In the future, conditions of probation imposed upon criminal offenders are to be subject to supervision throughout the EU. Under the leadership of German Federal Justice Minister Brigitte Zypries, the EU Justice Ministers today reached agreement on the major cornerstones of a Framework Decision in that regard. The goal of the initiative, put forward jointly by Germany and France, is to improve cooperation in the cross-border supervision of sentences of probation and alternative sanctions (for example, community service work, providing reparations for damage caused, or participation in social training courses). This will strive to foster the re-socialisation of convicted persons, prevent recidivism, and thereby attain better protection of victims.
EU JHA Council President and German Justice Minister Brigitte Zypries said, “The German-French initiative serves to protect the victim and the public, but above all it serves to facilitate the offender’s social re-integration. Successful re-socialisation prevents repeated crime and therefore represents the best protection for victims over the long term. A sentence or a portion thereof may be suspended on probation to allow the criminal offender, supervised by the State, to re-integrate into society and live a crime-free life in liberty. To provide assistance, conditions and instructions are regularly imposed during the period of probation, and a probation officer may be assigned to the individual concerned. In order to make this controlled re-integration possible for criminal offenders who do not reside in the executing state following their release on probation, we need cross-border supervision of probation. With the cornerstones agreed upon today, I am extremely confident that a political agreement on the necessary legal instrument will be possible in the near future.”
The new European legal instrument is to ensure, for instance, that someone who has been convicted in Germany to a term of probation or an alternative sanction may live and work in France without impeding the effectiveness of the imposed probation measures. In the Framework Decision, the Member States are to obligate themselves, as the state of residence of a convicted person, to recognise that conviction without any major formalities and to supervise the imposed probationary measures and alternative sanctions. The respective Member State is to treat the conditions and instructions as if they had been issued by one of its own authorities.
The aim of the draft is to avoid having courts either decline to impose any probation measures at all for defendants with their habitual residence in another country, or to immediately impose a prison sentence solely to avoid having the convicted person remain unpunished by returning to his habitual residence in another county because no cross-border supervision of conditions and instructions is currently undertaken.
In the current legal situation, there is no opportunity at all to monitor abroad probation measures imposed in Germany and to control compliance with them. These measures, which as a rule are adapted to the requirements of the individual offender, such as therapy requirements, assignment of a probation officer, or prohibition of contact with certain persons, remain unenforced.
Zypries explained, “If, for example, a court in Germany has imposed a therapy requirement on a drug addict, this can currently not be continued if the convicted person – for whatever reason – moves to another EU country. A relapse, which is precisely what the therapy strives to avoid, thus becomes more likely. Cross-border supervision of probation will strive to ensure that measures already commenced need not be interrupted following a transfer of the habitual residence to another Member State. In the future, offenders are to be able to go to the State of their habitual residence without having to fear negative consequences for their re-integration. This is because our proposal ensures that the responsible authorities of the affected Member State will supervise the continuation of therapy.”
In terms of content, the scope of application is to include probation for the remainder of sentences and alternative sanctions. Alternative sanctions encompass those measures that are imposed as independent punishments.
As a general rule, the executing state is to take on responsibility for all subsequent decisions, such as revocation and pardon. As such, it holds the responsibility for the further course of supervision of the measures, and also for the potential enforcement of the punishment following a revocation of probation.
