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Supervision of sentenced persons or persons on conditional release
This framework decision encourages the recognition and supervision of probation measures and alternative sanctions between Member States. It also defines the rules for supervising suspended sentences, alternative sanctions and conditional sentences, with a view to increasing the sentenced person’s chances of social re-integration, preventing re-offending and improving the protection of victims.
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 [See amending act(s)].
This framework decision extends the principle of mutual recognition of judicial decisions to the serving of non-custodial sentences. It defines the rules to be followed by a Member State when supervising probation measures and alternative sanctions imposed by another Member State.
The framework decision encourages Member States to cooperate more fully, to document the supervision of measures and sanctions in their national registers, as well as to protect personal data.
The framework decision concerns the recognition of judgments and the supervision of probation measures and alternative sanctions. It does not apply to the execution of judgments imposing custodial sentences or measures involving deprivation of liberty, nor to the recognition and execution of financial penalties and confiscation orders.
Member States may refuse to recognise a judgment or supervise a probation measure or an alternative sanction if these are discriminatory. They may also conclude or continue to apply bi- or multilateral agreements or arrangements if these facilitate the supervision of probation measures and alternative sanctions, but must inform the Council and the Commission of these.
Probation measures and alternative sanctions
Member States are to supervise judgments containing one or more of the following measures that require a sentenced person:
- to inform the relevant authority of any change in residence or working place;
- not to enter certain defined localities or places;
- not to leave the territory of the executing State;
- to follow the instructions issued relating to life-style, residence, training, etc.;
- to report at specified times to the relevant authority;
- to avoid contact with specific persons and objects;
- to compensate for the harm caused by the offence;
- to carry out community service;
- to cooperate with a probation officer or a relevant representative of a social service;
- to undergo therapeutic treatment or treatment for addiction.
This list is not exhaustive. Member States must notify the General Secretariat of the Council of the other measures or sanctions they are prepared to supervise.
Member States must inform the General Secretariat of the Council of the authorities that are competent to act under this framework decision. These may also be non-judicial authorities, if they have equivalent powers under national law. If a decision is taken by an authority other than a court, provision must be made for it to be reviewable by a court or a court-like body. The Council communicates information on the authorities to the Commission and the other Member States.
Adaptation of probation measures or alternative sanctions
When the nature or duration of the probation measures or alternative sanctions does not correspond to that applied in the national law of the executing State, it may adapt them accordingly. However, these measures must be as consistent as possible with those imposed by the issuing State. In no case may the nature or the duration of the measures be more severe or longer than what was originally imposed. The issuing State must be notified of any adaptation in writing.
No verification of dual criminality is required for offences punishable in the issuing State by a sentence involving deprivation of liberty of at least three years. These include: participation in a criminal organisation, terrorism, trafficking in human beings, child pornography, illegal trafficking in human organs, narcotics, arms, explosives or nuclear and radioactive material, corruption, computer-related crime, racism and xenophobia, crimes against the environment, abduction, counterfeiting and rape.
For other offences, the executing State may make the recognition of the judgment and the probation decision as well as the supervision of the measures or sanctions conditional on the judgment relating to acts that constitute an offence under its national law.
Grounds for refusal, timeframe and costs
The executing State may refuse to recognise a judgment or a probation measure, or to supervise measures or sanctions issued, if:
- the certificate is incomplete or does not correspond to the judgment or the probation measure;
- the criteria for forwarding the judgment or probation measure are not met;
- recognition and supervision would contravene the ne bis in idem principle;
- the judgment relates to an act that is not an offence under its national law, except when the act relates to taxes or duties, customs and exchange;
- the action is statute-barred under its national law;
- supervision is impossible because of immunity under its national law;
- the sentenced person cannot, because of his/her age, be held criminally responsible for the act on which the judgment is based;
- the sentenced person did not appear at the trial, unless s/he was summoned in person, s/he had given a mandate to a legal representative or, following the decision, s/he did not contest the decision, or request a retrial or appeal;
- the judgment or probation measure orders medical treatment that the executing State cannot provide;
- the duration of the measure or sanction is less than six months;
- based on its law, the offence was committed on its territory.
From the time it receives the judgment or the probation decision and the certificate, the executing State has 60 days in which to inform the issuing State in writing, whether or not it recognises the judgment or the probation decision and will assume responsibility for supervising its execution. Either the issuing or the executing State may grant an amnesty; the executing State must inform the issuing State of such a decision in writing.
The costs resulting from the application of this framework decision are borne by the executing State, except for those arising within the territory of the issuing State.
Obligations in relation to jurisdiction
The competent authority of the executing State must inform the authority of the issuing State in writing of any decision modifying the probation measures or alternative sanctions, revoking the suspension of execution of the judgment or of the decision on conditional release, enforcing a custodial sentence or a measure involving deprivation of liberty, as well as on the lapsing of probation measures or alternative sanctions.
In all cases, the executing State must inform the issuing State in writing if it transmits the judgment or probation decision and the certificate to an authority that is responsible for their recognition and supervision. Furthermore, the executing State must notify the issuing State that it is impossible to supervise the probation measures or alternative sanctions if the sentenced person cannot be located on its territory.
If the issuing State has jurisdiction for further decisions, the executing State must notify it of findings that require the suspension of the execution of the judgment or the decision on conditional release to be revoked, or a custodial sentence or a measure involving the deprivation of liberty to be imposed. In addition, the executing State must provide all essential facts that the issuing State requests. The issuing State has the obligation to provide the executing State information on the decisions taken concerning the revocation of the suspension of the execution of the judgment or the decision on conditional release, the enforcement or imposition of a custodial sentence or measure involving deprivation of liberty and the lapsing of probation measures or alternative sanctions.
If the sentenced person absconds or no longer has his/her legal residence in the executing State, the competent authority in that State may transfer its jurisdiction to the competent authority in the issuing State. This applies also to cases where new criminal proceedings in the issuing State are initiated against the sentenced person.
This framework decision replaces the corresponding provisions of the 1964 Council of Europe Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
|Framework Decision 2008/947/JHA||
OJ L 337 of 16.12.2008
|Amending act(s)||Entry into force||Deadline for transposition in the Member States||Official Journal|
|Framework Decision 2009/299/JHA||
OJ L 81 of 27.3.2009