The Probation Service in the Context of European Integration. The Supervision of Convicts in the Community. Critical Observations

Author:Senior Lecturer Ion Rusu, PhD
Position:Danubius University of Galati
SUMMARY

The purpose of the appliance of non-custodial penalties, completed by the necessity of respecting the measures of surveillance and/or certain obligations imposed by the court, is to ensure the re-socialization and reintegration into the community to which they belong. In this context, at the European Union's level it was adopted 2008/947/JHA Framework Decision of the Council on 27 November 2008... (see full summary)

 
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1. Preliminary Considerations

Regarding the term of probation, the specialized literature has sustained that "etymologically, the word comes from the Latin probatio, a term which means a proving period, or a test and forgiveness. Thus, those convicted that have proved a desire for change throughout the set period, by accomplishing their imposed probation conditions, they are forgiven and freed from other implications of the criminal justice system" (Tomita, 2010, p. 30).

Considering the development of alternative sanctions to our country, the doctrine has sustained that "in Romania the non-prison criminal action, that is the suspension of the sentence, with or without conditions, were tested under the form of bills even from 1900, by the Minister of Justice C. Disescu, but legal consecration of such measures have resulted in the Law on Unions of 1921, which in article 59 provides the suspension of sanctions under certain circumstances.

In Charles II Criminal Code of 1936, the institution of suspending the penalty appears for the first time, where the institution appeared also in the code of 1968 ... "(Chis, 2009, p. 23)

The same author (Chis, 2009, pp 23-24) states that "in the current criminal law the enforcement of suspended sentences, renouncing the penalty, conditional release, conditional sentence for physical entity, educational measures applicable to minors (scolding, freedom under supervision, admission to a rehabilitation center, hospitalization in a medical-educational institute), safety measures, to waive minor's offenses and sentence, all are scientifically mentioned in the criminal, procedural and execution criminal law, but directed only towards their applicability for realizing the contribution of social sciences, economic sciences and the humanities are reduced, and most of the times, theoretical, principled, sometimes declarative without practical completion."

We consider that in Romania, the probation system was implemented with the entry into force of the Criminal Code of Charles II, which provided a number of specific rules.

Thus, article 50 stated that, in addition each company will operate a court patronage, under the supervision of the Minister of Justice, assisted by a central council for social reclassification of released prisoners and for meeting the legal duties relating to minors. These companies will be led by local magistrates' courts.

Although modeled after the Italian Penal Code, the doctrine of the time, referring to the source text, noted that it "has no corresponding text in the foreign codes. It is inspired by the tendency of modern criminal science, helping the convict's rehabilitation, after penalty, in order not to relapse (Rătescu & co., 1937, p. 125).

At the same time note that the article 65-69 of the same Code it is regulated the institution of suspending the execution of sentence, for three years, plus the duration of the sentence, in the case of a sentence of up to two years correctional imprisonment, simple imprisonment or fine, if two conditions are met, namely:

- the prisoner has not suffered any prior conviction of imprisonment for felony or misdemeanor, even though he was restored and

- if according to the circumstances and the history of the convict, the court considers that for the near future he will improve his conduct, even without the performance of the penalty.

Note that, for the social reintegration of the convicted persons, there was established a cooperation between the courts and patronage companies, which were headed by the magistrates of that town.

In this context we appreciate that the company of patronage established under the provisions of the Criminal Code of Charles II the first Romanian law institution of probation with specific tasks regarding the community supervision of persons sentenced to non-custodial sentence.

Subsequently, the institution of probation and was taken to the Criminal Code of 1968, as provided in the new Criminal Code1, with permanent tendencies of development and modernization in line with the developments in modern European criminal sciences.

Regarding the probation, the literature has claimed that it "is one of the first community sanctions, as a regulated intermediately as an alternative method to custodial sentence. Its appearance was determined on the one hand, by the need to develop legal systems adapted to juvenile delinquency, and on the other hand by the emergence of new tendencies in criminology which advocate the crime control outside the criminal justice. It reflects the key mutations at the level of traditional philosophy of punishment and its functions.

As a non-sanction of imprisonment, probation has been practiced in various forms in England, since the Middle Age. In the second half of the nineteenth century, it began to be accepted in the USA "(Coraş, 2009, p. 52).

At past mid-century, the probation was defined in UN documents as a "method applied to selected offenders, which consists of conditional suspension of sentence and putting under the personal supervision of the probation counselor for assistance and treatment" (Coraş, 2009, p. 54).

Referring to probation, the doctrine has revealed the fact that it is "granted the possibility for the convicted criminals to execute their sentence in the community, under surveillance. The Probation is used instead of imprisonment, primarily for young offenders and offenders that are convicted of primary minor violations of the law. The conditions of probation include general restrictions regarding alcohol consumption, possession of firearms without permission and leaving the territory without the permission of the territory under the jurisdiction of the court that took the action "(Coraş, 2009, p. 55).

Another view sustained that "the probation is an institution, ordered by state institutions, through the courts, by which it provides control and support to the offender, while he is left to live in the community under supervision (Tomita, 2010, p. 33).

Another group of authors believes that "the probation is the granted possibility to the convicted criminals to execute their sentence in the community, under surveillance" (Barbu & Serban, 2008, p. 288).

Other author refers to the main values of probation that were imposed internationally; he mentions the following:

- Respect for persons, human value, integrity and privacy;

- Equity, domiciliary visit and accountability;

- Reconciliation between offenders and communities to which they belong;

- Non-discrimination of persons who have committed criminal acts with no reason;

- Ongoing support and encouragement of the supervised people, assisted and advised for their reintegration into society and the accountability of their actions, by forming a correct attitude towards work, the rule of law and rules of social life. (Rusu, 2007, p. 217)

There is no doubt that in the development of criminal sciences in line with diversifying the opportunities of social rehabilitation of sentenced persons, the requirements of the overall evolution of society, the probation service will become an institution with a major importance in the structure of the Romanian judiciary system.

2. The Supervision of Convicted Persons in Romania, in the case where their Residence or Domicile is in another EU Member State

We appreciate that, given that a significant number of Romanian citizens2 have their residences or homes in some member states, it is required that the Romanian courts apply with priority the provisions OF 2008/947/JHA Framework Decision, from 27 November 2008 on the principle of mutual recognition in case of legal judgments and probation decisions in order to supervise the probation measures and alternative sanctions.3

In practical activity, there may be two cases of this kind, namely that a Romanian court sentences a person to a non-custodial penalty with mandatory compliance by the convicted person of certain measures or obligations under the Criminal Code and the person resides in another Member State, or when a Romanian court sentences a person to a non-custodial sentence and sentenced resides in another Member State. Naturally, each of the two presented cases, we will have to consider the convicted person's nationality (Romanian citizen, of another Member State or Stateless).

These two cases involve the Romanian judicial...

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