Monitoring the Probation Measures and Alternative Penalties in the European Union. Critical Remarks

• Author: Ion Rusu, PhD
• Position: Senior Lecturer. "Danubius" University of Galati
• Pages: 23-44

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1. Introductive Considerations

The recognition and execution of foreign criminal decisions and judicial acts represent, in our opinion, the most important form of international judicial cooperation in criminal matters. When analyzing the complex institution of recognition of foreign criminal decisions and judicial acts, we have to take into account both the criminal decisions that come from the Romanian judicialPage 24authorities, as well as those that come from the competent judicial authorities of other states (Boroi & Rusu, 2008, p. 347).

At the Europe's Council level, the first normative act that regulated the institution of recognition and execution repressive criminal decisions was the European Convention on the international value of repressive decisions, adopted at Hague on May 28, 1970.¹ Accomplishing the purpose assumed by the European Union, that is to create a space of freedom, security and justice entails, in what concerns the member states, an understanding of these concepts that are based on the principles of freedom, democracy, respecting the human rights and fundamental liberties as well as lawful state.

One of the essential elements of police and judicial cooperation within the European Union is represented by the mutual recognition of injunctions, principle that is consecrated in the conclusions of the European Council's reunion in Tampere, October 15-16, 1999 and was reaffirmed in The Hague Program, on November 4-5, 2004 on consolidating liberty, security and justice within the European Union. Also, within the measures program on November 29, 2000, adopted with the purpose of applying this principle, the Council has decided in favor of cooperation between member states as regards the execution of suspended convictions and conditional release in another member state than in the judicial decision was rendered.

In this context, mutual recognition and supervision of suspended convictions, convictions with postponement of execution, alternative penalties and decisions regarding probation aim at increasing the opportunities for social reintegration of the convicted person, allowing the person to maintain his/her family connections, the linguistic, cultural and other type of connections, as well as improving the monitoring of respecting the probation measures and alternative penalties, in order to prevent recidivism and offering proper attention to victims and citizens in general.

The European normative act that regulates cooperation between member states in this field is the Council's Decision Frame 2008/947/JAI on October 27, 2008 on the application of the principle of mutual recognition of injunctions and probationPage 25decisions in order to monitor the probation measures and alternative penalties², amended and completed by the Council's Decision Frame 2009/299/JAI on February 26, 2009 to modify Decision Frame 202/584/JAI, 2005/214/JAI, 2006/783/JAI, 2008/947/JAI, to consolidate human procedural rights and encourage the application of the principle of mutual recognition regarding the decisions taken in absence of the person in question from the trial³.

Thus, according to the provisions of the European normative act mentioned above, the probation measures and alternative penalties that have to be monitored also comprise dispositions regarding:

- the behavior (ex. the obligation to stop drinking alcohol);

- residence (ex. the obligation to change residence caused by domestic violence);

- education and training (ex. the obligation to attend "safe driving" classes);

- leisure activities (ex. obligation to stop practicing a certain sport or participating at it);

- limitations on the ways to deploy a professional activity (ex. the obligation to seek a professional activity in another working environment; this obligation does not include monitoring the compliance with losing the right to exert a profession that derives from the specific penalty).

Of course that the probation measures and alternative penalties can be completed with others, this aspect depending on each member state.

Consequent to its aspirations for European integration and wanting to actively participate to the general effort of the world's states in what concerns the effectively prevention and fighting against crime, Romania adopted Law no. 302/2004 on international judicial cooperation in criminal matters⁴, that also comprisesPage 26dispositions regarding the recognition and execution of foreign criminal decisions and judicial acts, including those whose stemming from a judicial authority of a EU member state.

2. Objectives, Scope and Definition of Terms

The European normative act aims at three objectives, namely:

- facilitate the social rehabilitation of convicted individuals;

- improving victims and citizens protection;

- facilitate the application of adequate probation measures and alternative penalties in case of criminals that have the residence outside the issuing state;

The provisions of this community instrument are applied only in what concerns:

- the recognition of injunctions and, if necessary, probation decisions;

- the transfer of the responsibility to monitor the probation measures and alternative penalties;

- other community instruments that refer to the abovementioned.

In order to eliminate the unilateral interpretations of some terms by the member states' institutions in the cooperation activity, a series of definitions have been included in the European normative act, that will be taken into account in the specific judicial cooperation activities I criminal matters, in order to recognize and execute criminal decisions, namely:

1. "injunction" - any definitive injunction or order issued by a judicial instance of the issuing state, establishing that a private person committed a crime and is applied:

   a) an imprisonment punishment or any other custodial measure, in case a decision of probation was given based on the injunction or a subsequent probation decision;
   b) a suspended conviction;
   c) sentences with the postponement of execution of the conviction;
   d) an alternative penalty.Page 27

2. "suspended conviction" - refers to an imprisonment punishment or a custodial measure, the execution of which is conditionally suspended, totally or partially, when the sentence is given, by imposing one or more probation measures. This type of measures can be included in the injunction or established through a separate probation decision adopted by a competent authority;

3. "sentences with the postponement of execution of the conviction" - injunction according to which the application of a punishment was conditionally postponed, by imposing one or more probation measures, or one in which several probation measures are imposed instead of an imprisonment punishment or a custodial measure. This type of probation measures can be included in the injunction or can be established in a separate decision adopted by a competent authority;

4. "alternative penalty" - a penalty that does not consist in an imprisonment punishment, a custodial measure or a financial penalty and that entails an obligation or a measure of constraint;

5. "probation decision" - injunction or definitive decision of a competent authority of the issuing state, taken based on an injunction that:

   a) grants probation;
   b) entails probation measures.

6. "release on probation"- definitive decision taken by a competent authority or that derives from the internal legal norms on the release of a convicted person after the partial execution of an imprisonment punishment or a custodial measure, by imposing one or several probation measures;

7. "probation measures"- obligations and measures of constraint imposed by a competent authority to a private person, according to the national legislation of the issuing state, regarding a suspended sentence, a sentence with the postponement of execution of the conviction or a release on probation;

8. "issuing state"- member state in which the injunction is pronounced;

9. "executing state" member state in which the probation measures and alternative penalties that follow a decision according to article 8 are monitored.⁵Page 28

   Analyzing these definitions, in relation to the dispositions of our internal normative acts in this field, we observe that most of them have a correspondent in the Romanian legislation, having practically the same meaning. Nevertheless, we have to mention the fact that there are, in the European normative act, definitions that are not found in our legislation, such as "probation measures" and "probation decision".

3. Competent Authorities, Types of Probation Measures and Alternative Penalties

According to the provisions of the European normative act, each member state will have to appoint the competent authorities for the recognition and execution of such injunctions, both as issuing state as well as executing state and to inform the Council's General Secretariat. The Romanian special law stipulates that the competent Romania judicial authority that can recognize and execute an injunction issued by the judicial authority of another state is the court of appeal whose circumscription comprises the residence of the person convicted.

We have to mention that the special Romanian law has granted the competence to the court of appeal whose circumscription comprises the foreign residence of the convicted person for the recognition and execution of all categories of criminal penalties, including the custodial measures.

The...