal activities, or hinder pre-trial criminal proceedings or court or avoid such proceedings and court. In making a judgment, a court may apply a security measure to an accused if there are grounds to believe that he or she may avoid 40 The Constitution of the Republic of Latvia, Article 94, (accessed on ). 41 Ibid, Article 95, (accessed on ). 42 Translator s note: official translation of Criminal Procedure Law refers to pre-trial detention as arrest, therefore this term will be used within this research. 43 Criminal Procedure Law, Article 242, (accessed on ). 44 Please see Attachment 1 of this report. 123

124 the execution of the judgment. In cases when a court has imposed a punishment of deprivation of liberty for serious or especially serious crimes, a judgment of conviction may be the grounds for selection of security measure arrest 45. A procedural compulsory measure (namely, arrest, placement in a medical institution for the performance of an expert-examination and conveyance by force) is applied by a person directing the proceedings (police or prosecutor) or an investigating judge with a motivated written decision but security measures are applied by investigating judge 46.The person directing the proceedings should choose a procedural compulsory measure that infringes upon the basic rights of a person as little as possible, and is proportionate. In selecting a security measure, a person directing the proceedings takes into account the nature and harmfulness of a criminal offence, the character of the suspect or accused, his or her family situation, health, and other conditions 47. Arrest is a security measure, which imposes the most limitations to person s rights and freedom. Therefore it is used only in exceptional cases if the investigatory judge is confident that other security measures cannot be applied to the suspect or accused the investigatory judge has to justify the decision to apply arrest. If, during the term of the application of a procedural security measure, the grounds for the application of such measure disappear or change, the provisions for the application of such measure, or the behaviour of the person, change, or if other circumstances are ascertained that determine the selection of the compulsory measure, a person directing the proceedings can take a decision on modification or revocation of such procedural security measure 48. The following security measures are foreseen in CPL 49 : notification of the change of the place of residence; reporting to the police authority at a specific time; prohibition from approaching a specific person or location; prohibition from specific employment; prohibition from departing from the State; residence in a specific place; personal guarantee; bail; placement under police supervision; house arrest and arrest. Taking into account the abovementioned, it is possible to conclude that CPL provides judges and persons directing the proceedings with a wide range of different security measures in order to apply the most appropriate one to a specific suspect or accused, considering all the circumstance of the case. 45 Ibid, Article 241 (accessed ). 46 Ibid, Article 245 (accessed ). 47 Ibid, Article 244 (accessed ). 48 Ibid, Article 249 (accessed ). 49 Ibid, Article 243 (accessed ). 124

125 In accordance with the statistics of Judicial Information System 50, in 2013 there were 871 decisions to apply arrest as a security measure (in 2012 there were 1114 such decisions, but in decisions to apply arrest). At the same time, other procedural compulsory measures were applied in 2401 cases (in 2012 there were 2609 such decisions, in decisions to apply other procedural compulsory measures). These statistics give grounds to conclude that during the last three years there is a decreasing tendency in the application of arrest but it must be noted, however, that application of compulsory measures that are not related with isolation from society might be used more often. The number of persons in Latvian prisons who are arrested at pre-trial stage has also been decreasing 51, namely if there were 2662 pre-trial arrested in 2004, there were only 1526 in The total number of prisoners (including both the arrested and convicted persons) is also declining if the number of prisoners in 2004 was 7646, in 2013 this number has decreased to 5139 prisoners. Research 52 in the field emphasizes that procedural compulsory measures foreseen in CPL, including security measures that are not related to person s isolation from society, can all be viewed as alternatives to detention (alternatives to arrest) in a wider sense. However, only house arrest, bail and placement of a minor in a social correctional educational institution can be named as alternatives to detention (alternatives to arrest) in a narrower sense. House arrest and placement of a minor in a social correctional educational institution are related to deprivation of liberty (or more likely limitation of liberty) to certain amount, yet less so if compared to arrest. Bail can be used in cases where there are legal grounds to impose arrest but the judge considers that it is possible to reach the goals of criminal proceedings with less limiting approaches Post trial detention and alternative measures Within the Latvian criminal justice system, deprivation of liberty is the most serious sanction 50 Publicly available data from Judicial Information System, (accessed ). 51 Annual report of 2013, Latvian Prison Administration, (accessed ). 52 Pre-trial detention in Latvian criminal proceedings (research paper in latvian), A.Judins, I.Kronberga, 2011, (accessed ). 53 Pre-trial detention in Latvian criminal proceedings (research paper in Latvian), A.Judins, I.Kronberga, 2011, page 74, (accessed ). 125

126 from all those foreseen in Criminal Law 54 (hereinafter referred to as CL). CL defines deprivation of liberty as compulsory imprisonment of a person which can be determined for a term of not less than 15 days and not exceeding fifteen years, but for especially serious crimes for a term not exceeding twenty years. In cases specifically provided for in CL, deprivation of liberty may be determined for life (life sentence) 55. Similar to the division of procedural compulsory measures in CPL, the sentences foreseen in CL can be divided in sentences related to deprivation of liberty and sentences not related to deprivation of liberty. In the Latvian system of criminal sanctions deprivation of liberty is not considered to be the main sanction for which one can search for alternatives. Deprivation of liberty is applied as the most serious criminal sanction for serious and especially serious crimes. This is why there is no such concept as alternative sanctions in the Latvian criminal justice system, but there are sanctions without person s isolation from the society as well as several ways to apply for release prior to the completion of a punishment of deprivation of liberty in prison. By using this approach, imprisonment is replaced by probationary supervision and participation in probation programmes. All punishments are divided in two groups where the first one is basic punishment fine, community service and deprivation of liberty, while the second group includes all of the additional punishments, namely, confiscation of property, deportation from the Republic of Latvia, community service, fine, limitation of rights, police supervision and probationary supervision. Additional sentences can be applied together with one of the basic punishments. Of the types of punishments listed above, only deprivation of liberty can be viewed as related to person s isolation from society. When assessing these types of punishments in a wider sense, all of the sanctions without deprivation of liberty foreseen in CL can be considered as alternatives to imprisonment. However, from the point of view of the criminal justice system, those are other, less severe punishments and their application is in no way related to cases when the court applies deprivation of liberty. Abovementioned observations lead to setting limitations for this research and therefore further analysis will be addressing cases when deprivation of liberty is replaced with supervision within society, namely: when a person is sentenced with a suspended sentence or when a person is 54 The Criminal Law, Article 38, (accessed ). 55 Ibid. 126

127 conditionally released from prison prior to completion of sentence by replacing deprivation of liberty with probationary supervision within society. Suspended sentence 56 is one of the ways in which deprivation of liberty can be executed without isolating a person from society. If the court decides to sentence a person to deprivation of liberty for a term exceeding three months but not exceeding five years, and later the court (taking into account the nature of the committed offence and the harm caused, the personality of the offender and other circumstances of the matter) becomes convinced that the offender, will not commit violations in the future despite not serving the sentence, it may suspend the sentence of the offender. In such a case, the court sentences the person with deprivation of liberty and decides that the execution of sentence is suspended if, within the term of probation adjudicated, the convicted person does not commit a new criminal offence, does not violate public order, and fulfills the obligations imposed by the court and foreseen within the law regulating execution of punishment. In imposing suspended sentence, the court shall prescribe a term of probation of not less than six months and not exceeding five years. The term of probation starts when the judgment of the court enters into effect. In imposing suspended sentence, circumstances which the court has found substantial enough to suspend the sentence, as well as reasons why relevant obligations have been imposed for the convicted person, shall be set out in the judgment. The following obligations may be imposed on the person: to allay the harm caused to the victim, within a term specified by the court, not to change his or her place of residence without the consent of the State Probation Service, to participate in probation programmes in accordance with the instructions from State Probation Service, not to visit specific locations, to be present at place of residence at the time specified et al. If the convicted person, upon whom a suspended sentence has been imposed, does not fulfill the obligations imposed by the court or commits a new criminal offence during the term of probation, the court can stop supervision of the person within society and send the person to prison for execution of initially imposed deprivation of liberty. Thus, suspended sentence allows for the execution of deprivation of liberty within society and without imprisonment. At the same time, provisions of Sentence Execution Code of Latvia 57 foresee the procedure which allows for persons sentenced with deprivation of liberty in prison to be released from serving the sentence after a specific period of time and placed under the probationary supervision for the remaining term of the sentence. Decision to release a person conditionally 56 The Criminal Law, Article 55, (accessed ). 57 The Sentence Execution Code, Article 111, (accessed ). 127

128 before the end of the term is made by a court. If conditional release before the end of term can be applied to a convicted person, the institution executing the sentence shall, according to the relevant decision of the administrative committee, submit an application regarding the conditional release of the convicted person before the end of term to the city (district) court in the territory in which the institution is located. The submission and the documents appended thereto shall contain information characterizing the behaviour of the convicted person, involvement in resocialisation measures and the results of resocialisation, attitude towards work and studies during the entire term of serving the sentence, as well as a written assessment of the convicted person prepared by the State Probation Service. The court can decide to release the person conditionally before the end of a basic punishment s term if there are grounds to believe that after the release person will be able to integrate into the society without committing new offence. If the court orders the person to be conditionally released and to be placed under probationary supervision, a person has a duty to, within ten working days, attend and register at the territorial office of the State Probation Service specified by the court. State Probation Service draws up a probation supervision plan for the conditionally released person and involves the person in probation programmes as needed. If the person who is conditionally released before the end of the term without a valid reason does not fulfill the obligations imposed by the court or within laws and regulations governing the execution of sentences or if this person commits a new criminal offence, the court can impose return to the prison to serve the remaining part of the sentence there 58. When developing the provisions regulating the system of imposing and execution of sentences, the Republic of Latvia takes into consideration requirements and principles provided for in International and European Union laws, including the guidelines from European Commission 59 and the Framework decisions of the European Council The Criminal Law, Article 61, (accessed ). 59 For example: Green paper on the application on EU Criminal Justice legislation in the field of detention, (accessed ). 60 For cooperation within the field of criminal justice with other European countries, Latvia uses the documents listed here: (accessed ). 128

129 2. Political and social context of alternatives to imprisonment 2.1. Socio-demographic profile of imprisoned persons (pre- and post trial detention). The Latvian prison system is made up of 12 prisons 61 that are subordinated to the Latvian Prison Administration. The Latvian Prison Administration in turn is subordinated to the Ministry of Justice of the Republic of Latvia. Prisons in Latvia are divided in the following types: investigation prisons, open prisons, partly-closed prisons, closed prisons and there is also one juvenile correctional institution. As of January 1, 2014, the total number of inmates was 5139, of which 3613 persons were convicted, but 1526 persons were in pre-trial arrest. The total number of minor inmates was minors were in pre-trial arrest but 24 were convicted. The maximum limit of persons that can be placed in Latvian prisons is From the total number of inmates as of December 31, 2013 there were 347 women (102 in pre-trial arrest and 245 convicted) and 65 persons imposed with a life sentence (12 in pre-trial arrest and 53 - convicted). When compared to 2012, in 2013 the number of inmates decreased by 978 persons 62. Out of all inmates 63 : 29,7% were in pre-trial arrest but for 70,3% of inmates sentence execution was carried out 64 ; 1,3% inmates were from abroad but the rest were permanent residents or citizens of Latvia. 93,2% were men and 6,8% - women; 47,5% of all inmates were imprisoned for the first time, 20,6% - for the second time, 12% - for the third time but 19,9% of all inmates were imprisoned for the fourth or more times. 38,1% were sentenced with a term from 5-10 years, 20,1% - for 3-5 years, 18,9% were sentenced for 1-3 years, 16,4% of inmates for years, for 0,1% the term exceeded 20 years, 1,5% were sentenced to life imprisonment but 4,9% - from 1 month to 1 year. 61 Information from the webpage of Latvian Prison Administration and its Annual reports, (accessed ). 62 Annual report of 2013, Latvian Prison Administration, (accessed ). 63 Annual report of 2013, Latvian Prison Administration, (accessed ). 64 Please see Chart 2 in attachment. 129

130 33,4% of all inmates were years of age, 22,4% years of age, 18,7% of inmates years of age, 11,7% years of age, 8,2% years of age, 3% years of age, 2% were older than 60 years of age but 0,5% were below 18 years of age. 4,4% of all inmates were people with disabilities (invalidity, incapacity, mobility impairments et.al.) In 2013, 77,4% of all prisoners were sentenced for serious or exceptionally serious crimes and they were serving their sentence in closed prisons prisoners were considered to be exceptionally dangerous and were placed under special surveillance, including persons under suspicion of a possible escape 174, persons with a tendency to attack prison administration 137, persons with a tendency for suicide 261, as well as 720 drug addicts. There were 23 licensed and accredited general education programs, 23 professional education programs, 36 programs of interest education implemented in prisons during In addition to that, inmates were also able to study for higher education through distance learning via post services inmates were engaged in educational programs, which adds up to 29% of the total number of inmates in However, as of December 31, 2013, there were 1653 inmates engaged in educational programs 32% of the total number of inmates inmates were employed in 2013: 570 convicted persons were involved in the facility management of a prison and 609 inmates were employed at work places created by merchants in prisons, including 600 convicted persons and 9 persons in pre-trial arrest. The level of inmates employment was 23% of all inmates as of December 31, % in the facility management of a prison and 12% - at work places created by merchants in prisons. As for the spiritual care of the inmates: in accordance with national laws and regulations, chaplains in prisons ensured individuals rights to exercise freedom of religion as stated in the Constitution of the Republic of Latvia 66, the Law on Religious Organizations 67 and international human rights treaties relating to religion. To ensure each inmate s right to exercise freedom of religion, chaplains in prisons organized spiritual care measures in the following directions: worship services, concerts of sacred music, classes for research of religious literature, demonstration and discussions of films with religious content, spiritual care programs, 65 Annual report of 2013, Prison Administration of Latvia, (accessed ). 66 The Constitution of the Republic of Latvia, (accessed ). 67 Law on Religious Organizations, (accessed ). 130

131 analytical discussions on various religion-related topics as well as individual discussions. As of January 1, , inmates of the following nationalities were placed in Latvian prisons: 2093 Latvians, 1878 Russians, 187 Roma, 121 Belarusians, 93 Ukrainians, 83 Lithuanians, 76 Poles, 14 Azerbaijanis, 8 Moldovans, 7 Jews, 7 Estonians, 5 Tatars, 5 Germans, 3 Georgians, 3 Uzbeks, 3 Greeks, 2 Romanians, 2 Lezgians, 2 Komi people, and one inmate from each of the following nationalities Udmurt, Chechen, Liv, Bulgarian, Swedish, Kirghiz, Montenegrin, Finn, Chuvash What are the main arguments (political, social, philosophical, and economic) used to design and implement alternatives to imprisonment? In Latvia, similar to other countries in Europe and beyond, the development of alternative solutions for imprisonment in most cases derives from four reasons: a) Firstly, a state s historical development and the consequences of this development; b) Secondly, society s current understanding of security and society s need for security including the change of values as a result of society s development; c) Thirdly, research papers prepared by specialists, covering various topics in the field of public security and addressing the ways to achieve society s need for security; d) Fourthly, European Union laws as well as international laws and regulations that include the best practices and recommendations from other countries with the goal of improving security. If compared to many other European countries, democracy in Latvia is relatively new 69 and Latvia s criminal justice policy, including penal policy, was formed after regaining independence in the mid-1990s. Therefore, when analyzing the development of criminal justice policy in Latvia, one has to consider the heritage that remained after seceding from the Soviet Union. This includes legal provisions that were created for the needs of the totalitarian regime, a 68 Information provided by Latvian Prison Administration as of The way to Restorative Justice, Part 1, The Historical background, Page 3, (accessed ). 131

132 highly repressive penal system and a colony-type 70 prison system. For a considerable period of time, implementation of the Criminal Law and Sentence Execution Code provisions foresaw the wide application of deprivation of liberty 71 and debates on alternatives for imprisonment were largely non-existent 72. This led to an overload in Latvian prisons: closed prisons were overcrowded by 102,5%, but juvenile correctional institutions were overcrowded by 117,9% 73. Implementation of resocialisation measures was practically impossible and this in turn led to penitentiary recidivism remaining at high level: 53,2% of all inmates returned to prison after serving their sentence. Taking into account the abovementioned considerations as well as a need for legislation that would correspond to the society s values and needs for security, including an effective penal system, new legislation was created. Laws and regulations included alternatives to imprisonment (sanctions without isolation from society) that could be applied at the pre-trial as well as after-trial stages 74 : Criminal Law 75 was adopted on and it entered into effect on A new sentence was included in the Criminal Law, which did not require a person s isolation from society community service. At the same time, the legal framework for suspended sentence and conditional release prior to the completion of punishment was improved; State Probation Service law 76 was adopted on and it entered into effect on Establishment of the State Probation Service contributed to substantial improvements to the sentence execution system as well as created a platform for broader execution of those sentences that are not related to isolation from society. Establishment of this institution led to more effective supervision of persons convicted with suspended sentences, the process of development and licensing of probation programs, effectively 70 Author s note: colonies were prisons where the main sentence execution approach was to correct inmates with hard work and political education. In colonies inmates were held in big dormitory-type rooms with up to 150 persons in one such room. 71 Author s note: for instance, in 2003, the total number of inmates was 8231 out of which 4962 were convicted but 3269 in pre-trial arrest, (accessed ). 72 Author s note: more information on current issues regarding deprivation of liberty is available here: Thesis for Workshop The principle of normality - a way to safer society -integration and treatment of inmates, what works and what not?" (accessed ). 73 Data is based on Annual report of 2003, Latvian Prison Administration, authority of Ministry of Justice of the Republic of Latvia, (accessed ). 74 Author s note: these sanctions are also currently valid and a more detailed description is provided within the first section if this research report. 75 Criminal Law (1998), (accessed ). 76 State Probation Service Law (2003), (accessed ). 132

133 executed community service, and the introduction and implementation of Restorative Justice approaches via offender-victim mediation; Criminal Procedure Law 77 was adopted on and it entered into effect on The new wording of CPL included procedural compulsory measures (including security measures) that were new to the Latvian criminal justice system and that were not related to isolating a person from society at the pre-trial stage of criminal proceedings; Sentence Execution Code of the Republic of Latvia (adopted on ) has been significantly amended during the last few years. As a result of these amendments, resocialisation measures are implemented in prisons, including social behaviour correction activities, educational measures and employment 78 ; Law on Arrest Execution Procedure was adopted on and it entered into effect on As a result this law 79, a legal framework for the application of a procedural compulsory measure (security measure) arrest, during the pre-trial process was created. This law establishes that the main measures for social rehabilitation of arrested persons are socially useful activities acquiring general, professional and interest education, educational activities and employment. In addition to abovementioned, there are various resocialisation programs 80 created and implemented in prisons these programs cover the areas of education, employment, health care and social behaviour correction, as well as the spiritual care of inmates. In order for resocialisation measures to correspond with the needs of inmates, there were 2767 psychological diagnostics carried out in 2013 within these diagnostics, social, emotional and intellectual aspects of inmates were addressed as well as risks and needs assessment. Most of the psychological diagnostics were concentrated specifically on assessment of risks and needs 77 The Criminal Procedure Law (2005), (accessed ). 78 Author s note: In Article of Sentence Execution Code a new definition of resocialization was included as of 2011 and within the context of this definition, a new Section was added to the Code Resocialisation of Persons Sentenced with Deprivation of Liberty, (accessed ). 79 Law on Arrest Execution Procedure (2006) Article 23, (accessed ) Regulations of Cabinet of Ministers No. 191 on Procedure of Implementation of convicted persons resocialisation entered into force on These regulations are directed at equal exercising of convicted persons rights in prisons and they determine the model of resocialisation for persons sentenced with deprivation of liberty as well as highlight the need for regular re-evaluation of the model while the process of resocialisation is carried out, (accessed ). 133

134 of the inmates 81. Successful resocialisation of inmates plays a crucial role in the process of sentence execution as it accelerates a person s integration in society and it also provides inmates with the possibility of release prior to the completion of a punishment term, instead serving the remaining part of the sentence within society under supervision of the State Probation Service. If a person is serving a sentence related to deprivation of liberty, this person is entitled to voluntary participate in victim-offender mediation (hereinafter referred to as VOM) 82 at any stage of criminal proceedings 83. For a person serving a sentence in prison, VOM is a voluntary process facilitated by the State Probation Service. In 2013, there have been 12 such cases carried out. One must take into account that reaching the settlement with the victim will not automatically have an impact on the term of imprisonment that is imposed by the court. However, such a settlement will be considered when deciding on release prior to the completion of a punishment and allocating the person under supervision of the State Probation Service What is the place of the victim in policies to design and implement alternatives to imprisonment? 2.4. What is the relationship between the entity of damages suffered by victims and the implementation of alternatives to imprisonment? In accordance with current legal provisions of the Criminal Law 85, a person, who has been recognized as a victim within criminal proceedings does not have a direct impact (and neither can a victim require something specific) on the offender s sentence or security measures that the 81 Author s note: in accordance with the Annual report of 2013 of Latvian Prison Administration, there are dozens of programs related to education, employment, social behavior correction, spiritual care and health care. As this information is of large-scale, it is impossible to include it in this report due to limitations of report s length Regulations of Cabinet of Ministers No. 825 on Procedure for organizing and facilitating Victim-offender mediation by State Probation Service, (accessed ). 83 Author s note: in accordance with information provided by State Probation Service, in 2013 there were 1090 VOMs carried out, where in 688 cases the initiators were the offenders. In 32 cases adults participated in VOM during the execution of sentence, in 12 cases these adults were sentence with deprivation of liberty. 84 More information on application of Restorative Justice tools in Latvia is available here: Restorative Justice in Latvia: Advancement, Perspectives and Challenges in Future (2013), (accessed ). 85 The Criminal Procedure Law (2005), (accessed ). 134

135 court should impose. At the same time, at all stages of criminal proceedings 86 victims have the rights to express their views regarding every matter to be discussed, to be informed about the process of the specific case, to submit recusals and applications, to speak at all court sessions, and to express their opinion. An investigating judge shall decide on the application of arrest in pre-trial proceedings and until the commencement of the trial in a court of first instance by examining a proposal of a person directing the proceedings (in most cases - police), but until the commencement of a trial a proposal of a public prosecutor, hearing the views of the relevant person, as well as examining case materials and assessing the reasons and grounds for placing a person under arrest 87. If the victim has submitted (to police or prosecutor) his or her opinion (application) on imposing a certain type of security measure for the suspect or accused due to feeling threatened, the court can consider this information. However, the basic approach would be for the judge to assess whether there are grounds for imposing pre-trial arrest for the suspect or accused as foreseen in CPL 88. When making a judgement for conviction, the following aspects will be considered: seriousness or nature of a criminal offence, circumstances of the committing of a criminal offence, the amount of harm caused to the victim, the aggravating and mitigating circumstances as well as any personal characterising information. If the victim feels threatened, he or she is entitled to special protection which allows not to disclose one s identity and to participate in court sessions via audio or video conferencing. Within the Latvian Criminal Justice system there is no direct link between the amount and seriousness of harm caused to the victim and application of sanction that is not related to deprivation of liberty. In the case of criminal offence, the seriousness of criminal offence 89, the form of guilt (through negligence or intentionally) as well as the aggravating and mitigating circumstances are all considered. The court adjudges sentence to the extent set out in the section of the Special Part of Criminal Law as it provides for liability for the criminal offence committed, and incompliance with the provisions of the General Part of Criminal Law. In determining a sentence, the court takes into account the character of and harm caused by the criminal offence committed, the personality of the offender and mitigating or aggravating circumstances. If a criminal violation or a less serious crime is committed, deprivation of liberty 86 Ibid, Part 6, (accessed ). 87 Ibid, Article 274, (accessed ). 88 Ibid, Article 272 (accessed ). 89 Criminal Law (1998), Article 7, (accessed ). 135

136 will be imposed only in cases where the goal of punishment cannot be reached by imposing any other sanction, not related to isolation from society, as foreseen in the corresponding section of CL 90. In relation to the role of crime victims in criminal proceedings, several research-based 91 reforms are planned to be carried out in Latvia, including those regarding the transposition of Directive 2012/29/EU of the European Parliament and of the Council of October 25, 2012, which establish minimum standards on the rights, support and protection of victims of crime and replace the Council Framework Decision 2001/220/JHA What is the role of civil society in debates and policies about alternatives to imprisonment? In Latvia, civil society s involvement in the decision making process and cooperation with public administration is usually carried out through non-governmental organizations (hereinafter referred to as NGOs). The following forms of cooperation are possible: a) NGOs can participate in the work of legislator (parliament of Latvia Saeima) with their proposals and it is also possible to attend and to express opinions at the meetings of Saeima s sectoral committees. These forms of participation have been in place since 2006 when the Declaration on Development of Civil Society in Latvia and on Cooperation with Non-governmental Organizations was adopted 92. The Declaration foresees a specific procedure detailing the ways in which representatives from NGOs can engage in the work of the Saeima s committees and how these committees must listen to opinions and suggestions of NGOs and society regarding the issues within the scope of their competence. 90 Ibid, Article 46, (accessed ). 91 Author s note: more information on development of victims support system is available here: Development of compensation mechanisms in Latvia, Provision of the Needs of Crime Victims: Support to Prevention of Victimisation in Latvia, (accessed ). 92 Declaration on Development of Civil Society in Latvia and on Cooperation with Non-governmental Organizations, (accessed ). 136

137 b) NGOs can participate in the work of the Cabinet of Ministers of the Republic of Latvia with their proposals. In 2005, a memorandum on cooperation among the Cabinet of Ministers and Non-governmental Organizations 93 was signed its goal is to support effective and socially focused work of the public administration. For those organizations, which have signed the memorandum, cooperation with the Cabinet of Ministers has improved. As cooperative partners, these organizations are asked to participate in discussions about the public administration s documents and participate in the work groups from different ministries as they discuss laws and policy development documents 94. c) NGOs can cooperate with specific institutions of the public administration in accordance with their field of activities. For instance, the Prison Administration of Latvia has established close cooperation with researchers from Centre for Public Policy PROVIDUS (within the field of research), the Prison Fellowship Latvia (for the resocialisation of inmates) and other NGOS. 3. Cross-cutting and topical issues 3.1. Is the argument of cost-benefit-analysis used in designing and implementing policies towards alternatives to imprisonment? There have been calculations made as to the expenses of sentence execution in Latvia. In , the daily costs of inmate upkeep 96 were LVL 13,15 per person and these costs exceeded the 93 Memorandum on Cooperation among the Cabinet of Ministers and Non-governmental Organizations, (accessed ). 94 Memorandum on Cooperation among the Cabinet of Ministers and Non-governmental Organizations affirmation for government s and society s cooperation, (accessed ). 95 Author s note: in order with the information provided by Latvian Prison Administration on the first 6 months of 2014, daily costs for one inmate were EUR 20,96 and exceeded the estimated costs for EUR 2,76 or 15,2% 96 Author s note: Exchange rate for EUR to LVL on was EUR 1=LVL 0,

138 estimated costs by LVL 1,92 or 14,6% (for both pre-trial arrested and convicted) 97. Meanwhile, the costs of one State Probation Service client 98 in 2013 were LVL 0,89 (for all probation clients together). Even though there has not been a more detailed cost analysis carried out, for instance, as to different types of punishments that are executed by the State Probation Service, this data is sufficient to conclude that any punishments related to isolation from society will be significantly more expensive than punishments not related to isolation from society. Without a doubt, calculations on cost benefits contribute to the development of penal policy, but, at the same time, one must remember that the costs are not the only factor that is considered when planning the penal policy of a country. For instance, if a rapid increase of serious and especially serious crimes would occur, as a result, the number of offenders for whom the court should impose deprivation of liberty would also increase in this situation the security of society would remain as the priority and imprisonment would be the determined sanction. This would result in additional expenses from the state s budget. In order to reduce the risks that are related to recidivism and the increase of new crimes, appropriate attention to the development of effective secondary and primary prevention is crucial Are there any debates about the position of psychiatric patients in relation to ordinary detainees? As stated in the Criminal Law, for persons, who have committed the offences set out in CL, but who suffer from mental disorders and have been found to be mentally incapable or have diminished mental capacity, the following compulsory measures of a medical nature may be determined: 1) out-patient medical treatment in a medical institution; 2) medical treatment of a general type in a psychiatric hospital (ward); 3) medical treatment under guard in a specialized psychiatric hospital (ward). If, according to the nature of the committed offence and person s mental state, this person is not 97 Information provided by Latvian Prison Administration as of In accordance with information on costs of 2013 as provided by State Probation Service of Latvia. 138

139 dangerous to the public, a court may place the person with his or her relatives or other persons, who shall act as caretakers. If a person has been found to have a diminished mental capacity, medical treatment in places of deprivation of liberty as are appropriate thereto, may also be determined 99. The court may determine compulsory measures of a medical nature for persons, who have committed an offence while being in a state of mental incapacity or, after commission of the offence or judgment has been rendered, have become mentally ill, removing their ability to understand or control their actions, if these persons are dangerous to the public according to the nature of the committed offence and their mental state. The compulsory medical treatment and type of medical institution is determined by the court according to the specific mental illness of the person in question and the nature of his or her offence. In the case of a person, who has become mentally ill and is therefore unable to understand or control their actions, a court may adjudge a sentence against this person after he or she recovers their health, if the period of limitation has not expired or there is no other basis for releasing them from criminal liability and sentence. Provision of compulsory measures of a medical nature shall be terminated or altered by a court, on the basis of the opinion of the medical institution, if the person concerned has recovered his or her health or the nature of the illness has changed to such a degree that it is not necessary to provide such measures 100. If a person is serving a sentence in prison and psychiatrist recognizes a need for medical treatment, this person will be placed in a Prisons Hospital, where there is a separate department for psychiatric patients. Therefore, inmates with psychiatric illnesses are treated during their sentence and remain separate from other inmates. If the psychiatrist finds that person s condition has improved and there are no grounds for staying in the Prisons Hospital, the inmate is placed in a prison which corresponds to his or her health conditions so as to continue serving the sentence. The Practice of Latvian prisons shows that in most cases the psychiatric illnesses are linked to autoagression, predisposition to suicide or self-mutilation (suicidal behavior). In order to foster the professional preparedness of specialists working in the Latvian Prison Administration and prisons when dealing with inmates with the above indicated problems and to find approaches in line with international requirements, on April 1, 2014, the Prison 99 Criminal Law, Article 68, (accessed ). 100 Ibid, Article 69, (accessed ). 139

140 Administration launched a project, Development of Suicide Prevention Systems in Prisons 101. In 2013, there were 4621 cases of psychiatric illnesses and behavioral problems within the Latvian prison system Are there any debates about the position of drug addicts in relation to ordinary detainees? Psychiatric illnesses and different types of behavioral disorders are closely linked with abuse of addictive substances. According to data from 2013, of the total number of the identified 4621 cases of psychiatric illnesses and behavioral disorders many derived from drug abuse there were 1621 cases of drug abuse with 918 of them related to intravenous drug users. In 2013, there were 454 cases of HIV linked with drug abuse and 107 cases of AIDS. It must also be noted that among the inmates in Latvia it is quite common that the illness has derived from lasting and excessive alcohol abuse and abuse of other addictive substances. Thus, in 2013, 15 cases of death were registered in prisons 10 of those because of an illness, 3 due to suicide and two death cases resulted from bodily injury. The main reasons for deaths of inmates: oncological diseases, cardiovascular diseases, AIDS and AIDS with tuberculosis. As the level of psychiatric illnesses, HIV, AIDS and tuberculosis among inmates is high, specialists from the prison system implement a number of measures to control and minimize the problems. Therefore, regular health checks are organized for inmates 103, for instance: a) In 2013, 2237 inmates underwent testing for determination of HIV infection, there were also 8719 x-ray examinations for tuberculosis and lung disease identification; b) Use of new screening tests for quick detection of drugs and psychotropic substances (with combination of parameters based on the substances that are most often identified in prisons); 114 cases of drug abuse were indentified in 2013; 101 Project Development of Suicide Prevention Systems in Prisons is implemented with support of European Commission, Nr.JUST/2013/JPEN/AG/4554, (accessed ). 102 Annual report of 2013, Latvian Prison Administration, (accessed ). 103 Ibid, (accessed ). 140

141 c) In 2013, in cooperation with the Riga Centre of Psychiatry and Narcology, 11 inmates continued to undergo the long-term pharmacological treatment with a methadone program In order to address the issue of addictions among inmates on a long term basis, the Latvian Prison Administration has started a project, 104 Development of New Department in Olaines Prison, Including Construction and Training of Personnel. Within the scope of the project, a system for isolating the inmates from addictive substances as well as ensuring preconditions for resocialisation work with groups of addicted inmates is planned. Additionally, specialists from prisons would also be trained to use new methods and approaches when working with inmates with addictions. In order to ensure involvement of addicted inmates in resocialisation measures during their sentence, firstly, it is crucial to solve the problem of addiction and only then turn to resocialisation. For this reason, one of the Latvia s prisons (Olaines prison) will create a place free of drugs and other addictive substances, where addicted inmates will undergo complex treatment and will be involved in resocialisation activities. 4. Concluding remarks: the future of alternatives to imprisonment Implementation of various alternatives to pre-trial arrest and imprisonment has to be carried out within the context of penal policy development and development of the system for the execution of imprisonment. It must be stressed that advanced criminal justice policy, based on European values, is the main precondition for successful implementation of alternatives to imprisonment. This leads to conclusion that, for in the near future, the following priorities will be on the agenda for criminal justice policy: 1. Development of a prevention system in order to reach two goals: 1.1. Implementation of measures to reduce recidivism (secondary prevention) so as to make the resocialisation system more effective both when executing deprivation of liberty as well as when executing sentences that are not related to deprivation of liberty. This conclusion is supported by the fact that 52,5% of all inmates have been in prison for two and more times. 104 Project Development of new department in Olaines prison, including construction and training of personnel, Nr.LV08/2, (accessed ). 141

142 1.2. Implementation of primary prevention measures so that persons would not commit criminal offences that lead them to imprisonment. This conclusion is supported by the fact that 47,5% are in prison for the first time. 2. Implementation of electronic monitoring 105 would provide possibilities to release convicts prior to the completion of their sentence therefore ensuring that sentence in prison would be executed only for those offenders, whose behavioral risks indicate a need for such an approach, while offenders with low risks would be released prior to the completion of their sentence and placed under supervision of the State Probation Service. 3. Targeted planning and implementation of resocialisation process in prisons so as to identify the resocialisation needs of inmates, to evaluate risks of behaving in antisocial ways and committing new criminal offences while serving the sentence. Therefore, it will be possible to take the most suitable measures for social behavior correction and social rehabilitation as well as to take other measures that can be implemented while serving the sentence and can be included in the inmates resocialisation plan. 4. Creation of a system of working with convicted persons with addiction to drugs and other addictive substances 106 in order to improve their physical and psychological health conditions and to foster their integration within the system of resocialisation. 105 With co-financing of Ministry of Justice of Latvia and Norwegian Government Bilateral Financial Instrument a program Reform of the Latvian Correctional services and police Detention Centres was started on started Within the framework of this program, State Probation Service implements the project Increasing the Application of Alternatives to Imprisonment (Including Possible Pilot Project on Electronic Surveillance) Nr.LV08/1, (accessed ). 106 Project Development of new department in Olaines prison, including construction and training of personnel, Nr.LV08/2, (accessed ). 142

143 List of references Laws and regulations 1. The Constitution of the Republic of Latvia, Article 94, (accessed on ). 2. Criminal Law (1998), (accessed ). 3. Law on Arrest Execution Procedure (2006) Article 23, (accessed ). 4. Law on Religious Organizations, (accessed ). 5. State Probation Service Law (2003), (accessed ). 6. The Criminal Procedure Law (2005), (accessed ). 7. The Sentence Execution Code, (accessed ) Regulations of Cabinet of Ministers No. 825 on Procedure for organizing and facilitating Victim-offender mediation by State Probation Service, (accessed ) Regulations of Cabinet of Ministers No. 191 on Procedure of Implementation of convicted persons resocialisation, (accessed ). 10. Green paper on the application on EU Criminal Justice legislation in the field of detention, (accessed ). 11. Declaration on Development of Civil Society in Latvia and on Cooperation with Nongovernmental Organizations, (accessed ). 143

144 12. Memorandum on Cooperation among the Cabinet of Ministers and Non-governmental Organizations, pdf (accessed ). Internet resources: 13. Development of compensation mechanisms in Latvia, (accessed ). 14. Latvian Prison Administration s Annual report of 2013, (accessed ). 15. List of documents that Latvia uses for cooperation within the field of criminal justice with other European countries, (accessed ). 16. Memorandum on Cooperation among the Cabinet of Ministers and Non-governmental Organizations affirmation for government s and society s cooperation, (accessed ). 17. Pre-trial detention in Latvian criminal proceedings (research paper in Latvian), A.Judins, I.Kronberga, 2011, page 74, (accessed ). 18. Project Increasing the Application of Alternatives to Imprisonment (Including Possible Pilot Project on Electronic Surveillance) Nr.LV08/1, (accessed ). 19. Project Development of new department in Olaines prison, including construction and training of personnel, Nr.LV08/2, (accessed ). 20. Project Development of Suicide Prevention Systems in Prisons is implemented with support of European Commission, Nr.JUST/2013/JPEN/AG/4554, (accessed ). 21. Provision of the Needs of Crime Victims: Support to Prevention of Victimisation in Latvia, G_105_finish_doc.pdf (accessed ). 22. Publicly available data from Judicial Information System, (accessed ). 23. Restorative Justice in Latvia: Advancement, Perspectives and Challenges in Future (2013), ia_report.pdf (accessed ). 144

145 24. The way to Restorative Justice, Part 1, The Historical background, Page 3, (accessed ). 25. Thesis for Workshop The principle of normality - a way to safer society - integration and treatment of inmates, what works and what not?" (accessed ). 145

146 REDUCING PRISON POPULATIONS IN EUROPE Country study: ALTERNATIVES TO INCARCERATION IN FRANCE Prof. Martine Herzog-Evans, PhD (University of Reims) with the assistance of Attorney Boesel (Paris Bar) Final Report April PHASE I OVERVIEW OF ALTERNATIVES TO INCARCERATION 1. GENERAL LEGAL FRAMEWORK When trying to reduce incarceration, France uses a variety of methods, and focuses on the three phases of the penal continuum. However, such practices can at times also have other, and contradictory, aims. They cover: The pre-trial phase ( doorstep, or bis procedures ): alternative procedures to prosecution or to sentencing (pre-trial procedures); The trial (or sentencing) phase ( front door ): alternative sentences available to penal tribunals (tribunaux correctionnels, hereafter TC) in charge of felonies, when the choice has been made by the prosecutor to refer the case to the TC rather than a pre-trial procedure; The post-trial phase ( back door ): when a prison sentence has been imposed, a variety of measures allow a specialised judge to reduce, transform, convert, modify, adapt or shorten it. I PRE-TRIAL ALTERNATIVE PROCEDURES : A General presentation Under French law, the prosecutor has the right to choose between a host of pre-trial procedures which can replace a court trial. Such a decision is called the 'orientation of penal response' and is originally derived from the general right of prosecutors to discretionarily assess the opportunity to prosecute). Article 40-1 of the penal procedure code (hereafter PPC) thereby allows prosecutors to decide... if it is opportune 1 either to initiate prosecution; 2 or to initiate an alternative procedure as regulated by articles 41-1 and ; 3 or to close the case with no further action... 1 This document was first drafted in French in April It was then translated into English by prof. M. H-Evans, in May 2015, with some updates. 2 Underlined by the authors. 146

147 However, as Grunvald has stated: The orientation of penal cases is no longer the consequence of the general principle of the opportunity to prosecute (since in reality closing cases is now strongly limited by statutes); it now is a decision about 'the opportunity to choose amongst various modalities of their court s penal response 3. In other words, the orientation of felony cases has become one of the most important decision within penal courts and depending on the decision made in this regard, imprisonment is, or is not, legally possible. Penal orientation can take two forms: it either constitutes an alternative procedure to prosecution itself, or an alternative to sentencing. Alternatives to prosecution' were developed in the nineties. Initially their goal was not to limit imprisonment, but, quite the contrary, represented a form of zero tolerance spirit whereby all offences were to be dealt with (rather than dismissed) and processed faster. If the choice was made to thus instrumentalise prosecutors it was also because in France, they are not independent from the executive branch and have to abide by the general and national penal orientations issued by the Ministry of Justice. It was thought they would better comply with the zero tolerance orientation given by the government than independent courts of law would have. Two different forms of alternative penal responses were thus created by a June 1999 (23) Act: 'the alternative measures of article 41-1 of the penal procedure code, often labelled simple alternatives, and article 41-2 penal composition, which is often understood as being a more punitive alternative, as it aims at punishing the offender...' 4, albeit moderately. Alternatives to trial were also developed in order to provide, there again, a swift and certain response to all felony offenses without the need to assemble three judges in order to compose a collegial TC hearing or to refer such cases to a one judge TC chamber (art. 398A, para. 3 PPC). However, with such alternatives, either the President of the TC or a judge delegated by him/her must approve the decision made by the prosecutor. With both categories of procedures the main goal is to ensure that all offences are indeed punished swiftly, albeit moderately, this without flooding the courts. It is thus only indirectly that their implementation can reduce imprisonment. B Alternative procedures to prosecution Two alternative procedures to prosecution are provided for by the PPC. 1/ Article 41-1 procedure penal mediation: rather than prosecuting felonies, prosecutors can opt for other alternative avenues. In so acting they pursue a variety of goals: ensuring that the damages have been paid to the victim; putting an end to the public order disruption caused by the offence; and facilitating the offender s reinsertion into society. On this legal basis, the prosecutor can: simply remind the offender of the law (admonition); refer him/her to a treatment or programme organised by a health, employment, parenting, educational, or other social agency; order him to pay damages to the victim; or to do whatever is needed to comply with the law. 2/ Article 41-2 procedure penal composition: 3 Grunvald S. (2014), Les choix et schémas d'orientation, in Danet J. (ed.), La réponse pénale, 10 ans de traitement des délits, Rennes, Editions Presses Universitaires de Rennes: Pouget Ph. (2014) "La mise en place de la diversification du traitement des délits à travers la législation" in in Danet J. (dir.), La réponse pénale, 10 ans de traitement des délits, Rennes, Editions Presses Universitaires de Rennes: 54-81,

148 When a person admits having committed (a) felony(s) punishable by a fine or a prison sentence of up to five years, rather than prosecuting him/her, the prosecutor can punish this offence by opting for a penal composition procedure whereby he can order: a fine; a confiscation; a programme (health, social, educational, and so on...). This procedure is also applicable to misdemeanour (art. 41-3). The uneven effects of these two procedures on public prosecution: Article 41-2 offers a more far-reaching alternative to prosecution, perhaps even a radical one, since the full execution of penal composition by the offender extinguishes prosecution, which means that the prosecutor is no longer allowed to prosecute the offence and the victim can no longer file a complaint. Conversely, article 41-1 procedures do not prevent the victim from filing a complaint. Importantly, in both cases, no custodial sentence can be pronounced. In other words, by opting for either one of these procedures, the prosecutor accepts that no imprisonment shall be possible. 3) A recent August 15, 2014 Act (n pertaining to the individualisation of sentences and strengthening the effectiveness of penal sentencing hereafter the Taubira Act ), has allowed police officers in charge of penal investigations to propose a penal transaction to offenders for as long as no prosecution or other bis procedure has been launched. This police transaction is governed by the newly added article of the PPC, which states that it can be proposed to the offender, inter alia for most misdemeanours, or for felonies punishable by up to one year of imprisonment (except various forms of public officer contempt)... This transaction has to be authorised by the public prosecutor, accepted by the person in question, and then accredited by the president of the TC or by a judge delegated by him. This payable fine thus proposed as a police transaction is set on the basis of the offence s circumstances and its seriousness, the personality and the material, family and social context of the perpetrator as well as his resources and expenditures. Again, importantly, when complied with police transaction extinguishes the right to prosecute and filing complaints; it also cannot consist in a custodial sanction. C Alternatives to trial There are two alternatives to trial in the French legal system. 1/ Penal order procedure (9 th of September 2002 Act (n ) Penal order procedures allow TC Judges imposing a sentence outside of court against adult offenders charged with felonies (so long as they have not also committed a misdemeanour), with the exclusion of involuntary homicide or bodily harm. This procedure can only be implemented so long as the victim has not expressed his or her intentions during the investigation phase. Again, opting for this procedure prevents imposing a custodial sentence (art. 495 PPC). This rule was deemed essential in view of the fact that penal orders are decided outside of court, without a hearing, due process, and in particular without any defence rights. 2/ Appearance Following Guilty Plea (AFGP), sometimes labelled plea bargaining à la française is a prosecutor-led procedure which allows the prosecutor proposing a sentence to the offender who has to appear in his office, and must be assisted by an attorney. This sentence can only be executed if it is accepted by the accused and formally accredited by the president of the TC or a judge delegated by him during a homologation hearing. In the absence of such an agreement or 148

149 accreditation, the accused must appear before a regular TC and be tried. Contrary to other bis procedures, with AFGP, a custodial sentence can indeed be imposed. However, in such a case the sentence is reduced in comparison with the norm. In fact, article of the PPC states that when a prison sentence is proposed, its duration cannot exceed one year, nor half of the applicable prison sentence. In other words, this procedure does not truly provide an alternative to imprisonment; but it does offer a reduction of imprisonment s length. 149

150 Quantified data According to the most recent data published by the Ministry of Justice 5, on prosecutable cases (for a total of 1,379,076 cases), prosecutors have opted for bis procedures in the following proportions: penal compositions 5.5% (75,493) other alternative procedures 39.7% (547,678) As a comparison they have: decided to prosecute in 43.8% (603,582) of the cases; dismissed the case without further action in 11% (152,333) of the cases. According to the same data and based on the sum total number of decisions to prosecute (603,582) prosecutors have opted for: appraising the TC in cases, representing 81.56% of prosecutable cases of which AFGP represented 65,106, i.e % of prosecutable cases & penal order represented 146,102, i.e % of prosecutable cases. II ALTERNATIVE SENTENCES In France, Custodial sentences remain the sentence par excellence. Even though sentences are on average of a rather short duration, custody still represents the leading sanction pronounced by French TC. Article of the PC as amended by the aforementioned Taubira Act states that TC can only pronounce unsuspended custodial sentences: when this sentence is necessary in view of the seriousness of the offense and the personality of the offender and if any other sentence is patently inadequate. Even then, the court must try and convert the custodial sentence into an alternative sentence; if they explain and justify in their ruling, based on statutes requirements, why they pronounced this sentence. Nonetheless, custodial sentences are still currently at the very heart of French penal practices. Indeed, according to the penal code (here after PC), all crimes and most felonies are punishable by imprisonment and fine. All other sentences hold a secondary position in the PC. Inevitably this impacts on courts practices as shown in recent data. In the course of the year 2012, 617,221 convictions were pronounced: 292,399 were prison sentences, representing 47.37% of all sentences; Of these 292,399 prison sentences, 122,301 (i.e. 20%) were mixed sentences i.e. comprised one part custodial, one part suspended. However, French statutes also display a wide array of alternative community sentences: 5 Les chiffres clés de la Justice Sous-direction de la Statistique et des Etudes du Ministère de la Justice (French Ministry of Justice, Statistics and Studies Section). 150

151 Fine. A fine is a sum of money determined by the TC, within the limits determined by the PC, which the convicted person has to pay to the Public Treasury. Fines can be pronounced either as a stand-alone sentence or alongside another sentence in particular imprisonment Fines represented 36.54% (225,582) of all the pronounced sentences during the year Day fine. Article of the PC states that when an offense is punishable by imprisonment, the TC can pronounce a day-fine which consists, for the convicted person, in paying a sum of the money to the Public Treasury, of which the total sum results from the determination by the judge of a daily contribution during a specific number of days. In determining both the daily amount and the number of days (one thus multiplying the other), the judge takes into account the financial situation of the convicted person. If the person fails to pay his day-fine he or she has to spend the predetermined number of days in prison. As we shall see infra, this measure can equally be pronounced by the French reentry judge (juge de l application des peines hereafter JAP). During the year 2012, 24,271 day-fine sentences were pronounced, representing 3.93% of all sentences. Simple or conditional sentence suspension: With sentence suspension, a prison sentence is formally pronounced but is not executed. It is only partially or totally executed if the convicted person commits another offense, or, in the conditional form of suspended sentence, if the person does not comply with his obligations. Suspension can be simple or conditional (i.e. the person is placed under probation) (see art to of the PC). Sentence suspension can either be total and cover the entire sentence; it can also be partial and cover only part of the sentence (the sentence is then called mixed ) in which case the person shall serve the unsuspended part of the sentence in prison and the suspended part once he is released. In the case of mixed conditional suspension this ensures that once the person is released he or she can be supervised for a minimal period of time (rarely less than a year). Simple suspension exempts the convicted person from the execution of all or part (in the case of a mixed sentence) of the custodial sentence. It can be pronounced for any felony offence punishable by up to five years. Conditional suspension (or probationary suspension) also exempts from all or part of the execution of a custodial sentence, which remains suspended. The sentence thus comprises a custodial part (suspended) and a probationary part of up to three years (five for recidivists and seven for double recidivists). During his or her probation, the convicted person is subjected to a series of mandatory obligations as listed in article of the PC (e.g. submit to meetings with a probation officer), and can additionally be subjected to optional obligations from which the judge or the JAP can choose on the basis of article of the PC (the most frequent being to seek employment, pay damages, get treatment and reside at a fixed abode). Conditional suspension can only be pronounced for sentences of up to five years (ten years in case of legal recidivism). Impact of these measures: Simple suspension: If the beneficiary is not convicted again for a crime or a felony within a period of five years after the simple suspension sentence has been passed, this conviction becomes null and void (non-avenu), that is, it retrospectively disappears and is expunged from the person s criminal record. Conversely, a new conviction within the five year limit for another crime or felony causes the revocation of the suspended custodial part of the sentence. In this case, the new sentence 151

152 which is pronounced for the new offence cannot be merged with the sentence resulting from simple suspension s revocation: both are to be executed sequentially. However, the Taubira Act has aimed at increasing courts discretionary power in order to better individualise punishment. Beforehand, a new sentence automatically led to the revocation of a previous simple suspension. As of January 1, 2015, courts can now exercise discretion in such matters. Conditional suspension: If the convicted person complies with his obligations and does not commit a new crime or felony during the probation period, conditional suspension is likewise automatically deemed non-avenu and is expunged from the person s criminal record. Conversely, if the person reoffends, the sentencing court can decide to revoke all or part of the custodial sentence. Conditional suspension can likewise be totally or partially revoked by the JAP if the person has not complied with his obligations. The JAP can also extend the length of the sentence, and therefore of the probation period, providing the aforementioned maxima of 3, 5 or 7 years are not exceeded and were not originally pronounced by the sentencing court. In practice, revocations are few, as JAP first summon probationers for a solemn reminding of their obligations 6. If the person has complied exceptionally well with his obligations, the JAP can even declare the sentence nonavenu before the term of the sentence has been served, this under the added condition that the person has served at least one year on probation. Other alternative sentences : Other CSM are possible where imprisonment was incurred. - community work (CW) is regulated by article of the PC. It states that when a prison sentence is incurred, the offender can be sentenced to CW in its stead, that is a period of 20 to 280 hours of unpaid work in the community for the benefit of either a public service or administration, or a private sector entity to which a public service mission has been delegated, or, lastly, a third sector association. For this sentence, the offender s consent is mandatory. CW can replace imprisonment; it can never be pronounced alongside or additionally to a custodial sentence. It can, however, constitute an obligation attached to the new penal constraint sentence created by the Taubira Act. With CW, the person must execute his unpaid work in the community, attend meetings with his probation officer or, more rarely, the JAP, and justify of his circumstances (housing, employment, etc.), all mandatory obligations laid out in article of the PC. The person cannot be subjected to a full probation, which would include any of the obligations laid out in article of the PC, unless it is attached to penal constraint. If either of the person s obligations is not complied with, this constitutes an offence, liable, under article of the PC by two year imprisonment and/or a 30,000 fine. - conditional suspension plus community work (CSCW). Conditional suspension plus community work is not the mere addition of the two aforementioned sentences of community work and conditional suspension; nor is CW in this case a mere obligation attached to conditional suspension. CSCW is a distinct sentence which comprises, on the one hand, CW elements, and, on the other hand, conditional suspension elements. It can be pronounced either by the sentencing court (art of the PC), or, and we shall get back to this infra, it can also result from a conversion decision made by the JAP. In practice, most CSCW sentences result from such a conversion. 6 Herzog-Evans M. (2013), Le juge de l application des peines. Monsieur Jourdain de la désistance, Paris, l Harmattan (published in English : Herzog-Evans (2014), French Re-entry Courts and Rehabilitation : Mister Jourdain of desistance, Paris l Harmattan). 152

153 If the offender does not comply with his CW, with the probation attached to the conditional part of his sentence, or commits another offence whilst on probation, the sentence can be revoked under the same conditions as with a regular conditional suspension sentence (see supra). In practice, however, given the desistance culture of most French JAP, it is preceded by one or more reminding of the obligations hearing. During the year 2012, 25,732 CW sentences were pronounced, which represented a little more than 4% of all sentences pronounced this same year by all sentencing courts. These numbers include CSCW with the following distribution: 8,721 CSCW; 17,011 CW. According to the Ministry of Justice, in 2011, 77% of all CW sentences (including CSCW) were executed without incident. On the 1 st of January 2013, French probation services (PS) supervised 34,096 persons serving a CW or a CSCW sentence (unfortunately official data do not distinguish between the two). On January 1, 2014, this figure had increased up to 36, Citizenship internship (art PC) can be pronounced instead of a prison sentence. During this internship, the person takes classes in which he is reminded of the republican values of tolerance and of respect for human dignity on which society is founded. The cost of this internship is supported by the convicted person and therefore, requires his consent. For this reason it cannot be pronounced against a person who fails to enter an appearance. - A list of Supplementary sentences can also be pronounced as a principal penalty. Their supplementary nature, however, implies that in most cases they are pronounced alongside another principal sentence. They are listed in article of the PC. These sentences either entail a restriction of liberties or a deprivation of a right. They are, inter alia: suspension of a driving license; bans on driving certain categories of vehicles; cancellation of a driving license; prohibition of carrying weapons; confiscation of the weapons, etc. As an illustration, in 2011, 198,505 supplementary sentences were pronounced to punish felonies: 3,053 sentences of banning from the French territory; 90,887 suspensions of a driving license; 26,707 banning from applying for a new driving license after its cancellation; 42,390 confiscations. bearing in mind that official statistics do not explain whether this concerns principal or supplementary sentences. - Remedial sanction (article PC) is a form of restorative justice sanction which can be pronounced instead of or at the same time of a prison sentence. It consists in the obligation for the convicted person to repair, within a timeframe as determined by the TC, the damage caused to the victim. If the person does not comply with this obligation, he faces the execution of a prison sentence, of no more than six months, as predetermined in advance by the TC. Unfortunately this 7 Trimestrial statistics of offenders supervised in the community, January 2014 Table

154 sentence is hardly ever imposed. - Exemption and postponement of the sentence. Here, the TC can convict the person, but either exempts the person from serving any sentence, or postpones the sentencing decision at a later stage. Exemption is possible if the person has desisted, has repaired the damage caused to the victim and there is no further disruption to public order. Postponement can be simple or conditional and cannot exceed one year. With simple postponement, the person must not commit a new offence during the postponement period; with conditional postponement, the person is subjected to a probation period during which he or she is subjected to the regular obligations as laid out in articles and of the PC. At the sentencing hearing, the person is either sentenced, or the TC can further postpone sentencing (if the one year maximum has not been exceeded the first time around), or can exempt the person from any sentence, if exemption conditions are met. That being said, on January 1 st, 2014 probation services were merely supervising 184 conditional postponement cases. Postponement may in theory make sense as it allows the person desisting and meeting conditions, and the Criminal Justice System (CJS) time to gather facts that can be included in a detailed report. In practice, it is however extremely difficult to implement as it requires two separate hearings, an added workload which is unthinkable in the current extremely overloaded French CJS. For this reason it is extremely doubtful that the new form of postponement created by Taubira Act, in order, much like in common law jurisdictions, to generate additional time to investigate on the person s material, familial and social circumstances in order for the probation service to write a detailed pre-sentence report, will be a success. It is important for readers to understand that in France, a penal trial is not divided into two phases as it is in many other jurisdictions, one leading to conviction, the other to sentencing. There is only one phase, where conviction and sentencing are both decided in one instance. The sentence is thus very quickly determined based on the conviction itself and, in the majority of cases, with very little information, on the person s circumstances and psycho-criminological risks and needs. Indeed, in the vast majority of cases, there simply is no pre-sentence report. As the literature has shown, the less a court knows about a person, the harsher it will tend to be 8. This situation is thus one of the most serious obstacles to French courts pronouncing more alternative sentences STATISTICS: Felonies only Total number of custodial sentences for felony offences: 290,322 Unsuspended custodial sentences: 89,484 Simple suspension (mixed): 4,557 Conditional suspension (mixed): 27,505 Total simple suspension: 111,015 8 E.g. Hough M., Jacobson J. & Millie A. (2003), The Decision to Imprison: Sentencing and the Prison Population, Prison Reform Trust, London; Tombs J. (2004), A Unique Punishment. Sentencing and the Prison Population in Scotland, Edinburgh, the Scottish Consortium on Crime & Criminal Justice; Boone M. & Herzog-Evans M. (2013), Decision-Making and Offender Supervision, in F. McNeill & K. Beyens (dir.), Offender Supervision in Europe, Palgrave McMillan:

155 Total conditional suspension: 49,207 CSCW: 8,554 Crime, Felonies and misdemeanour: Statistics published by the Ministry of Justice for the year 2011, regarding all offences (crimes, felonies, and misdemeanours): Total sentences: Total prison sentences: Unsuspended: Partially suspended (mixed): Totally suspended: Fines: Sentence exemptions:

156 Penal Constraint Penal constraint is a new sentence created by the Taubira Act. It is yet another addition to the long list of existing alternatives to imprisonment. This sentence is a principal penalty which consists in a probation period of six months to five years. According to the new Act, the person sentenced to penal constraint is thus subjected to regular probation, as foreseen in articles , However, CW can also be imposed as an added obligation. Similarly the court can decide to mandate the person to treatment under the same very strict conditions that would normally be imposed to sex offenders or batterers. The duration is longer than the basic length of a conditional suspension probation period, as it is of five rather than three years. It must be noted, however that with conditional suspension, recidivists can serve up to five, or even seven years under probation; an extended period which has not been replicated with penal constraint. As many commentators have noted 9, penal constraint is thus extremely similar to conditional suspension. However, as has just been described, it is more constraining than conditional suspension. At the time this report was written, it could be prognosticated that penal constraint would not be a success, firstly, because the probation services would not be in a capacity to ensure the stricter form of supervision which was expected of them, and secondly, because of the extreme legal confusion between legal constraint and conditional suspension. Indeed when this report was translated in May 2015, official figures from the Ministry of Justice showed that during the first five months of its implementation, only 425 sentences of penal constraints had been pronounced 10, this in spite of the very strong pressures placed onto tribunals and prosecutors by the Ministry of Justice. It was hoped by this new sentence supporters that it would successfully compete with conditional suspension; it is plain that this is not going to happen. Indeed, in a rather philosophical attempt to separate this new sentence from imprisonment, legislators have eliminated the suspended custodial sentence from the equation. However, inevitably, imprisonment was bound to come back 11, since breach and other violations would have to be sanctioned. Indeed, the extremely complicated system which was invented to make this happen is enough to discourage the courts 12. III SENTENCES IMPLEMENTATION Article 707 of the PPC is an introductory rule; it is the first article of the sentences implementation chapter of the PPC. It sets out the principles that must guide sentences implementation judges and tribunals, prosecutors, along with prison and probation staff, when they implement sentences and make decisions pertaining to victims and probationers. It thus sets out the following guidelines: prosecutor s offices and their related services should swiftly enforce the execution of all sentences ( 1); 9 L. Griffon- Yarza, (2015), La libération sous contrainte, nouvel oxymore juridique, Ajpénal: ; C. Kleitz (2013), Contrainte pénale : le coup d esbrouffe, Gazette du Palais, 17 octobre 2013 n 290, p. 3 ; M. Herzog-Evans (2013), Récidive et surpopulation: pas de baguette magique juridique, AJpénal mars 2013: P.V. Tournier, Statistiques des contraintes pénales prononcées au cours des cinq premiers mois, 11 M. Herzog-Evans (2013), Récidive et surpopulation: pas de baguette magique juridique, AJpénal mars 2013: Ibid and M. Herzog-Evans (2014), Loi Taubira : derrière un angélisme de façade, quelques progrès sur fond de logiques comptables et répressives où l équité et le réalisme comptent peu, Ajpénal :

157 preparing offenders for a crime-free future and their reintegration into society and preventing reoffending, are the ultimate goals of all the decisions made at the sentences implementation stage( 2); all offenders serving a custodial sentence should be early released and then supervised; none should max out and all sentences management decisions should be made based on the state of the local prison conditions( 3). Back door measures called sentence management measures in France are the third pathway, one that is increasingly used, to avoid or shorten custodial sentences. TC can pronounce a custodial sentence and consequently immediately convert it into a community sentence. However, this procedure is rarely used and the majority of the sentence management measures are pronounced by JAP in the context of one of the two following procedures, or for certain decisions concerning offenders serving long sentences, by a three JAP tribunal (tribunal de l application des peines, hereafter TAP): France has a particularly original procedure in place (provided for by art. 474 and of the PPC simply called procedure ) whereby a prison sentence of up to two year (one year for recidivists) can be transformed by the JAP into a CSM before it is even implemented (I). Furthermore, rather than merely parole, as in many other European jurisdictions 13, the French legal system displays a very large range of measures that can be used as early-release measures (II). These measures are equally applicable in the context of article procedures. 1 Conversion of custodial sentences before their execution: Articles 474 and foresee a very original procedure. A person having been sentenced for one or several offences, to a total custodial period which is not in excess of two years (one year for recidivists) and for which no bench warrant has been issued by the TC, is called before the JAP for a hearing. After the probation service has issued a report on the offender s circumstances and/or based on the documented proof provided for by this offender and/or his attorney, and this within a timeframe of four months, the JAP can transform the custodial sentence into a large number of CSM, i.e.: A CSCW in this case, however, only if the custodial sentence is of up to six months. As indicated supra, the vast majority of CSCW are pronounced by JAP; A day fine, in this case, again, only if the custodial sentence is of up to six months; Parole in its various forms (parental or, if the person does not have children, if he has been previously detained during the pre-trial phase, has been released, and has therefore executed part of his sentence); Semi-freedom, a measure whereby the person sleeps at the prison where he is incarcerated over the week-end (unless he benefits from furlough), and spends the day looking for 13 Padfield N. van Zyl Smit D. & Dünkel F. (2010), Release from Prison. European policy and practice, Cullompton, Willan Publishing. 157

158 employment, working, getting treatment, and so on, during the day; Placement in the community, a measure similar to approved premises in England and Wales or North American half-way houses, where offenders with complex needs who are highly dissocialised are supervised and supported by a host of third sector or municipal partners, working with the probation service who try and solve all the offenders needs in term of housing, employment, education, mental health, addictions, etc. Electronic monitoring (EM), in its non GPS form 14 2 Early release When a custodial sentence is being executed, a prisoner can still benefit from a sentence management measure ; in other words, he or she can be early-released. In this regard, France presents three particularities: It is the judiciary (JAP or TAP) which releases prisoners, and pronounces sentence management decisions, not an administrative commission. In this respect, French JAP and TAP can be analysed as being a primitive forms of problem-solving courts 15, and more exactly as reentry courts 16 ; As was mentioned supra, France does not solely rely on parole or EM; its legal system allows JAP and TAP choosing amongst a large variety of early release measures. This is the result of its very legalistic approach to penological matters. It views prisoners reentry more in terms of legal measures than in terms of programmes or active reentry support; Unfortunately, French practitioners have had to deal with a considerable number of legislative reforms over the last decade or so. Therefore, the diversity of release measures it offers the courts, which in itself is positive as it facilitates individualisation, is also afflicted with a considerable legal complexity. Parallel to a rather welcome measure diversity, the French legal system is now notably plagued with a procedure diversity. In some cases, JAP release prisoners in the course of a fair trial procedure compatible with legitimacy of justice components (art & of the PPC) 17 ; in others, they have to decide in a speedy administrative context, without any due process (art. 720 of the PPC). Regardless of the type of early release measure which the prisoner applies for and with the notable exception of release under constraint (see infra), which is decided for the most part without the prisoner s participation he or she must file a petition to the JAP or TAP and prepare a project with the help of the probation service, community agencies, third sector organisations, his attorney, and his relatives. The decision is then made in the context of a fair trial hearing and can be appealed. 14 On semi-freedom, placement in the community and EM, see Herzog-Evans M. (2012), The six month limit to community measures under prison registry : a study of professional perception, European Journal of Probation, vol. 4, n 2: See. Herzog-Evans M. (2015), Is the French Juge de l application des peines a Problem-Solving Court?, in Herzog-Evans M. (ed.), Offender Release and Supervision: The role of courts and the use of discretion, Nijmegen, Wolf Legal Publishers: Herzog-Evans M. (2014), French Re-entry Courts and Rehabilitation, op.cit 17 T.R. Tyler, Why People Obey the Law, New Haven, CT, Yale University Press, 2006, 2e éd.;t.r. Tyler, Legitimacy and Criminal Justice. International Pespectives, Russel, Sage Foundation, New York, 2007; T.R. Tyler, The virtues of self-regulation, in A. Crawford and A. Hucklesby (dir.), Legitimacy and compliance in criminal justice, London, Routledge, 2012: 8-28; V. De Mesmaecker, Perceptions of Criminal Justice, Abingdon, Routledge, 2014; A. Liebling, Why Fairness Matters in Criminal Justice, in N. Padfield (dir.), Who to Release? Parole, Fairness and Criminal Justice, Cullompton, Willan Publishing, 2007: 63-72; M. Herzog-Evans, Conclusion. What should the ideal release process look like?, in in M. Herzog-Evans (dir.), Offender release and supervision: The role of Courts and the use of discretion, Nijmegen, Wolf Legal Publishers, 2015:

159 JAP and TAP first rule on the basis of 18 : the quality of the prisoner s release plan. Courts typically focus on whether the person can support himself (employment, education ), will not be homeless, will submit to treatment whenever necessary (especially in matters of addiction or mental illness); Secondarily, integration efforts made during the person s incarceration; In some cases, on the basis of the analysis of how previous alternative sentences or early release measures were complied with. JAP and TAP naturally take the risk of reoffending into consideration, but they increasingly tend to consider that not early releasing the offender would constitute a risk as the person would not be prepared for release nor supervised 19. Moreover, taking into account JAP s strong desistance culture 20, focus on risk is essentially present with serious offenses, long sentences or violent offenses. It is important to note that when risk is assessed, it never is on the basis of evidence-based assessment tools. In France, prison disciplinary behaviour has borne very little weight in JAP s decision making since decisions have been made in the context of a fair trial (2000). However with the new release under constraint procedure (see infra) which is decided upon without a hearing or fair trial, within a prison commission presided over by the JAP, inevitably, prison behaviour has returned at the forefront of release factors 21. The first and oldest available measure is release on parole. France was the first European jurisdiction to create parole in For a long time, it was the only release measure available. Today, it is much less pronounced as it has gradually come in competition with other release measures. Several forms of parole currently exist under French law: Ordinary parole (art. 729 PPC) is available when the prisoner has served at least half of his sentence (before the Taubira Act two thirds for recidivists). However, the half point criterion is neither a fixed nor a clear cut one, as it takes into account not the pronounced sentence, but what is left to serve. The reminder of the sentence is regularly diminished by remission that is granted for good behaviour and resocialisation efforts (art. 721 & PPC). Thus, in actual fact prisoners can frequently apply for parole around the third point. Moreover, since the Prison act (2009), they can also apply one year before this thus diminished half point (or in practice close to third point) threshold, for a semi-freedom, EM or placement in the community measure, a measure which is then attached to parole and probationary to it (art and of the PPC). If the person serves this probationary measure without incident, parole then follows automatically. Such a system allows releasing offenders way before the half point threshold, the idea being to create a decompression chamber between full release under parole and imprisonment, since semi-freedom, EM or placement in the community are more constraining than parole. In some cases, particularly with long sentences pronounced for sexual of serious violent offences, such a probation measure is mandatory before the person can be fully released on parole (art PPC). Parental parole (art PPC) is available for offenders sentenced to up to four years or 18 See this author s quantitative study on JAP in Herzog-Evans M. (2014), loc.cit. 19 Herzog-Evans M. (2014), French Re-entry Courts and Rehabilitation, op.cit, spe; chapter Ibid. 21 Ongoing research supervised by M. Herzog-Evans, Le suivi post-sentenciel: limites et perspectives. La mise en oeuvre de la libération sous contrainte, Mission droit et justice (website : 159

160 who have a maximum of four years to serve and who can prove they are the parents of at least one child aged up to ten years, whom they exercise parental authority onto, and with whom they habitually reside (or would reside upon their release). In this case prisoners do not need to have served any part of their sentence as the essential criterion is the best interest of the child. As an exception, however, this measure does not apply to people who have committed offences against minors, and who are recidivists. It does apply, as of the Taubira Act to twelve week pregnant female prisoners. Seventy plus parole. This form of release without threshold condition allows releasing offenders aged more than seventy years who have some form of minimal release plan (e.g. residing in a retirement home) and do not pose a threat to public security (art. 729, last paragraph PPC). Long sentences parole. Release on parole of prisoners serving long sentences (of at least ten years) and who have committed sex offences or serious violent offences as defined by the PC, has been submitted to more stringent conditions by article of the PPC since the August 10, 2011 Act. They have to submit to a triple layer risk assessment procedure (psychiatrist expert; National Evaluation Centre; Regional Commission for Safety Measures); TAP have exclusive competence to decide on such matters; and these prisoners have to submit to a mandatory probationary period under semi-freedom, EM, or placement in the community for one to three years, unless they have been placed under GPS-EM. Semi-freedom, EM, or placement in the community, are called measures under prison registry 22 as the probationer is legally registered at a local prison facility and receives a prison serial number. These three measures are deemed fungible as they are interchangeable and one can always be converted into another by the JAP. These measures are also frequently granted in the course of article procedures. They can even but in practice this is extremely rare constitute sentences pronounced by the TC. They are exclusively accessible to persons who only have up to two years (left) to serve (with article , only one year if they are recidivists). Statistics for January, 1 st, Only 19.5% prisoners have benefited from early release with the following measures; 9,653 EM; 1,785 semi-freedom; 976 placement in the community; 7,980 parole. These figures are not very positive. They mean that most offenders actually max out, contrary to the provisions of article 707. The main obstacles to early release decisions are: 1) the fact that most sentences are far too short for probation services to have enough time to prepare a release plan with the offender and for the JAP to make a decision 24 ; 2) probation services are too overloaded to actively support prisoners reentry; 3) many offenders actually prefer to max out rather than being constrained upon their release. Nonetheless, 58,948 furlough decisions were made during the same period of time. 22 Herzog-Evans M. (2012), The six month limit to community measures «under prison registry»: A study of professional perception, European Journal of Probation, n 4(2) : Prison Services (2014), Les Chiffres clef de l administration pénitentiaire au 1er janvier The issue of short sentences is key. Even an ideal situation like Denmark, where collaborative programmes are in place does not seem to succeed better than France in this respect: A. Storgaard, «After prison you are free», in M. Herzog-Evans (dir.), Offender release and supervision: The role of Courts and the use of discretion, Nijmegen, Wolf Legal Publishers, 2015:

161 3 The procedure of release under constraint: The Taubira Act (2014) has instituted a new early release procedure 25 which can be granted by the JAP, in the context of a quasi-administrative procedure. It applies when the offender has served two thirds of his sentence (two thirds minus remission). The JAP sits in a commission, called the sentences implementation commission (commission de l application des peines, CAP), within the prison walls, and surrounded by prison and prison based probation staff, and the prosecutor. This is not a due process procedure: unless the JAP decides to summon the offender which in practice is extremely rare prisoners simply do not appear. Decisions are thus made solely based on the file; not on a trial. The information presented to the judge, who in this context has no control over the file content (contrary to regular fair trial release procedures) are thus extremely scares and essentially of a prisonised nature (behaviour, attitude) or merely informative (name, address, existence of a wife or partner ). In having this procedure enacted, the Ministry of justice hoped that a great number of people would be fast released. Its internal circulars 26 have tried and convince JAP to release people with no housing, no release plan, no benefits, no health coverage, and who have not made any resocialisation efforts whilst in prison. However, in practice this is not happening 27. Firstly, because prison, probation staff and prosecutors nearly systematically give a negative advice to the JAP; secondly, because JAP are reluctant to release offenders with such poor circumstances; thirdly, because these are the offenders who have not presented a release application via the ordinary fair trial procedure and who are either the most antisocial, or the less motivated, or the most isolated of all; fourthly because as was mentioned above, France is confusing placing a person in a legal measure release pipeline as opposed to actively preparing prisoners for release by working on their multiple needs and with release under constraint no active reentry support is provided. In this instance, probation officers act as legal clerks who prepare a case, rather than as social workers who prepare a person for release. Lastly, and fifthly, the vast majority of offenders do not give their consent for this early release procedure: they prefer to max out rather than being supervised upon their release. Such a failure was predictable as two previous legislative attempts at fast-tracking in a quasi-administrative way, early prison release (in 2004, and later in 2009) failed. The issue of short sentences reentry thus remains unsolved. 4 Management of sentence management JAP can further adapt sentences as they are executed by managing sentences management measures, that is to say by adapting community sentences and release measures as they are executed. They can first convert a measure under prison registry into another, and for instance EM into semi-freedom if the person needs a more constraining measure, or, conversely semi-freedom into EM if the person is doing well and complying. They can transform a measure under prison registry into parole around midterm as a recompense for the person s compliance and efforts. They can likewise grand furlough to offenders serving a measure under prison registry. For a probationer under EM this means than rather than being housebound over the week-end he can for instance help 25 Art. 720 PPC which entered into force on January 1 st, Circulaire CRIM-DAP-PJJ du 26 décembre 2014 présentation des dispositions d la loi n du 15 août 2014 relative à l individualisation des peines et renforçant l efficacité des sanctions pénales applicables au 1 er janvier 2014 et portant sur la libération sous contrainte, l examen obligatoire des peines d emprisonnement supérieures à 5 ans en vue de l octroi d une libération conditionnelle, la suppression de la procédure simplifiée d aménagement de peine et de la surveillance électronique de fin de peine ainsi que sur la suppression de certains régimes spécifiques applicables aux récidivistes, NOR : JUSD C. Note de cadrage de la Direction de l Administration Pénitentiaire sur la mesure de libération sous contrainte instituée par l article 39 de la loi n Ongoing research : M. Herzog-Evans, Le suivi post-sentenciel: limites et perspectives. La mise en oeuvre de la libération sous contrainte, Mission droit et justice, op. cit. 161

162 his wife with Saturday s shopping or attend his children s training sports activities, thereby releasing some of the traditional pressure onto family members that are often mentioned with EM. JAP can also grand remission in order to diminish the length of measures under prison registry, add or subtract obligations, modify curfew hours, etc. This is particularly frequent with long measures under prison registry, as practitioners consider that they cannot last for more than six months before they become too harsh on probationers POLITICAL AND SOCIAL CONTEXT 2.1 Prisoners socio-demographic profile France does not produce detailed statistics pertaining to the socio-demographics of its inmates or probationers. Each year, its prison services issue a ten pages general report which only provides one socio-demographic element pertaining to prisoners age. Thus on Jan. 1 st, 2013: 0.1% inmates were under the age of 16 (N 95); 0.8% (N634); 7% 18-21; 17.9% 21-25; 20.4% 30-40; 16.3% 40-50; 7.7% 50-60; 3.5% over For more information one can only rely on ad hoc reports or occasional studies. Such was the case in 2008 of a small report published by two prison services researchers which focused on sociodemographic characteristics of offenders serving their prison sentence under electronic monitoring. This five pages report 30 showed that women accounted for only 5% of offenders under EM; 7.5% were foreigners; 42.6% were married or lived with a partner; 46.4% had at least one child. It showed that their mean age was 34 and that nearly two thirds were employed. Another older study by the National Agency for Statistics (INSEE) 31 showed that more than half of male inmates were aged less than 30 and that, as in many jurisdictions, the peak of the incarceration rate was situated between However, it also reported that since the previous twenty years, prisoners had become older. Unsurprisingly, it revealed that the vast majority belonged to the lower classes of society with the lowest educational levels. One out of seven had never been employed and one out of two was or had been a labourer. More than half of them had at least four brothers or sisters and one out of twenty belonged to a family with more than ten children. The study showed that there were twice as more foreign prisoners than foreigners in the general population. Less than half of them were in a cohabiting relationship. However, they had a similar number of children than the general population at the same age Political arguments to implement and design alternatives to imprisonment In France, criminal justice issues are systematically politically polarised. However, in the recent years the traditional punitive versus lenient opposition between both sides of the political spectrum has become rather blurry. For instance, whilst N. Sarkozy has built much of his political career on tough on crime discourses and policies, he nonetheless had a Prison Act passed in 2009 which tried to fast release as many prisoners as possible a law that failed as it did not address the root causes of overcrowding, nor dealt with France s lack of re-entry programmes and practices (see supra). Likewise The Taubira Act (2014) by the current left government is an odd mix of punitive and lenient discourse which both tries and create yet another fast release system ( release 28 Herzog-Evans M. (2012), The six month limit to community measures «under prison registry»: A study of professional perception, European Journal of Probation, n 4(2) : Administration Pénitentiaire, Les chiffres clefs au 1er janv. 2013, A. Kensey & M. Narcy, «Les caractéristiques socio-démographiques des personnes sous PSE ( ), Cahiers d études pénitentiaires et criminologiques, Feb 2008, n F. Cassan & L. Toulemon, L histoire familiale des hommes détenus, INSEE Première, April 2000, n

163 under constraint ) which is equally failing for the same reasons and has created the aforementioned new probation sentence presented as tougher than previous ones (: penal constraint, a telling terminology). In other words, the narrative of recent reforms has become rather similar both sides of the political spectrum 32 : governments want to appear sufficiently punitive whilst developing alternative sentences and speedy unconditional release measures with two identical goals: first, in financially dire times, to cut expenses; second, to avoid committing human rights violations as a result of overcrowding Focus on victims There is an extreme paucity of French research on victims and sentences or their implementation, as this is an extremely polarised and therefore contentious subject. However, as in many Western jurisdictions, victims associations and networks have campaigned and obtained a few rights at the sentencing and sentences implementation phase. At the sentencing phase, France mainly allows victims presenting their damages claim and swiftly describing how the offence was committed. The law does not organise a victim impact statement. In many cases the trial is too speedy, or a bis procedure has been used, for the victim to actually be present 33. Regarding the sentences implementation phase 34 a law passed in 2000 (June 15) has ensured that whenever damages were to be paid, early release measures and remission were inter alia subjected to the offender actually paying them (generally by instalment). Restraining obligations have also recently been inserted in the legal system; they can be attached to community sentences and measures (Penal Code, art , 13 and 19 ). Moreover, victims can now be asked to provide a written (in certain cases by phone) statement whereby they express their opinion on the early release of the offender (PPC, art ). Victims are however still not considered as being a party to release trials 35 and cannot appraise the juge de l application des peines of any claim, nor can they appear in court. Only with parole cases pertaining to sentences exceeding five years, can their attorney represent them in court (PPC, art. 730, sec. 4). 3. CROSS CUTTING ISSUES 3.1. Cost-benefit analysis To date no cost-benefit analysis has ever been produced in France. This is to be correlated to the aforementioned reluctance to evaluate practices and legislations. However, the Accountancy Court (Cour des Comptes) has focused three times (2006, 2010, 2014) on prisons and overcrowding and advocated the development of alternative sentences and measures. The Cour des Comptes is hugely influential and its reports are typically widely commented in the press. As is frequently the case with many domains it investigates, the Cour des Comptes has fustigated the terrible mismanagement of finances and the inability to correctly execute prisons core missions i.e. guarding inmates and preparing their reinsertion (2006). It also commented each time on the lack of methodologically convincing evaluation of prison management and its outcome, and the lack of comparison between the private and the public sector. It has also focused on overcrowding (2010). In 2014 it focused on prisoners health, and even though it praised the fact that since 1994, health 32 For a more detailed account of these narrative Herzog-Evans M., France: legal architecture, political posturing, prisonbation and adieu social work, in G. Robinson et F. McNeill (eds.), Community Punishment: European Perspectives, Abingdon, Routledge, forthcoming in On all these subjects read: R. Cario, Victimologie. De l infraction du lien subjectif à la restauration sociale, Paris, l Harmattan, Herzog-Evans M. (2008), Les victimes et l exécution des peines. En finir avec le déni et l idéologie, AJpénal Court of Cassation, Criminal Chamber, March 15, 2006, n

164 agencies had been put in charge, it regretted that in reality prisoners health needs were far from being met. At the moment this report was translated, the Cour des Comptes is investigating how sentences are implemented and is notably focusing on the lack of evidence-based practices in probation (personal phone conversation with The Cour des Comptes Rapporteur (4 th Chamber), Ms Tsiporah Fried, January 2015 and personal on May 19, 2015) Focus on psychiatric prisoners Mentally ill inmates have very rarely been the focus of public reports and official data. In 2003, a joint report by the Ministry of Health and the Ministry of Justice was published 36, which unsurprisingly pointed towards inmates considerable higher psychiatric morbidity compared with the general population: 55% of inmates who entered prison suffered from anxiety and 33% of depression; 42% had behavioural problems; 24% had intelligence impairments; and 19% had a psychosis diagnosis. The report pointed to the difficult collaboration and the lack of communication between prison staff and medical staff and complained about what they perceived as being the prison services attempts to infringe on medical secrecy. Reasons for the mental illness high prevalence lie in the very limited use of article section 1 of the PC ( not guilty for reason of insanity ) itself due a double phenomenon: on the one hand, the impact of the antipsychiatry movement particularly since the 1970s, which led to the en masse closing of asylums; on the other hand, the conviction amongst the majority of French psychiatrists that people with such diagnosis who offend need to be punished by the CJS. The result is that the vast majority of such offenders are now housed in prison. In order to tackle these difficulties, policies inaugurated during Nicolas Sarkozy s government have consisted in creating special prison units within psychiatric hospitals, and in doubling the number of Units for Difficult Patients (Units pour Malades Difficiles), in other words psychiatric units for very dangerous offenders with a mental health diagnosis Focus on drug addicts France produces slightly more studies on addicted offenders. The Drugs and Addictions French Observatory (Observatoire Français des Drogues et de la Toxicomanie) has devoted a handful of its studies on prisons. In 2005, a report showed that detection was still not systematic. However, it declared that the treatment of addicts in prison had remarkably improved 37. Conversely, a more recent report by the National Medicine Research Centre 38 sadly concluded: today there is no risk reduction policy in France. It added that the principle of the equivalence of treatment access between prisons and the outside world was simply not implemented. Nonetheless, the OFDT also published a report in 2008 pertaining to the initialisation of methadone treatment at the point of entrance in prison 39, which revealed an important increase in the prescription of methadone following a 2002 Ministerial Circular (DGS/DHOS n 2002/57, Jan 30, 2002), but also a much more important prescription of buprenorphine. Any offender with an addiction diagnosis who serves a community sentence or (release) measure will generally be subjected to mandatory treatment (art , 3 of the PC). However, there is no 36 Ministère de la Santé, Ministère de la Justice, Santé mentale des personnes détenues ert troubles du comportement, April OFDT, Tendances, Jan. 2005, n INSERM, Réduction des risques infectieux chez les usagers de drogue, I. Ibranovic & T. Canarelli, Initialisation de traitements par methadone en milieu hospitalier et en milieu pénitentiaire, Evaluation des Politiques Publiques, OFDT, Feb

165 systematic screening of all these probationers and parolees and judges generally order mandatory treatment solely based on the nature of the offence. Moreover, France rarely tests whether they are still taking drugs or abusing alcohol during their probation order Foreigners French studies on foreign prisoners are exceptionally rare. A European study by Delgrande and Aebi 40 compared 27 European countries and found that France (with 19.8% of foreign prisoners) was situated mid-way between two extremes (Romania with less than 10% of foreign prisoners and Luxemburg with more than 75%). An older study by Tournier published at a time where the political debate focused on foreign delinquents 41 showed that prisoners systematically feared worse at each stage of the criminal justice process. Over a decade later, the National Council on Human Rights published a report on foreign prisoners 42 and commented that they now were largely ignored in the public debate and by prison research (p. 1). As most agencies or institutions focusing on the CJS in France, they deplored the total lack of official data on this subject. From the legal viewpoint, foreign inmates are not treated differently than French citizens so long as they are not to be deported. However, this autistic apparent equality very likely masks actual inequalities, for instance in terms of access to rights and treatment, education and early release. It is telling that France has completely ignored the Council of Europe s recommendation on foreign prisoners (2012) whilst it has long used the European Prison Rules (2006) and is currently using the European Probation Rules (2010) as communication tools. Offenders sentenced to a French territory prohibition (interdiction du territoire) or who have no legal right to remain in France are typically placed under a parole plus expulsion scheme (art PPC), although, in practice this measure is not easy to implement. It is noteworthy that France has still not implemented the UE Framework decision 2008/947/JAI which would allow for EU foreign probationers to be supervised in their country of origin. Interestingly, in 2003, a Sarkozy Law was passed whereby foreign offenders serving a probation order (the vast majority of community sentences) or paroled who had also been sentenced to territory prohibition could be allowed by the juge de l application des peines to remain in France to serve their sentence or measure. If this sentence or measure is served without breach or other violation, territory prohibition then becomes null and void and they can remain in France. 40 N. Delagrande & M.F.Aebi, Les détenus étrangers en Europe: Quelques considérations critiques sur les données disponibles de 1989 à 2006, Déviance & Société, 2009, n 4 : P. Tournier, Etrangers et délinquances les chiffres du débat, Paris, l Harmattan, Commission Nationale des Droits de l Homme, Etude sur les étrangers détenus,

166 The legal framework of alternatives to imprisonment in Scotland 1.1 The scope of the report United Kingdom (UK) consists of 4 diff erent countries - England, Wales, Scotland and Northern Ireland. The criminal justice systems are diff erent across UK countries (with the exception of England and Wales who have the same system) and, given the scope and the limits of this report, the main focus will be on a national level - the Scottish Criminal Justice system. A brief overview of the criminal justice systems of England and Wales, and Northern Ireland are provided in the next two sections. 1.2 Criminal justice system in England and Wales: brief overview The criminal justice system in England and Wales is made up of the following institutions [1]: The Law Officers (Attorney General, the chief legal adviser to the government, manages the main prosecuting authorities in England and Wales - CPS and SFO - see below) The Ministry of Justice (Has responsibilities to several parts of the system which encompasses criminal, civil and family justice, democracy, rights and the constitution.) The Home Office (The main governmental department dealing with immigration and passports, drugs policy, crime, counter-terrorism and police.) The Serious Fraud Office (SFO) (Is in charge of prosecuting serious/complex fraud, corruption.) The Police The Crown Prosecution Service (CPS) (The principal public prosecution authority) The Courts (Provide administration of the civil, family and criminal courts) The National Off ender Management Service (provides correctional services via Her Majesty s CPSI and Probation Service) Her Majesty s Crown Prosecution Service Inspectorate (HMCPSI) (An independent organisation that inspects and reports on the operations of CPS) The Courts in England and Wales There are three courts in England and Wales that deal with criminal cases - the Magistrate s Court, Crown Court and High court. There are also two instances of appeals courts - Court of Appeal and UK Supreme Court [2]: Magistrates Court All criminal cases start in the Magistrates Court, but it deals mostly with the less serious criminal cases (i.e., summary cases) [3]. Almost all of the criminal cases are tried and completed (about 90% [4]) in the Magistrate s Courts and are heard by 2 or 166

167 3 magistrates 1 or a district judge [3]. For more serious crimes, like rape or murder, the Magistrates Court passes the cases on to the Crown Court. The Magistrates Court can impose fines (up to 5,000) [3], community sentence, probation orders or a custodial sentence of up to 6 months (for multiple off ences - a maximum of 12 months) [4]. The Crown Court The Crown Court deals with serious criminal cases that are passed on by the Magistrates Court. For all indictable off ences and some of the either-way criminal off ences a jury trial is held. The Crown Court also deals with the appeals against conviction sentences issued by the Magistrates Court [2]. High Court The High Court deals with appeals from other courts as well as with first instance cases [2]. It is divided into three diff erent divisions - Chancery, Queen s Bench and Family division [5]. The Appeal Court (appeal only on points of law) UK Supreme Court (appeal only cases on points of law) The criminal process in England and Wales Figure 1 on page 6 illustrates the criminal process in England and Wales. 1 Trained volunteers of the local community working part-time [4]. 167

168 Figure 1: A diagram showing the path an off ender can take through the criminal justice system in England and Wales. Source: [6]. 168

169 1.3 Criminal justice system in Northern Ireland: brief overview The criminal justice system in Northern Ireland is made up of the main following institutions [7]: Police Service of Northern Ireland Public Prosecution Service Northern Ireland Courts and Tribunals Service Northern Ireland Prison Service Probation Board for Northern Ireland The Youth Justice Agency The courts that deal with criminal cases in Northern Ireland are [8] [9]: Coroners Courts (investigate unexplained deaths) Magistrates Courts (less serious criminal cases and those involving juveniles, family and civil matters) The Crown Court (all serious criminal cases) The Court of Appeal (appeals on points of law in criminal and civil cases) UK Supreme Court (appeals on points of law in cases of major public importance) The following are the types of sentences that can be issued within the criminal justice system of Northern Ireland [10]: Discharge Monetary (e.g., fines, compensation and confiscation orders) Imprisonment Community sentence (e.g., probation orders, community service orders, supervision orders and attendance centre orders) The criminal process in Northern Ireland The Public Prosecution Service (PPS) decides whether to prosecute a case based on the evidence gathered by the police. The criminal cases can be tried under the summary procedure (less serious cases) and they are heard in the Magistrates Court. The more serious criminal cases (e.g., rape and murder) are tried by a judge and a jury 2 in the Crown Court on indictment. Off ences that can be tried either way, that is, either summarily or on indictment, are usually tried summarily unless the district judge deems or the defendant asks that the case should be tried in the Crown Court [11]. 2 The jury is made of 12 members of public who are randomly selected from the Electoral Register. The jury is independent and its task is to decide the questions of fact. The verdict options the jury can reach are either guilty or not guilty. 169

170 1.4 Criminal justice system in Scotland The criminal justice system in Scotland is made up of the following institutions and bodies [12]: The Police Crown Office and Procurator Fiscal Service (COPFS) Scottish Court Service Judiciary Scottish Prison Service Parole Board Criminal Justice Social Work (CJSW) Defence Solicitors Criminal procedure and the court system in Scotland The criminal procedure that determines the process of investigation and prosecution of criminal off ences is regulated by the Criminal Procedure (Scotland) Act 1995 [13]. In the Scottish criminal justice system, off ences are tried under two procedures - solemn and summary. Solemn procedure involves the most serious of crimes (e.g., rape, murder) and is dealt within the High Court (before a judge and a jury 3 ) or the Sheriff s Court (before a judge and a jury). Summary cases are dealt within the Sheriff s court (only judge) or in the Justice of Peace Courts. The majority of criminal off ences are tried under summary procedure (94%) 4 with the solemn cases being less frequent (6%) [14]. Crown Office and Procurator Fiscal Service (COPFS) is the only public 5 prosecution authority in Scotland. The COPFS decides if the crime is to be prosecuted or not. Figure 2 on page 9 provides an overview of the criminal justice process in Scotland. Scotland has three-tier court system consisting, in the hierarchical order, of the High Court, the Sheriff Court and the Justice of Peace Courts. The High Court The High Court is Scotland s supreme criminal court and it deals with the most serious crimes such as murder, rape (and other serious sexual off ences), culpable homicide and armed robbery. Cases are presided over by a single judge and a jury. 3 The jury in the Scottish criminal justice system consists of 15 men and women. 4 The statistical data on the frequency of solemn and summary procedures are based on years Although it is possible for a prosecution to be brought by an individual (private prosecution), virtually all cases in Scotland are prosecuted by COPFS (as private prosecutions are extremely rare) [15]. 170

171 Figure 2: Criminal justice system pathways in Scotland. Source: [16]. 171

172 The Sheriff Courts The cases tried in the Sheriff Courts can be both under solemn and summary procedure. Solemn cases are presided over by a sheriff and tried by a jury. A custodial sentences of up to five years can be imposed under solemn procedure. Summary cases are decided by a sheriff who also presides over the trial and the sentencing. The maximum custodial sentence for a summary case that can be imposed is up to one year; the maximum fine that can be issued is 10,000. The Justice of Peace Courts At the Justice of the Peace Courts less serious criminal cases (such as driving off ences, less serious assault, breach of the peace, theft) are heard. Lay magistrates sit with a legally qualified adviser in the Justices of the Peace Courts. They sit alone or on a bench of three and can impose a custodial sentence of up to 60 days and a fine of up to 2,500 (or both); for driving off ences they can also disqualify drivers on a discretionary basis. 1.5 Pre-trial alternatives to imprisonment in Scotland Bail The only alternative to pre-trial detention (i.e., remand 6 ) in Scotland is bail. The court decides whether the accused person is granted bail and it has to provide reasons for either granting or refusing bail [17]. The Scottish Criminal Law operates under the presumption in favour of bail, which means that any person accused of crime should be given bail unless any of the following is true [17]: 1. They are being tried under solemn proceedings for a crime involving personal violence or sexual off ence and they have been previously convicted on indictment with a violent or sexual off ence; 2. They are being tried for a drug trafficking off ence and have a previous conviction on indictment for drug trafficking off ence; 3. There is a good reason to refuse bail in the public interest (including interests of public safety). The grounds for refusing bail are when there is a substantial risk that the accused, if granted bail, will do any of the following [17]: Abscond or fail to appear at any diet 7 ; Commit a further off ence; Interfere with witnesses or obstruct the course of justice; 6 The term remand refers to a person being held in custody (police cell or prison) before appearance at court. 7 Term diet in the Scottish Court system refers to a stage the case goes through. For example, trial diet refers to the stage when evidence is heard [16]. 172

173 Or if there is any other substantial factor that appears to justify the refusal of bail to the court. The substantial risk is assessed taking into account all the material considerations, including the accused person s associations and community ties, which include [17]: 1. The nature and level of seriousness of the off ences and the probable disposal of the case if convicted; 2. Whether the off ence was made while on bail, under any other court order, or was on licence or parole or deferred sentence; 3. The nature of previous convictions, previous breaches of bail or any other court order or terms of any release on licence or parole and whether the person is either currently serving or has recently served imprisonment sentence for any matter that is related to the current matters. Bail in the form of money is also at court s disposal, however, the legislation s intention is to make this form of bail very exceptional [17]. Conditions of bail When granting bail, the court, or the Lord Advocate 8, is obliged to impose the standard conditions and any other additional conditions that are deemed to be necessary in order to secure the observance of the standard conditions [17]. The standard conditions are that the accused [17]: (a) Appears at every diet (stage of case) as is required; (b) does not commit an off ence while on bail; (c) does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to him-/herself or any other person; (ca) does not behave in a manner which causes, or is likely to cause, alarm or distress to witnesses; (d) makes him-/herself available for the purposes of enabling enquiries or a report to be made to assist the court in dealing with him/her for the off ence with which he/she is charged; (e) For sexual off ences, precognition 9 of or statement by the complainer in relation to the subject matter of the off ence can be sought only by a way of solicitor. For sexual off ences an additional standard condition is applied [17]: f) precognition of or statement in relation to the off ence by the alleged victim can be only sought by a way of solicitor. 8 The Lord Advocate is head of the criminal prosecution system and investigation of deaths in Scotland. 9 Precognition in the Scottish legal system refers to a face-to-face interview of a witness for the purposes of giving evidence at an upcoming criminal (not only) trial [18]. 173

174 The court can include any other conditions that are considered necessary to achieve the statutory purposes (e.g., surrender of a passport, living, or not living, at a particular address). Once the bail is issued, the accused receives a copy of the document which spells out the conditions that are imposed and notes that breaching any of the conditions is making the accused liable to be subjected to arrest, prosecution or punishment [17]. 1.6 Post-trial alternatives to imprisonment in Scotland There are five alternatives 10 to imprisonment in the post-trial phase in Scotland - Community Payback Order (CPO), Restriction of Liberty Order (RLO), Drug Treatment and Testing Order (DTTO), Home Detention Curfew (HDC) and release on parole. The last two alternatives - HDC and parole - are applied to an off ender who has already served a part of his/her sentence in prison. Figure 3 on page 19 provides a visual overview of the post-trial sentence options and pathways in the Scottish criminal justice system Community Payback Order (CPO) Community Payback Order (CPO) was introduced in 2011 with legal eff ect starting on February 1 st, CPO replaced three types of extant community sentences - Community Service Order, Probation Order and Supervised Attendance Order. The CPO is a community sentence that can be imposed by the judge and consists of one or several requirements that are set depending on the nature of the crime committed and the issues that underly the off ending behaviour. CPO requirements CPO is a court order that sets out any of the following requirements (1 or more) for the sentenced person as an alternative to custody [17]: a supervision requirement (a requirement that the off ender attends appointments with the specified responsible officer 11 or another person indicated by the officer for a time period between six months and three years; the appointments are meant to promote the rehabilitation of the off ender); a compensation requirement (of paying a compensation for personal injury, damage or loss, or for any other matter, to a person in whose favour a compensation order can be made); a work requirement (unpaid work or unpaid work and any other activity determined by the responsible officer for a specified number of hours between a minimum of 20 and a maximum of 300 hours. The work requirement needs to be completed within three months if the 10 The court may also impose a money fine as an alternative to imprisonment. 11 Upon imposing CPO, the court must specify the locality where the off ender is to reside during the duration of the CPO and, at the same time, require the specified local authority to nominate one of its officers as the responsible officer. The responsible officer s task is to make arrangements for the off ender to comply with the requirements of the CPO and to take any steps that are necessary to vary, revoke or discharge the order. The court also must require of the off ender to observe the responsible officer s instructions, report to the officer in the manner specified by the officer and notify the officer of any changes of address or times when off ender is working or attending an education establishment. 174

175 requirement is no more than 100 hours (level 1 requirement) or six months if it is more than 100 hours (level 2 requirement), or in the time period the court may specify); a programme requirement (participation for a specified number of days at a specified place on a course or a set of activities that are aimed at addressing off ending behaviours that have been recommended by a local authority officer as suitable for the off ender); a residence requirement (for the accused to reside in specified place for a specified period of time); a mental health treatment requirement (if the court receives satisfactory written or oral evidence from either a registered medical practitioner or a registered psychologist, or both, that the accused suff ers from mental health condition that is susceptible to treatment); a drug treatment requirement (This requirement can be imposed if the off ender is dependent on or has a propensity to misuse the substance. The treatment is meant to reduce or eliminate the dependency on the substance); an alcohol requirement (the same as drug treatment requirement ); a conduct requirement (off ender is required to do or refrain from doing specified things during a specified period of time which is not longer than three years; this requirement is meant to promote good behaviour or prevent further off ending). CPO provisions The CPO can be currently imposed under 4 diff erent provisions [17]: 1. As an alternative to an imprisonment sentence. 2. As an alternative to an off ence punishable with a fine (which also may or may not be punishable with imprisonment) in the case when court decides not to issue a prison sentence or CPO (as in the provision 1). In this case, instead of, or in addition to, issuing a fine, a CPO can be imposed, but may only contain one or more of the following requirements: an off ender supervision requirement, a level 1 work requirement, a conduct requirement. 3. It can be issued by a drugs court 12 for breach of a drug treatment and testing order. 4. For default of payment of a fine (a special kind of community payback order). CPO can be imposed by the so called appropriate court which has the power to deal with the variations, revocations, discharges and breaches of the CPOs. It can be the High Court, The Sheriff s Court or Justices of Peace Court. For the latter two courts, the ones in power will be the ones that issued the CPO, however, if the off ender lives in the area diff erent to the court issuing the CPO, the court of the off ender s residence will be in power of administering the CPO. 12 A drugs court is a court that has been given the power to issue drug treatment orders for off enders who might be in need of them. 175

176 Sentencing considerations In deciding what sentence to pass, the court must take into account the off ender s personal circumstances, criminal record (or lack of it) and the circumstances of the off ence. General guidelines in the Scottish criminal system are that, for a first off ence of the kind, a maximum sentence is not suitable even if the off ender has been convicted for other type of off ences in the past [17]. The court is statutorily obliged to consider [17]: 1. Age (if under 21). 2. The absence of any previous custodial sentence served by the off ender. 3. The presumption against short sentences. 4. Any guidelines by the High Court. 5. Time spent in custody in the pre-trial phase. 6. A plea of guilty. 7. Statutory minimum sentence. 8. Racial aggravation. 9. Aggravation by religious prejudice. 10. Aggravation by disability or sexual prejudice. 11. Aggravation by terrorist connections. 12. Aggravation by connection with serious organised crime. 13. Anti-social behaviour orders. 14. Victim statements. 15. Assistance to prosecution. 16. Health and safety. 17. Child pornography. 18. Voluntary intoxication. 19. Historic cases. The sentencing decision is strongly a matter of the individual judge and the circumstances of the case and any mitigatory evidence, the jury does not have a say in deciding the sentence to be imposed. 176

177 Breaching CPO If the court concludes that the off ender has failed to comply with the requirements of the CPO without a reasonable excuse, the court may [17]: vary the CPO by imposing a new requirement (including a restricted movement requirement (see below); vary, revoke or discharge an already existing requirement of the CPO; revoke the order and deal with the off ender as if the CPO was not issued (if the CPO was issued as an alternative to imprisonment); revoke the order and impose imprisonment of not more than 3 months in Sheriff s court or 60 days in Justice of Peace court (if the off ence was not punishable by imprisonment or the court decided not to impose imprisonment in favor of CPO) impose a fine (in any case). Restricted movement requirement restricts off ender s movements by requiring the off ender to be, or not to be, in a specified place at a specified time (or time periods). This requirement should be at least for 14 days but not more than 12 months [17]. If the off ender is in the breach of the drug treatment requirement, the drugs court can impose a custodial sentence that does not exceed 28 days [17]. In any case of breach the court may impose a fine not exceeding level 3 on the standard scale, whether or not it also varies the order. Progress Reviews When imposing a CPO, the court may also impose an order of progress reviews administered in a way specified by the court itself or by a specified appropriate court. The off ender is obliged to be present at all reviews and the progress reports are prepared by the responsible officer [17]. Examples of CPO Unpaid work that can be carried out by off enders as part of CPO across Scotland can include [19]: Clearing snow or ice from pathways and gritting; Building eco-plant areas for schools; Improving community facilities; Cleaning beaches; Growing vegetables and distributing the produce to care homes and local charities. Landscaping Removing graffiti 177

178 1.6.2 Restriction of Liberty Orders (RLO) Another alternative to imprisonment is restriction of liberty orders (i.e., tagging ). This order can be imposed as an alternative to custodial sentence for any person that has been convicted of any off ence (other than murder) that is punishable by imprisonment [17]. Under this order, the court is entitled to restrict off ender s movements for a maximum of 12 months to the extent it deems necessary; this order can also include the following additional requirements [17]: a) to be in a specified place for a specified period/periods of time in each day/week; and/or b) not to be in a specified place/places, or such class/classes place, at a specified time period/periods. There is one limitation to a). Whether on its own or in conjunction with restricted movement requirement or any other restriction of liberty order, a) may not require of the off ender to be, or not to be, in any place or places for more than 12 hours per day [17]. The restriction of liberty orders can be issued only in courts that have been prescribed for that purpose by the Scottish Ministers who also prescribed the classes of persons to whom the liberty restriction orders can be issued. The methods of monitoring are also prescribed by the Scottish Ministers and the monitoring method specified for an off ender is chosen by the court which may not impose a restriction of liberty order if it deems that the monitoring method is sufficient for tracking the compliance with the order [17] Drug Treatment and Testing Orders (DTTO) The Drug Treatment and Testing Order (DTTO) can be imposed on its own or in conjunction with a CPO. DTTO can be imposed only by a specifically nominated drugs court which is prescribed, under request by the Scottish Ministers, by the sheriff principal of a specified sheriff dom or a district thereof [17]. DTTO can be imposed on any person who is 16 or older and is convicted of any off ence except murder if the court deems that DTTO is more appropriate than sentencing. The order can be imposed only if the court believes that the off ender is dependent on, or has a tendency to misuse drugs, to the extent that requires treatment, is likely to be susceptible to treatment and is a suitable person to be subjected to DTTO. In order to verify the aforementioned criteria, it is in the power of the court to request samples indicating the presence/absence of drugs in the off ender s body [17]. The length of DTTO must be between 6 months and 3 years and must include: treatment requirement (which specifies a sufficiently qualified and experienced person under whose supervision and monitoring the off ender will undergo the treatment); testing requirement (which requires the off ender to provide regular samples of drug presence/ absence). DTTO also requires a nomination of a supervising officer from the local authority with whom the off ender will have to keep in touch, provide samples, notify of any change of address - all to the extent is necessary in order for the supervising officer to provide off ender s progress reports to the court [17]. 178

179 1.6.4 Home Detention Curfew (HDC) As of July 3rd, 2006, certain off enders who are on short term sentences and who are deemed at low risk of reoff ending can be released from prison on licence anywhere between 2 weeks and 4 months early. The off enders released under HDC are subject to movement restrictions for up to 12 hours a day until the end of their sentence and the movements are monitored using an electronic equipment (tag). The aim of HDC is to facilitate the reintegration process of the off enders into the community. All eligible prisoners undergo risk assessment process by the Scottish Prison Service (SPS) [20]. During the assessment of releasing the off ender under HDC, consideration must be given to [20]: the protection of the public at large; the prevention of reoff ending; ensuring successful reintegration of the prisoner into the community. The following standard conditions must be included in the HDC [20]: be of good behaviour and keep the peace; not commit any off ence; not tamper with or intentionally damage the electronic monitoring (i.e., tagging ) equipment or device(s) or knowingly allow these to be tampered with or intentionally damaged; allow the electronic monitoring (i.e., tagging ) service provider access to install the electronic monitoring equipment at a specified address. Off enders who are excluded from HDC [21] are those who: are required to register as sex off enders; are subject to an Extended Sentence; are subject to a Supervised Release Order; are subject to a Hospital Direction (including Transfer for Treatment); are awaiting deportation; have previously been recalled to prison after having been released on licence Release on parole Prisoners can be released from prison before the end of their sentence (on parole) and decisions on parole are made by a special committee - the Parole Board for Scotland (the Board). The Board is a Tribunal Non-departmental Public Body the members of which are appointed by the Scottish Ministers [22]. The Board takes into account the crime, the off ender s behaviour in prison, the potential risk of reoff ending and their potential to reintegrate into the community. The Board 179

180 also decides what conditions ( licence 13 ) the off ender must agree to abide by until the end of their sentence [23]. Off enders who are on short-term sentences (less than 4 years) automatically get released at 1/2 point of their sentences without the consideration of the Board. Off enders who are on long-term sentences (more than 4 years) are entitled by law for parole consideration when they have served half of their sentence. If parole is not granted at the first opportunity, it will be re-considered at 12-month intervals until the off ender has spent 2/3 of the sentence in custody. At that point, the off ender is released on licence into the community until the end of the sentence end date [24]. Off enders sentenced for life have a minimum time period ( the punishment part of the sentence) they must spend in prison. Once the punishment part has expired, a Tribunal of the Board will review the case as soon as possible. If the off ender is not granted release at the first review, the law requires a subsequent review within 2 years - any further reviews are set by the tribunal [24]. Off enders who are on an extended sentence 14 get two types of parole [24]: 1. Released on licence only (short-term off enders whose extended part of the sentence, in combination with the custodial part, exceed 4 years); 2. Released on parole the same way as determinate long-term off enders (i.e., off enders whose custodial part exceeds 4 years). Figure 3 on page 19 provides a visual overview of the post-trial sentence options and pathways in the Scottish criminal justice system. 1.7 Reference to EU Law In the Scottish Criminal procedure no explicit references to European Law or other international/ supranational norms are made in relation to using alternatives to imprisonment per se. The Scottish criminal procedure refers to the European Law in the context of the conditions under which criminal cases should be referred to the national (UK Supreme Court) or European Court as part of the Treaties United Kingdom entered by the European Communities Act 1972 [17]. 13 Licence is a legal document that permits an off ender to be in the community outside prison and is produced on behalf of the Scottish Ministers. It specifies the conditions off ender has to abide by. 14 Extended sentence (introduced in 1998) allows judge to impose post-release supervision in addition to a custodial sentence which is usually applied to sex off enders (with any length of custodial sentence) or violent off enders (with 4 or more years of custodial sentence) [23]. 180

181 Figure 3: Sentencing options and pathways an off ender can take in the Scottish criminal justice system. Source: [12]. 181