CEP EXPERT MEETING SEPT. 2019 IOAN DURNESCU UNIVERSITY OF BUCHAREST
AIM To briefly present the training e-manual To generate some discussions around following questions: What is the general impression on the e-manual? Is there something missing? How can it be improved?
TRAINING E-MANUAL – GENERAL ASPECTS Aims at facilitating the training for competent authorities and probation staff on implementing FD 947 and 829 Based on the literature review and training gap analysis Colective product
TRAINING E-MANUAL – CONTENT
TRAINING E-MANUAL – INTRODUCTION AND CONTEXT What are the problems that the FDs are trying to solve – huge percenteges of foreign prisoners in the European prisons, lack of alternatives to pretrial, fear of not turning up etc. CJ Framework Decisions – 584, 909, 947 and 829 DG Justice projects – ISTEP, STEPS2 RESETLEMENT etc. PONT – provide training for at least 60 competent authorities and POs from 12 jurisdictions – and NETWORK !!!
ABOUT THE MUTUAL RECOGNITION Old concept – 1979 – case of Cassis de Dijon – free movement of goods and services In police an judiciar cooperation – introduced in Amsterdam Treaty and later in the LisbonTreaty: ‘ judicial co-operation in criminal matters in the Union shall be based on the principle of mutual recognition of judgements and judicial decisions and shall include approximation of the laws and regulations of the Member States … ’ Main tool – framework decisions - free circulation of the judicial decisions outside the MS in which they were adopted Mandatory for all MS in terms of result not method They need to be transposed Replaced by LisboneTreaty with directives (since 2010) – clear mechanism of enforcement – infringement procedure
THE FD DESCRIPTON As Q & A For each FD
COMPARATIVE OVERVIEW FD 947/2008 FD 829/2009 on alternative to detention and probation decision on alternatives to provisional detention Precursors CoE Convention on the Supervision of Conditionally - Sentenced or Conditionally Released Prisoners – 1964 (1975) – only 19 of 47 Aim and purpose Enhance social rehabilitation by: Protection of the victim and the general - preserving family, social, linguistic ties, public. - improving monitoring of compliance Supervision of the people while awaiting - prevent recidivism trial – ensure the due course of justice. - protect the victim and the public Enhancing the right to liberty and the presumption of innocence. Use of non-custodial measures for pre- trial. Equal treatment for non-residents
COMPARATIVE OVERVIEW FD 947/2008 FD 829/2009 on alternative to detention and probation decision on alternatives to provisional detention Where? To the MS where the person is lawfully and ordinarily To the MS where the person lawfully and ordinarily reside – residing – if they returned or want to return informed and consents Another MS – upon request and consent of the MS Other MS but only with consent of that MS. Characteristics The system of competent authorities The system of competent authorities Eleven types of probation measures – added more if … Recourse of the central authority Six supervision measures (obligatory – report, not to enter, remain in places etc.) Five other measures (may be prepared – treatment, money etc.) Procedure Certificate and the sentence Certificate + Decision on the supervision measures. EJN - http://www.ejn- Specify: length of time, renewal and the provisional length of crimjust.europa.eu/ejn/EJN_Home.aspx time needed EJN Adaptation – nature and duration ES – 20 days for decision + possible another 20 days – inform ES – 60 days to decide Adaptation – the nature in line with the national legislation for Double criminality – 32 equivalent offence Double criminality - 32
COMPARATIVE OVERVIEW FD 947/2008 FD 829/2009 on alternative to detention and on alternatives to provisional probation decision detention Grounds for non-recognition Certificate incomplete Certificate incomplete Not wiling to return Measures not obligatory Other measures than the 11 Ne bis in idem Less than 6 months until the end etc. Immunity In case of breach would not apply the EAW – but consultation etc. Law governing supervision ES takes all subsequent decision ES except alternative sentence if custody In case of continuation – IS may is not an option in case of breach. request to extend the monitoring by the ES. Transfer jurisdiction back ES decides according to its own national law. All subsequent decision taken by the IS – renewal, modification, arrest warrant ES may adapt or refuse 6 th of December 2011 Deadline of implementation 1 December 2012
THE PRACTICAL PROCEDURE For each FD The initiation procedure The procedure of forwarding Competent authorities Consultation Time limits Consequences for IS Decisions of the ES Information exchange Practice tips: e.g When appropriate, consultations are strongly recommended in order to assess the real reinsertion options of the sentenced person, especially when the alternative measures imposed imply the need of permanent address, submission to compulsory treatment etc.
ALTERNATIVE MEASURES TO PTD I Germany (a) the obligation to communicate to each authority any change of residence; b) the obligation not to enter certain places, places or specified areas in the Federal Republic of Germany or in another Member State, (c) the obligation to stay at a certain place, if any, at a specific time, (d) an obligation to restrict departure from the Federal Republic of Germany, (e) the obligation to report to a judge, the prosecution authority or a designated service at specific times, (f) the obligation to avoid contact with certain persons, such as co-accused persons, witnesses or experts, (g) an obligation to abstain from certain activities connected with the alleged offense; h) the obligation to deposit a certain amount of money or other security, either at fixed rates or as a whole; other securities may be securities, pledged or surety-eligible persons, (i) the obligation to avoid contact with certain items, such as computers or mobile phones, which are related to the alleged offense. Latvia a ) notification of the change of the place of residence; b) reporting to the police authority at a specific time; c) prohibition from approaching a specific person or location; d) prohibition from a specific employment; e) prohibition from departing from the State; f) residence in a specific place; g) personal guarantee; h) bail; j) placement under police supervision; i) house arrest;
ALTERNATIVES TO PTD II Romania Judicial control with different obligations (e.g. to appear before the court, not to visit certain places etc.) Judicial control on bail – financial or non-financial guarantee House arrest Spain Bail Withdrawal of driving licence Obligation to appear and retention of the passport EM Home detention Different child protection measures (e.g. suspension of the parental authority)
ALTERNATIVE SANCTIONS AND PROBATION DECISIONS I Germany Suspension of imprisonment with probation Conditional release Restitution of the prison sentence -Various obligations Latvia CS SS Probationary supervision – additional punishment Conditional release -Various obligations
ALTERNATIVE SANCTIONS AND PROBATION DECISIONS II Romania Deferred sentence Suspended sentence under supervision Conditional release -Various measures & obligations Spain Suspended sentence Conditional release Security measures (e.g. professional disqualification) Supervised liberty Open regime or third degree Permanent location or Home detention -Various obligations
OBSTACLES AND DIFFICULTIES finding the competent authority in the executing State, filling up the certificate adaptation dealing with the medical or therapeutical treatment Common difficulties/examples/ comments/practice tips/reflection points / case example E.g.: 1. How to decide on the lawful and ordinary residence? In case of unclear residence of the sentenced person, the lawful and ordinary residence can be decided after proper consultation between the competent authorities from both States – issuing and executing – and should take into account not only the residence rights but also the substantial and stable connections in the host State (in terms of family, employment or education) - based on Kozlowski case/2008. 2. Penal codes from the EU member states are usually available in different languages on the European Judicial Network website under the heading – Info about national systems . 3. Example VA is a Romanian citizen who committed a car accident in Spain while being under the influence of alcohol. He wants to return Romania and attend the trial from there. One of the measures imposed by the Spanish judge is withdrawal of the driving licence. This measure does not exist as such in the Romanian legislation. Therefore, the Romanian competent authority adapt it for judicial control with an extra obligation ‘not to drive a vehicle’ d uring this preventive measure.
ANNEX – CHECKLIST FOR THE CERTIFICATE
Questions? More information on: www.probationobservatory.eu Thanks!!
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