QUALITATIVE REPORT - Reducing Prison · the alternatives is sought in the Bulgarian National...

Reducing Prison Population: advanced tools of justice in Europe

JUST/2013/JPEN/AG/4489

QUALITATIVE REPORT

Co-funded by the European Union

Edited by:

2

This publication has been produced with the financial support of the Criminal Justice Programme of the

European Union. The contents of this publication are the sole responsibility of the authors and can in no way

be taken to reflect the views of the European Commission.

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INTRODUCTION ................................................................................................................................. 5

ALTERNATIVES TO IMPRISONMENT IN BULGARIA ................................................................. 6

INTRODUCTION .............................................................................................................................................................. 7

1. TYPES OF ALTERNATIVES TO IMPRISONMENT ................................................................................................ 7

2. STRENGHTS AND WEAKNESSES OF ALTERNATIVES TO IMPRISONMENT ................................................. 10

3. IDENTIFICATION OF THE KEY ACTORS INVOLVED ...................................................................................... 11

4. IDENTIFICATION OF THE FEASIBILITY AND MAIN CONDITIONS TO IMPLEMENT ALTERNATIVES TO

DETENTION ................................................................................................................................................................... 14

5. SUGGESTIONS TO IDENTIFY AND EVALUATE GOOD PRACTICES .............................................................. 15

ALTERNATIVES TO IMPRISONMENT IN FRANCE .................................................................. 16

INTRODUCTION ............................................................................................................................................................ 17

1. LEGAL ATTEMPTS TO LIMIT INCARCERATION ............................................................................................... 18

2. PRAETORIAN PROGRAMMES ............................................................................................................................. 21

3. CONCLUSION ....................................................................................................................................................... 23

ALTERNATIVES TO IMPRISONMENT IN GERMANY ............................................................... 26

1. OVERVIEW OF ALTERNATIVES TO IMPRISONMENT ..................................................................................... 27

2. STRENGTHS AND WEAKNESSES OF ALTERNATIVES TO IMPRISONMENT ................................................. 29

3. FRAMEWORK OF ALTERNATIVES TO IMPRISONMENT ................................................................................. 31

4. TARGET GROUPS OF ALTERNATIVES TO IMPRISONMENT ........................................................................... 34

5. RELEVANT ACTORS AND PERSPECTIVES ........................................................................................................ 35

ALTERNATIVES TO IMPRISONMENT IN ITALY ....................................................................... 39

1. TYPOLOGIES OF ALTERNATIVES TO DETENTION ........................................................................................ 40

2. STRONG AND WEAKNESS POINTS .................................................................................................................... 44

3. KEY ACTORS INVOLVED .................................................................................................................................... 45

4. THE ROLE OF THE NGOS AND PRIVATE CITIZENS ...................................................................................... 46

5. ACTORS INVOLVED DURING THE SENTENCE AND THEIR INFLUENCE .................................................... 47

6. ACTORS INVOLVED IN THE IMPLEMENTATION OF ALTERNATIVE MEASURES ....................................... 48

7. NECESSARY CONDITIONS TO IMPLEMENT ALTERNATIVES TO DETENTION ........................................... 48

8. SUGGESTIONS TO IDENTIFY AND EVALUATE GOOD PRACTICES .............................................................. 49

ALTERNATIVES TO IMPRISONMENT IN LATVIA .................................................................... 52

1. INTRODUCTION .................................................................................................................................................. 53

2. TYPES OF ALTERNATIVES TO IMPRISONMENT .............................................................................................. 53

3. STRENGTHS AND WEAKNESSES OF ALTERNATIVES TO IMPRISONMENT ................................................. 56


CONTENT

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DETENTION ................................................................................................................................................................... 61

6. CONCLUSIONS AND SUGGESTIONS ................................................................................................................. 63

ALTERNATIVES TO IMPRISONMENT IN ROMANIA ................................................................ 66

1. TYPES OF ALTERNATIVES TO IMPRISONMENT .............................................................................................. 67

2. STRENGHTS AND WEAKNESSES OF ALTERNATIVES TO IMPRISONMENT ................................................. 71



DETENTION ................................................................................................................................................................... 76

5. 5) SUGGESTIONS TO IDENTIFY AND EVALUATE GOOD PRACTICES .......................................................... 77

ALTERNATIVES TO IMPRISONMENT IN SCOTALND ............................................................. 80

1. ARGUMENTS IN FAVOUR OF ALTERNATIVES TO IMPRISONMENT ............................................................. 83

2. PRE-TRIAL ............................................................................................................................................................ 83

3. POST-TRIAL .......................................................................................................................................................... 88

COMPARATIVE CONCLUDING REMARKS .................................................................................. 94

1. DIFFERENT TYPES OF ALTERNATIVES TO DETENTION – PRE-TRIAL ....................................................... 95

2. DIFFERENT TYPES OF ALTERNATIVES TO DETENTION – POST-TRIAL ..................................................... 98

3. MAIN ACTORS INVOLVED ............................................................................................................................... 101

4. MAIN TARGET OF THE ALTERNATIVES TO DETENTION ........................................................................... 106

5. MAIN ADVANTAGES AND DRAWBACKS OF THE ALTERNATIVES TO DETENTION ................................ 108

6. MAIN OBSTACLES AND NECESSARY CONDITIONS FOR THE IMPLEMENTATION OF ALTERNATIVES TO

DETENTION ................................................................................................................................................................. 114

7. SUGGESTIONS FOR THE IDENTIFICATION OF GOOD PRACTICES ............................................................ 118

GUIDELINES ................................................................................................................................................................ 126

DRAFT INTERVIEW ......................................................................................................................... 128

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INTRODUCTION

This manual is one of the deliverables that have been produced by the partner countries during the research

phase of the European project “Reducing prison population: advanced tools of justice in Europe”

(JUST/2013/JPEN/AG/4489).

It contains seven national reports and comparative conclusions regarding the semi-structured interviews on

alternatives to detention carried out to five experts in each county involved in the project.

The interviewees has been chosen because of their specific knowledge or expertise on non custodial

measures, and belong to the following categories:

• Legislators, legal drafters, law reform commissions and policy makers;

• Judges, judicial officers, members of the judiciary;

• Lawyers (especially defence lawyers);

• Police, law enforcement authorities, prosecuting authorities, prison authorities and probation officers;

• Volunteers and members of non-governmental organizations.

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Co-funded by the European

Union

Alternatives to imprisonment in Bulgaria

Andrey Momchilov Crime Prevention Fund - IGA

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Introduction As per project methodology the aim of the interviews was to gain a deeper knowledge of the existing practices

related to alternatives to pre and post-trial detention, in order to map the projects/services promoted by Local

Authorities and major private organizations and identify some possible criteria to select the best practices

among them.

5 interviews were held with the following respondents:

- Head of Probation Department at the Ministry of Justice

- Head of Center for Social Rehabilitation and Integration of Offenders/ NGO

- Lawyer

- Penal Judge, currently Head of District Administrative Court

- Municipal Council Member, representative in the Commission for Support of Ex-offenders and the National

Punishment Implementation Council.

The interviews were conducted in Bulgarian. Two interviews have been recorded, the rest have been

transcribed.

1. Types of alternatives to imprisonment

1.1 To your knowledge, what are the main alternatives to imprisonment?

All respondents demonstrate good level of knowledge about the alternatives to pretrial detention and

imprisonment. The reason for this is that they all are practicing professionals and with regard to this the first

question proved to be somewhat unnecessary. Another reason for this is that the alternatives to detention are

explicitly written in the Bulgarian penal legislation. Therefore it is recommended that further information on

the alternatives is sought in the Bulgarian National report.

1.2 Let’s focus on pre-trial alternatives. What are the main pre-trial alternatives?

There are the three separate alternatives to pre-trial detention in Bulgaria. These are frequent registration at

the prosecutor’s office, bail and house arrest. The conditions under which one of these alternative measures

will be selected are explicitly written into law. It is always a judge that has to make his decision in a separate

proceeding concerning only the imposition of a custodial or alternative measure aimed at securing the accused

person’s cooperation with the justice authorities.

-‐ Which ones do you think are the most effective?

It is hard to evaluate the effectiveness of these measures because is an issue of individual cases where the

particular measures have been applied. The respondent judge expressed her concern with the limitations

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imposed by the legislation which in some cases requires for a more strict measure than the one that the judge

believes is adequate in the particular case. The respondent lawyer pointed out to the large number of cases

that are being preceded in the absence of the accused person, which according to her demonstrates that in

these cases the alternative measure imposed has proven to be ineffective.

A specific concern was raised by the judge, which regards to bail. Very often offenders and accused persons

are in poor economic conditions. In cases of imposed bail the money necessary are usually collected between

family members, friends and relatives of the accused person, which puts an unnecessary strain on his/ her

closest support network. Similar opinion has been expressed by the NGO representative, according to whom

often the offenders simply cannot afford to pay their bail (guarantee). In these cases the judge has no other

option but to select a stricter measure – house arrest or detention, which is often not adequate to the

individual situation.

-‐ Which ones are legally available?

The respondents are equally aware of the fact that the alternative measures in question are explicitly described

in the relevant legislation, and so are the conditions for their imposition.

-‐ Which ones have already been implemented in you context?

All measures described by the law are currently being implemented.

1.3 Let’s focus on post-trial alternatives. What are the main post-trial alternatives?

The respondents were aware of the existing post-trial alternatives. The judge and the Council member

distinguished between post-trial and post-detention measures – conditional/ suspended sentence and

probation (post-trial) and parole (early release) and parole with probation supervision for the remaining period

of the sentence.


The opinions on the effectiveness of these alternatives vary. The Head of probation, the Councillor and the

NGO representative pointed out to probation as being the most effective, because of different reasons – cost

to benefit ratio (Councillor), the chance to impact the offenders, their risk and behaviour (NGO

representative and Head of probation) and the opportunity to supervise the convicted person (Head of

probation).

The lawyer and the judge wouldn’t state that probation is ineffective, but both pointed out to the fact that

from offender’s point of view probation is a much harder sentence than the conditional sentence, because it

requires frequent meetings and visits to the probation service, often also community service and other

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measures. For offenders, who have jobs this makes it a very hard sentence to comply with. The Head of

probation mentioned also that when the offender is not living in the same city, where a probation service

office is, this means he/she has to incur costs for travel, and waste a lot of time. Another reason mentioned

by the judge and the lawyer is the fact that many offenders go abroad to work – something which is not

possible under probation as the person sentenced to probation is not allowed to leave the country.

The lawyer also mentioned that sometimes judges, when formulating a probation sentence, do not select the

most appropriate measures suitable for the individual offender.

Another useful comment was made by the respondent judge, who welcomed the new possibility to offer

conditional sentence with 1 probation measure included in it, thus creating an alternative that lies between a

simple conditional sentence, and full scale probation, which allows for more flexibility.

In any case all respondents were clear that they believe that the alternatives are better than imprisonment. The

judge stated that “prison is ineffective – prisons are crowded, reintegration is much harder”.


The respondents are equally aware of the fact that the alternative measures in question are explicitly described

in the relevant legislation, and so are the conditions for their imposition.


All measures described by the law are currently being implemented.

1.4 What are the main arguments (political, social, philosophical, economic, etc.) used to design and implement

alternatives to imprisonment?

- Head of Probation – Cost/benefit ratio compared to imprisonment, synchronization with EU standards and

regulations, reduction of the negative impact of imprisonment;

- NGO representative – easier reintegration of offenders, maintaining the offender’s link with their family and

the community;

- Lawyer – reduction of the number of prisoners, prison is too harsh for certain types of offences, where

probation can be more effective;

- Penal Judge – synchronization with the EU policies, differentiation and flexibility of sanctions, better

decision making by judges.

- Municipal Council Member – cost to benefit ratio compared to prison, better reintegration, reform

and modernization of the penal system.

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2. Strenghts and weaknesses of alternatives to imprisonment

2.1 What are the main strengths/advantages of using such alternatives to imprisonment?

The answers to this question generally coincide with the previous one – the main arguments for introduction

of alternatives to detention are based on their key strengths:

- value for money of the alternatives compared to prison;

- family and community links are not broken, unlike in cases of prison;

- diminished negative impact of the imprisonment;

- easier for the offender to integrate back into the society.

2.2 What are the main weaknesses/limitations of using such alternatives? (e.g. “widening the net”)

The judge was most concrete in expressing her opinion, stating that the main weakness with regard to both

pre- and post-trial alternatives is the rigidity of the legislation and the little space for flexibility and discretion

by the judge. Another view on this problem was expressed by the lawyer, who pointed out that often the

offender does not receive a sentence that is fully adequate to his/her situation and needs.

The NGO representative pointed to the need of creating strong interagency cooperation to facilitate the

offenders’ support networks – something which in her opinion is very hard to achieve and cannot be built by

a top-down approach.

The Councillor expressed an opinion that the alternative sanctions and measures are still underfunded, which

means that they cannot fully serve their purpose, especially probation, which has the potential to be a real

reintegration instrument if all possible measures that can be included in a probation sentence could be “filled

with content” – something that requires more significant funding. Similar opinion was also shared by the

Head of probation.

2.3 Could make a comparison between such alternatives and imprisonment?

The comparison with imprisonment was touched upon when discussing the strengths and the main arguments

for application of alternatives. All respondents took prison as a measure to compare, when pointing out to the

strengths of alternatives.

-‐ Costs/benefits

The zero costs for conditional sentencing and the fact that probation costs approximately 15 times less per

offender than imprisonment was explicitly mentioned by the Councillor and the Head of Probation.

-‐ Personnel involved

The Head of probation pointed to the fact that only 10 % of the General Directorate “Execution of

Sanctions” staff manages almost 70 % of the offenders in Bulgaria, which contributes to the lower costs. The

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need of better training for probation personnel was mentioned by the Councillor and the NGO

representative, who also explicitly pointed to the necessary skills in networking and cooperation.

-‐ Punitive element (how to identify it and how it is perceived by offender/victim/society);

The harsher punitive element was recognized by all respondents, with the judge and the lawyer both explicitly

stating that prison is harsher than the alternatives. The lawyer also pointed out to the perspective of the

victim, and that the majority of victims in Bulgaria still regard probation as “an easy ride” for the offender.

-‐ Effectiveness in the rehabilitation and reintegration of the offender;

The NGO representative and the Head of Probation most actively explained the potential of alternative

sanctions and measures to support the reintegration of the offender back into the society. The maintaining of

family and community relations, the possibility for the offender to keep his/her job, the chance to receive

psychological, social and even legal support are seen as key factors in the reintegration process. The lawyer

mentioned that for some specific offences only the alternatives have the potential to change the offending

behaviour (i.e. drunk driving). She also pointed out to the general preventive effect of the sanction on the

whole society.

-‐ Safeguard of human rights and human dignity.

None of the respondents had specific views on the issue of human rights and dignity. The judge and the Head

of probation mentioned only that the sanctions are laid in the legislation, which is in compliance with all

international and EU standards on human rights, so a comparison in this direction would not be very

meaningful.

3. Identification of the key actors involved

3.1 What are the main target groups of such alternatives to detention (both pre and post trial)?

-‐ What kind of crimes are most likely to be punished with alternative sanctions?

Only the judge and the lawyer answered this question, explaining the rules that are in the current legislation:

for which crimes probation can be imposed, and when conditional sentencing can be applied. With regard to

pre-trial alternatives to detention, the judge again explained the limitations and rules laid by the law. The

Head of probation added that the practice shows that the crime most often punished with an alternative

sanction is drunk driving – more than half of all probation clients.

-‐ What kind of characteristic should the offender have? (e.g. are there special categories? What is the socio-

demographic profile?)

As the judge explained, it is always a decision based on the individual case. She has to decide based on the

crime committed, its severity and dangerousness on one hand, and the personality of the offender on the

other. No other categorization exists and no socio-demographic factors are being applied.

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3.2 What is the role of the victim? (e.g. victims are heard, victims are informed, victims may co-decide, restoration of

harm to victim, etc.)

Regarding the role of victims, the respondents’ answers revealed a disparity between the legislative provisions

and the actual state of victim participation in the penal process. Both the judge and the lawyer explained the

provisions of the legislation (of which the rest of the respondents were more or less aware), which allow the

victim to be constituted as a private prosecutor and pursue their interest as a separate party in the penal

process even when the state prosecution decides to act differently.

In practice the role of the victim is not being supported much and remains lesser compared to the other

parties. As the judge stressed, the whole criminal process is not focusing on restoration and reparation to the

victim, but on punishing the offender. She believes that the victims and their interests should be cared for

from the beginning of the penal proceedings. The lawyer generally repeated this opinion, stating that “while

the victims’ interests are protected by the law, in practice they are not”.

The NGO representative explained from her point of view that victims should receive more legal advice and

support in order to make use of the legislative provisions and protect their interests better.

3.3 What is the role of the civil society? (e.g. in debates and policies)

The role of the civil society and its organizations is seen differently by the respondents based on their

professional background and experience. It should be noted that references have been made to the partner

organization (Crime Prevention Fund – IGA) in particular, as most of the respondents were well aware of its

activities and role as a non-governmental, civic organization. The key roles of the civil society sector according

to the respondents are as follows:

Local councillor – advocacy and campaigning, legislation amendments, social services for offenders;

Judge – initiating changes to the legislation, supporting the sentenced and the victims;

Lawyer – the role is important, civil organizations can and should support the victims;

Head of Probation – piloting new models (IGA helped introduce probation to Bulgaria), supporting offenders

and the probation service;

NGO representative – reintegration of the offenders through social services, support to victims.

3.4 What other key actors are involved in implementing such measures (both pre and post trial)?

-‐ What role do they play?

It is hard to speak about key actors in a system of sanctions and measures that is explicitly described in the

legislation, with roles and prerequisites aimed at the decision making process.

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-‐ Who is in charge of making the decision and on which ground? (e.g. police, public prosecutor, court,

investigating judge, etc.)

-‐ Who has an influence on such decision?

The decision is always made or controlled by a judge. As the judge (and the lawyer for that matter) explained,

there is a role for the prosecutor only with regard to the initial arrest, and even then the judge has to control

this decision. In the pre-trial phase there is a separate judicial proceeding focusing only on selecting a measure

to secure the accused person’s cooperation with the justice authorities. The prosecutor only proposes a

measure, but the decision is made by the judge.

In the post-trial phase, the decision is again made by the judge, and the only influence legally allowed is if

he/she decides to ask for a pre-sentence report from the probation service. In these cases he/she may or may

not accept the proposed by the probation service sentence “probation” and the specific measures proposed.

-‐ Who are the professional involved in implementing alternatives to detention (both pre and post trial)?

All alternatives, as well as detention measures, are structured within the Ministry of Justice jurisdiction, in

particular General Directorate “Execution of Sanctions”. The roles of professionals were described in greatest

detail by the Head of Probation. The General Directorate incorporates three key sectors:

- Prisons, responsible for the implementation of imprisonment.

- Probation service, responsible for the implementation of probation. It consists of administrative staff,

probation officers (called inspectors), junior probation inspectors (serving police like support functions) and

technical support staff. An important part of this service are specialized probation officers based in prisons,

who are responsible for supporting the inmate’s release from prison back into the society.

- Arrests – responsible for the implementation of pre-trial detention.

It is important to note that this three-directional structure is replicated on the local (district level), where there

is a District Service “Execution of Sanctions”, incorporating the local arrests, probation service units and

where applicable – a local prison (there are 11 prisons for adult males, one for adult females and one for male

juveniles).

-‐ Are there other institutions/organizations involved? What role do they play?

Any other institution/ organization would play only supporting role. The NGO representative mentioned that

in some cases this role is rather important – in Plovdiv district, where IGA operates a juvenile offender day

centre for social services, the judges are so well aware of the services provided that they explicitly refer

juvenile offenders to the services of the center, including mentioning specific programs in the probation

sentence of juveniles.

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4. Identification of the feasibility and main conditions to implement alternatives to detention

4.1 Are all the alternatives already available/feasible?

All alternatives in question are available and being applied. The Head of Probation stressed that there haven’t

been any specific feasibility studies conducted, so it is hard to judge on the question of feasibility. Only a

simple cost-benefit analysis has been done so far and its results are strongly in favour of probation over

imprisonment.

-‐ If not, what would make them available/feasible?

-‐ What are the institutions which should make such alternatives available/feasible?

4.2 What is the legislative framework of reference?

This question is related to the EU accession of Bulgaria and the need to implement the acquis communautaire

in the field of criminal justice. At the moment the Bulgarian legislation is fully synchronized with the EU

regulations in this field. At the same time all international (mostly UN) standards are also in power, including

over the national legislation.

-‐ Are there any legislative gaps?

The Councillor stressed on the need to make the provisions regarding probation more flexible and the need to

“fill them up with content”. The judge mentioned that although there are no gaps in the legislation,

improvements could be made that would allow the judge more space for flexibility in deciding about a pre-

trial measure or the contents of a sentence and its conditions.

The lawyer said that “there are always gaps in the legislation”, but wouldn’t elaborate further with regard to

alternatives.

-‐ Who should operate to fill up such gaps?

-‐ To what extent does the legislative framework apply? (e.g. local/national/international level)

The legislative framework is strictly national, follows the hierarchy of the Ministry of Justice structures and is

applied at the national level. The judge also mentioned the new EU instruments for transfer ot prison and

probation sentences between EU member states and informed of the country’s efforts to secure this transfer

in practice – something, which relates to the international level.

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4.3 What other conditions are necessary to effectively implement such alternatives (provided that the legislative

framework is already existing)? Please consider:

-‐ Personnel involved – the Head of probation, the NGO representative and the Councillor all mentioned

the need of quality training for the personnel involved. The NGO representative focused on the skills to

build support networks around the offender, while the Head of probation focused on issues like crisis

situation management, motivational interviewing, risk analysis and mitigation and prevention of

professional stress and burnout.

-‐ Facilities/infrastructures – the Head of Probation and the Councillor expressed the opinion that more

funding is required, especially for the probation service to allow more effective rehabilitation work with

the offenders on probation.

-‐ Electronic devices – the Head of probation, the judge and the Councillor all mentioned a pilot project for

use of electronic monitoring, providing the different points of view in this process. The Head of

probation explained how probation officers recommend prisoners for early release with electronic

monitoring, the judge explained the process of decision making about letting a prisoner be released with

electronic monitoring, and the Councillor, in his position as a member of the Commission for Support of

Offenders (responsible for the official proposition to the judge), gave a very recent example of three

prisoners being proposed for early release with electronic monitoring.

-‐ Other organisations/specialist bodies/NGOs – as on other questions, the NGO representative stressed

on the role of NGOs as an important potential partner in improving the effectiveness of the alternative

sanctions and measures.

5. Suggestions to identify and evaluate good practices

This whole section proved to be hard to discuss with the respondents. All pre- and post-trial alternatives to

detention in Bulgaria are described in the penal legislation, the conditions for selection are also described, and

the responsible decision maker is always the judge. This means that there is simply no space to allow for

discretion or maneuvers by the judge, no difference in the approach that we can pick up and say that this is a

good practice. Alternatives are the same for everyone and are implemented in the same way as required by the

legislation. The only good practice we can identify is actually also found in the legislation, it is the only good

practice that can be applied in other countries and we believe it is a very beneficial one. This is the possibility

for reduction of the prison sentence when the inmate is working, studying, training or attending programs/

interventions. In this case 2 days work/training are equal to 3 days of prison, which means that the inmates

can reduce their sentence by 1/3 if they engage in these meaningful activities. Apart from that, no other good

practices have been mentioned by any of the respondents.

16

Reducing Prison Population: advanced tools of justice in

Europe



Union

Alternatives to imprisonment in France

Martine Herzog-Evans Under the auspices of the International Society for Criminology

17

Introduction To prepare this report, professor Evans interviewed five expert-practitioners, two of which having been

involved in drafting law-reforms (Mr Pottier and Fossey); two others are also associate professors (Mr

Dufourd and Vicentini); one is a former president of a probation Union (Mr Pottier). These are: Judges

Dufourd (investigating judge, Laon) and Fossey (sentences’ implementation Judge, Paris); Prosecutor

Vicentini (Beauvais); Mister Lauféron (director of the charity ACPARS, Paris region) and Mr Pottier (former

deputy director of the prison services, currently director of the prison services school, Agen).

In trying to limit the use of incarceration, France has been relying heavily on law reforms, and very little, if at

all, on programmes. Its legalistic approach has however led to, in some cases, very classic, in some others, to

rather innovative approaches. Several of these approaches have had a strong impact on incarceration rates,

and have limited the consequences of otherwise continuous punitive trends over the last decade or so (Danet

& Retière, 2013), which had been inaugurated shortly after 9/11 (Danet, 2006). More recent attempts at

reducing incarceration rates are unfortunately clearly doomed to failure. If France mostly relies on laws in

order to change reality, it is on the one hand, because it lacks knowledge in evidence-based practices (EBP),

this being partly linked to both a strong resistance to criminology and to English language literature (Cario et

al., 2012; Herzog-Evans, 2012), and, on the other hand, because of the terrible financial state of its criminal

justice system (CJS), which prevents prison alternatives from being fully convincing both for decision-makers

and public opinion.

Parallel to this, at local level, practitioners have created a variety of programmes and experimented many

innovative projects, which aim both at making community supervision or release more useful and thus more

convincing for sentencing and release courts, and at compensating for this extreme dearth of financial, human

and material resources.

Both national and local initiatives have focused on most of the CJS phases: pre-trial, sentencing, supervision,

or release. Neither national nor local level programmes have however been inspired by EBP; as a matter of

fact, none has been evaluated. Very few appear to be transferrable to other European jurisdictions.

18

1. Legal attempts to limit incarceration Before 9/11 and its punitive policies aftermath, policy-makers were already aware of the necessity to provide

alternatives to incarceration at the various stages of the criminal process. The post WWII decade and then

again the 1970s were eras where a great number of alternative sentences and prisoners early release measure

were created. If the narratives behind such reforms have been at times contradictory (from punitive to

rehabilitative, in some instances at the very same time: Herzog-Evans, forthcoming a) France is now a

jurisdiction where prosecutors, pre-trial investigating judges, sentencing judges, and sentences’

implementation judges (see below) have a very large choice of options at their disposal.

It is in this context, that as early as 1970, ‘contrôle judiciaire’ was invented with the aim of replacing pre-trial

detention. In the early nineties additionally generated an extremely original legal innovation, whereby actual

prison sentences could be converted by a sentences’ implementation judge, into a community sentence or a

release measure. This reforming trend had seemed to a stall, until a 2014 law, decided to create a new

alternative measure, something which had not been done since the creation of community work in 1981 and

electronic monitoring in 1997.

1.1 Pre-trial stage

Pre-trial judicial supervision (contrôle judiciaire) [Judge Dufour]

Pre-trial judicial supervision (contrôle judiciaire) was created by a 1970 Act and is currently regulated by article

138 of the PPC (Cardet, 2000). Moreover, since 2007, article 144 of the PPC has stated that pre-trial detention

can only be pronounced if, inter alia, contrôle judiciaire (or curfew with electronic monitoring - EM) is not

sufficient to meet a series of objectives listed by this article: preserving proof; preventing pressures or threats

against witnesses or victim and their families; preventing fraudulous preparations with the co-accused;

protecting the person charged with the offence; guarantying that he/she shall be present in court; putting an

end to the offending; preventing exceptional troubles caused by the offence. The success of this three tier

system has been made possible only because the Court of Cassation’s Criminal Chamber (France’s highest

court) has amended its jurisprudence at the end of the years 2000s and decided to strictly bind lower courts to

the principles of article 144.

Contrôle judiciaire has thus contributed to a consistent reduction of pre-trial detention over the last years.

Contrôle judiciaire is also useful in that it allows using the pre-trial phase to start working on offenders’ needs

and victims’ protection. It can then have an impact at the sentencing phase, as the person can show the court

that he has made efforts towards his rehabilitation and that his level of risk is reduced.

Unfortunately, when state probation, and even more so when the police are in charge of contrôle judiciaire, their

extreme overload leads them to purely administrative supervision, where the person is essentially convoked

for a tick-boxing exercise where obligations are verified, a form of supervision which, as the literature shows,

is inefficient (see for instance, Trotter, 2013). As we shall however see, when the third sector is in charge, it

can deliver more qualitative and in depth supervision along with offender support.

1.2 Sentencing phase

19

Penal Constraint (contrainte pénale) [Judge Dufourd]

Penal constraint is a new probation plus community work sentence, created by the August 15, 2014 Act

(Giacopelli, 2014; Margaine; 2014). The aim is to compete with other community sentences, with the hope of

replacing imprisonment in many cases. It applies to people convicted of a felony punishable by five year

imprisonment (it will be 10 year, three years after the law’s implementation and once this implementation has

been ‘evaluated’).

There is however already a community order in the French legal system in the form of a suspended

imprisonment sentence with probation, which was created in 1958 (sursis avec mise à l’épreuve) and is widely

used. There also already is a suspended sentence plus probation plus community work (Sursis avec mise à

l’épreuve accompagné de l’obligation d’accomplir un travail d’intérêt général). In 2014, law reformers hoped that by

eliminating imprisonment from the – legal – equation, penal constraint would reduce incarceration. However

in reality, the law does state that the court must pronounced an imprisonment sentence along with contrainte

pénale, which can be implemented by a judge, if the person does not comply with his obligations. Legally,

imprisonment can never be eliminated.

This new sentences has also being presented as a more intensive supervision (with the hope of convincing

sentencing courts – and public opinion – that it is different from other ‘softer‘ alternative sentences’, and as

an opportunity to test EBP.

In actual fact it is highly unlikely that contrainte pénale will be largely implemented. Firstly, because of the

already existing aforementioned alternative sentences which are very similar, but are legally much less

complicated. Secondly, because, due to their already extremely heavy caseload, probation services are unable

at this point to supervise a great number of additional probationers (which sentencing courts are well aware

of), and are just as unable to intensify supervision for a great number of them. As of the EBP agenda, it would

require an institutional revolution which has little, if anything to do with the advent of a new sentence.

Additionally, an abundant literature has long showed that creating new community sentences does not in itself

reduce the use of incarceration since sentencing courts’ decision-making factors are essentially outside the

reach of legal reforms, but are to be found in a variety of psycho-social, cognitive, and criminological factors

(Hogarth, 1971; Millie et al., 2007; Wandall, 2008; Klein & Mitchell, 2010; Boone & Herzog-Evans, 2013;

Danet & Retière, 21013). Moreover, creating a new alternative sentence can also have a net widening effect

(Cohen, 1985).

So far, only a handful of such sentences seem to have been pronounced by French courts; and some courts

actually refuse to pronounce any.

1 .3 Pos t - s en t ence s en t ence t rans format ion

Article 723-15 procedure’ (‘procédure 723-15’) or ‘ab initio conversion of custodial sentences [Judge Fossey]

‘Article 723-15 procedure’, which was created in 1993 (former article D 49-1 PPC) consists for the prosecutor

in referring custodial sentences to the sentences’ implementation judge (see below), who can then transform

them into a great variety of other sentences or measures (e.g. probation and community work; semi-freedom,

EM, and so on.

20

‘Article 723-15 procedure’ was truly generalised when it was incorporated into a legislative norm (art. 723-15

PCC), in 2004.

In 1993, the eligibility criterion was: a custodial sentence of up to 6 months. In 2004, it became a custodial

sentence of up to 1 year. Then with the Prison Act 2009, it became: one or several custodial sentences of up

to 2 years for first time offenders, and 1 year for recidivists.

An additional condition is that the person has not received a bench warrant. Therefore, if a sentencing court

pronounces a custodial sentence without a bench warrant, it is with the deliberate intention to allow this

sentence to be transformed into a CSM.

It is a national practice, mandatory for prosecutors who have to refer all eligible cases for review to the JAP.

Article 723-15 allows transforming a custodial sentence into a variety of CSM, release measures, or day-fine. It

also allows transforming a probation + community work sentence into day-fine and vice versa. JAP can

equally transform some CSM into other CSM, e.g. EM into semi-freedom or vice versa.

Article 723-15 procedures really avoid custodial sentences which have actually been pronounced and would

otherwise be executed. In many cases offenders use the four months that the procedure lasts to initiate

important changes. It has been estimated that about 20,000 custodial sentences per year were thus not

executed.

1.4 Probation and Release

Sentences’ implementation judge (JAP : juge de l’application des peines) [Judge Fossey]

JAP are specialised judges, in charge of ‘sentences’ implementation’. They were experimented after WWII and

went to scale in 1958 with the enactment of the penal procedure code. They can be seen as the Neanderthal

ancestors of problem-solving courts (Herzog-Evans, forthcoming b)

Since two important laws passed in 2000 and 2004, JAPs’ decisions have had to be made on the basis of fair

trial (reform called ‘judicialisation’), including defence rights, and the right to appeal and access the Court of

Cassation. In 2004, TAP (three JAP tribunals) were created for some release decisions pertaining to long term

sentences.

JAP (or TAP, but for supervision) are in charge of:

- releasing inmates (parole and other release measures such as, inter alia, semi-freedom and EM);

- granting remission and day leave;

- making important supervision decisions such as adding obligations or sanctioning breach and non-

compliance;

- expunging criminal records upon release when a criminal record is an obstacle to employment;

- transforming custodial sentences into community sentences or measures, or community sentences into day-

fine or vice versa either right after the sentence was passed (ab initio sentence conversion) or, for the latter,

after it has started being executed.

JAP and TAP are grounded in various theories whether consciously or subconsciously (Herzog-Evans, 2014):

- the legitimacy of justice theory (see above under ‘context’) (Lind & Tyler, 1988; De Mesmeacker, 2014);

21

- desistance theory: most of French release criteria evoke desistance factors and JAP have a strong desistance

professional culture (Herzog-Evans, 2014);

- the French principle of the individualisation of sentences (Saleilles, 1898);

- Legal theory and human rights fair trial (Herzog-Evans, 2012-2014);

- therapeutic jurisprudence (Berman & Feinblatt, 2005; Winnick & Wexler, 2003): JAP are typically caring,

respectful, hands on judges (Herzog-Evans, 2014).

JAP have proved extremely sustainable and resilient: they have regularly been attacked by both political camps

and by the media for opposite reasons, but they are still here to stay. Fair trial has however sustained repetitive

attacks from legislators and JAP may well be forced to return to the administrative decision-making ways of

the pre 2000-2004 era.

2. Praetorian programmes

2.1 Pre-trial stage

Pre-sentence supervision plus housing for highly dissocialised offenders (contrôle judiciaire publics grande précarité)

[ACPARS. Mr Lauféron).

Pre-sentence plus housing is a programme offered by the Paris region third sector insertion and supervision

charity ACPARS, within the aforementioned pre-sentence legal framework of contrôle judiciaire. ACPARS is in

this instance delegated contrôle judiciaire in lieu of state probation. It comprises very qualitative and social-

educational supervision, along with a complete package of intervention on offenders’ social, psychological,

financial, legal, and criminogenic needs, and particularly focuses on housing. APCARS rents rooms and ‘social

hostels’ to the private sector and then use these to house offenders. ACPARS goes as far as to attend court

hearings and promise to offer housing and treatment. Such services are delivered for highly dissocialised or

homeless offenders in the hope of convincing judges or prosecutors not to place such offenders in pre-trial

detention. ACPARS can rely on a wide range of network of partners it has worked with for more than 30

years.

Pre-sentence supervision plus housing seems to meet most of these offenders needs and succeeds in many

cases in saving them from incarceration. Unfortunately, this is a local initiative (Paris region) and its financial

stability is unsure in today’s difficult economic context.

Differentiated Supervision [Prosecutor Vicentini]

This is a Local experiment initiated in 2008 in the North of France (Cambrai) in the form of ‘reenforced

support’ (see below) when prosecutor Vicentini was in post in this jurisdiction, and was then transplanted to

Beauvais (2010) where he was later transferred. It is about to be implemented (January 2015) in a third

jurisdiction (Saint Quentin). Mr Vicentini, the initiator of this project, wanted to create additional support for

multi-recidivists with a host of psycho-social needs, as state probation was not in a capacity to supervise and

support them adequately. He looked for local partnerships and funding with, inter alia, local municipalities. In

the case of differentiated supervision, which takes place at the pre-trial phase, the goals also were to create a

22

credible form of supervision attached to bifurcation (out of court) procedures, and to offer different levels of

supervision, depending on the level of reoffending risk that local offenders presented. Supervision is provided

by a host of partner agencies, by the prosecutor and his office staff, and, on a day to day basis, by a

‘coordinator’ hired by the municipality.

Unfortunately neither the assessment of the level of risk of offenders being offered, nor the supervision is

EBP; they are based on the prosecutor and his team’s perception of the person’s level of agency, and

supervision, albeit much more supportive and wide-ranging, resembles rather old school social work. Also,

unfortunately the prosecutor thinks that differentiated supervision should not last for too long and its

maximum length is of six months, which in many cases may not be enough to deal with offenders’ needs. On

the positive side, this initiative is drawing a lot of attention at Ministry of Justice level, as it shows that

municipalities can be a valuable source of funding for supervision and, compared to state supervision, is

clearly qualitatively superior. However, it is probably precisely for this reason that it has exasperated probation

services, and its executive branch, the prison services, both having withdrawn from the project and paralysed

further extension at national level.

2.2 Probation and release

Reenforced Support (accompagnement renforcé - AR) [Prosecutor Mr Vicentini].

Reenforced support was the first stage of the aforementioned series of programmes created by prosecutor

Vicentini in the various jurisdictions where he has been in post. It comprises the same focus on multiple

recidivists and/or people with little agency, municipality hired coordinator, network of partners and focus on

social work and support. Its weaknesses are similar. It can also count on the support of JAP.

Release plus housing and supervision [ACPARS Mr Lauféron).

This programme is similar to the pre-trial equivalent which was presented supra. It aims at offering a credible

framework for the early release of dissocialised inmates.

Reoffending prevention group work (groupe de parole de prévention de la récidive) and programmes for the prevention of

reoffending (programmes de prévention de la récidive) [Mr Pottier]

This was initially a local initiative, which later offered the framework for national so-called ‘programmes’. At

its origin was a local (Angoulêmes) initiative by the probation service to create a French version of a ‘What

Works’ programme for sex offenders. It was then turned into a national programme by Mr Pottier, who had

been the local chief of service of Angoûlèmes and later became the deputy prison services director. Whereas

the local programme was truly cognitive-behavioural, the national programme (programmes for the prevention of

recidivism : PPR) consists in a mix of cognitive mixed with traditional psychodynamic series of group-work

sessions organised either in prison settings or in the community by probation officers, trained by

psychologists as shown in a qualitative evaluation (Moulin, 2012), Moreover, PPR are very pale copies of Risk-

Needs-Receptivity programmes, with neither valid assessment, nor needs’ treatment, or regard for receptivity.

PPR have never been evaluated in terms of outcome. There is no way of knowing whether they work, but

given their theoretical framework it is likely that they actually cause harm (Vanderstukken & Benbouriche,

2014). PPR have both contributed to the credibility of probation services (: ‘they can change, they are open to

23

new things, they import international best practices’) and to their lack thereof (: ‘they are unable to implement

truly EBP; they want to do things the French way no matter what; ‘they are resistant to evaluation’).

2.3 Tribal Release [Mr Pottier]

This is a local (New Caledonia) programme which consists in relying on Kanak tribes for the elaboration of

Kanak prisoners release plans, and their supervision and reinsertion upon release. It is thus a responsivity (RNR )

culturally aware specific release programme for indigenous Kanak offenders.

The probation service of Nouméa (New Caledonia, aFrench overseas territory) initiated the programme as it

felt that Kanak offenders were not benefitting from early release measures as they were typically rejected by

their clan and were living in big cities. Philippe Pottier, the then probation director of Nouméa, who

happened to have a Masters in anthropology and 10 year experience in Tahiti, realised that the only way

around this difficulty was by organising offenders’ rehabilitation in their original rural clannish context. He

networked with clans and their representative bodies in order to create a specific ‘clan release’ system which

would, at the same time, fit in the French legal release system.

France, as a secular country, is traditionally very uneasy with communities and its probation services therefore

typically choose to ignore diversity on principle. Diversity or cultural awareness is neither a recruitment skill

nor a training subject. For these reasons alone, this experiment is truly remarkable. Unfortunately, and for the

same reasons, it has received neither support nor attention at national level, and has not been advertised. The

programme is extremely vulnerable to staff turnover and is in particular highly dependent on the personality

of the probation directors, JAP and prosecutors appointed from mainland France. A change could jeopardise

the programme – although since Mr Pottier left in 2001, it has still been in place. An even more serious threat

is the aforementioned culture, which shows extremely strong resistance to cultural diversity and therefore to

programmes that endeavour to address diverse publics specificities.

3. Conclusion Both French national and local initiatives to limit the use of incarceration have been either elaborated based

on various ideologies (national level – see Herzog-Evans, forthcoming a) or on a mix of idealism and despair

for the extreme poverty of the CJS (local level). At national level, all hopes are placed in law reforms, in spite

of their patent limitations; at local level, one finds a striking mix of good will, pragmatism, innovation, and

collaboration. However the lack of outcome evaluation of all of these initiatives makes them difficult to

expand nationally and probably dangerous to export.

However two initiatives stand out: the creation of Juge de l’application des peines, which allows maintaining some

level of qualitative work and desistance in French supervision and release, whilst enforcing legitimacy via

relatively informal due process along with a therapeutic key (Winnick & Wexler, 2003); and article 723-15

procedures which save thousands of offenders from incarceration each year.

24

References

Berman G. & Feinblatt J. (2005), Good Courts. The Case for Problem-Solving Justice, New York, The New Press

Boone M. & Herzog-Evans M. (2013), ‘Decision-Making and Offender Supervision’, in F. McNeill et K.

Beyens (eds.), Offender Supervision in Europe, Palgrave McMillan: 51-96

Cardet C., Le contrôle judiciaire socio-éducatif: Substitut à la détention provisoire entre surveillance et réinsertion, Paris,

l’Harmattan.

Cohen S. (1985), Visions of Social Control, Cambridge, Polity Press.

Cario R., Herzog-Evans M., Villerbu L.M. (2012), La Criminologie à l’Université, Paris, l’Harmattan.

Danet J. (2006), Justice Pénale, Le Tournant, paris : Folio-Lemonde.

Danet J. & Retiere J.N. (eds.) (2013), La réponse pénale : Dix ans de traitement des délits, Rennes : Presses

Universitaires de Rennes.

De Mesmaecker V. (2014), Perceptions of Criminal Justice, Abingdon: Routledge2014

Giacopelli M. (2014) , ‘La loi du 15 août 2014 relative à l’individualisation des peines et renforçant l’efficacité

des sanctions pénales : un rendez-vous manqué’, Actualité Juridique Pénal, n° 11 : 448-452.

Herzog-Evans M. (2012), « Who’s Afraid of Criminology ?”,

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2034867

Herzog-Evans LM. (2012-2013), Droit de l’exécution des peines, Paris, Dalloz.

Herzog-Evans M. (2014), French reentry courts and rehabilitation: Mister Jourdain of desistance, Paris: l’Harmattan.

Herzog-Evans M. (forthcoming a) in 2015), ‘France: legal architecture, political posturing, ‘prisonbation’ and

adieu social work’, in Robinson G. & McNeill F. (eds.) Community Punishment: European Perspectives, Routledge.

Herzog-Evans M. (forthcoming b) in 2015), ‘Is the French juge de l’application des peines a Problem-Solving

Court?’, in Herzog-Evans M. (ed.), Offender release and supervision: the role of courts and the use of discretion, Nijmegen,

Wolf Legal Publishers.

Hogarth J. (1971), Sentencing as a human process, Canadian Studies in Criminology.

Klein D. & Mitchell G. (dir.) (2010), The Psychology of Judicial Decision Making, Oxford University Press.

Lind E. A. and Tyler T.R. (1988), The Social Psychology of Procedural Justice, Dordrecht, Kluwer Academic/Plenum

Publishers

Margaine C. (2014), ‘La loi du 15 août 2014 et le milieu ouvert: vers un accroissement du contrôle des

personnes condamnées’, Actualité Juridique Pénal, n° 11 : 453-456.

Millie A., Tombs J. and Hough M. (2007), ‘Borderline sentencing: A comparison of sentencers’ decision

making in England and Wales, and Scotland’, Criminology and Criminal Justice, n° 7(3): 243-267

Moulin V. (2012), Les groupes de parole de prévention de la récidive des personnes placées sous main de justice, Mission

Droit et Justice, April.

Saleilles R. (1898), L’individualisation de la peine. Etude de criminalité sociale, Paris, F. Alcan

Trotter C. (2013), ‘Reducing recidivism through probation supervision: What we know and don’t know from

four decades of research’, Federal Probation, n° 77(2) : 43-48.

25

Vanderstukken O. & Benbouriche M. (2014), ‘Principes de prévention de la récidive et principe de réalité en

France : les programmes de prévention de la récidive) la lumière du modèle « risque-besoins-réceprtivité »,

Actualité Juridique Pénal, n° 11 : 522-527

Wandall R. H. (2008), Decisions to imprison. Courts decision-Making Inside and Outside the Law, Ashgate

Winick B. J. & Wexler D. B. (2003), Judging in a Therapeutic Key. Therapeutic Jurisprudence ad the Courts, Carolina

Academic Press, Durham NC

26




Union

Alternatives to imprisonment in Germany

Alexander Bähr, Prof. Arthur Hartmann, Katja Ede Crime University of applied sciences for public administration Bremen

27

1. Overview of alternatives to imprisonment

In the beginning of the interviews the interviewees were asked to talk about alternatives to imprisonment used

in Bremen and beyond, focusing as well on imprisonment as on pre-‐‑trial detention. First interviewees

mentioned how important a precise definition of ‘alternatives to imprisonment’ was. One argument was that

in a sense every kind of therapy given to inmates during their imprisonment is some sort of an alternative to

(future) imprisonment, because goals might be to avoid future delinquency. However, in order to avoid

exclusion of certain methods the term hasn’t been defined precisely. That way interpretation is left to the

interviewees.

In general the topic of alternatives to imprisonment in Germany seems to play a big role mainly in terms of

Imprisonment for failure to pay a fine. There are certain possibilities to avoid such type of imprisonment. For

example community service can be a substitute for the wanted fine and can be ordered within and outside of

detention. Within the Bremen prison the “day by day” project ensures that inmates can decrease their fine and

shorten the length of imprisonment.

Another project to avoid imprisonment for failure to pay a fine is aimed at fare dodgers. Its range is quite

small. Currently it deals with only 30 people and focusses on those fare dodgers, who repeatedly were ordered

to pay a fine, couldn’t comply and have already been imprisoned for this offence before. In Bremen those

people are offered a special monthly ticket at a reduced price. This way future fare dodging and further

imprisonment could be avoided.

Additionally a project called ‘manage your money instead of going to prison’1 of the association for assisting

offenders has started in 2012. You can find similar projects in the other federal states, as for example in

Niedersachsen, the neighboring state. Convicts who are sentenced to fines but are for various reasons not able

to pay them, are supervised by the convict-‐‑service. This service works out the possible payment size and

accompanies the person concerned during the following installment and helps with meeting the deadline. That

way payment of the fine is ensured as well as imprisonment avoided.

In principal in every federal state in Germany there are projects aiming to avoid imprisonment. These

methods and measurements can vary, for example with regards to the questions of how many work hours are

necessary to work of one day of imprisonment.

In this context one of the interviewees pointed out the current discussion on how to deal with people who are

unable to work, for example because of health issues. Those would need therapy and a close supervision of

social workers. The interviewee stated the question was whether therapy should be recognized as community

service. If this recognition wasn’t possible multifariously burdened people would be imprisoned. However, so

the interviewee, an adequate handling of these problems isn’t possible. Until now, however, discussion is at

the beginning.

28

With the electronic tag the Federal State of Hessia in 2000 implemented a measurement which doesn't only

avoid imprisonment but also observes the parolee. It mostly entails the technical surveillance of attendance-‐‑

time and absence-‐‑time in the apartment of the convict or accused and is accompanied by the local parole

service's pedagogical supervision. This measurement has been supervised and closely observed and evaluated

by the Max-‐‑Planck-‐‑Institute during the start-‐‑up period in the federal court in Frankfurt on the Main as well as

during the following implementation in the whole federal state of Hessia.

One of the alternatives to imprisonment is to postpone execution of a sentence in case of an offense caused

by drug addiction. If the convict starts therapy in an officially recognized institution, execution of sentences

up to two years can be postponed. The time spend in therapy can be taken into account, but only up to two

third of the sentence to serve.

According to article 46a of the StGB (German Criminal Code) victim-‐‑offender mediation can also be an

alternative to imprisonment. If the accused tries to initiate victim-‐‑offender mediation while in prison,

detention can be partially eased or shortened. Additionally the victim-‐‑offender mediation can be a condition

of probation and could therefore be seen as part of strategies to avoid imprisonment. However, in most cases

this is not the case. Most of the time imprisonment is not an issue when implementing victim-‐‑offender

mediation.

With regards to alternatives to imprisonment the NGO Hoppenbank e.V. in Bremen provides a service which

is used in other federal states as well. This measurement targets accused persons in pre-‐‑trial detention, who

don't have a permanent address and are therefore detained for reasons of the risk to escape. The service can

be used during or prior to detention. Bulletins in prison inform about the service and accused persons, who

want to use it write to the NGO. If they are suitable candidates, they get to leave pre-‐‑trial confinement, or get

to avoid it altogether and start living in therapeutic supervised accommodation. One of the ideas is to be

better able to prepare an accused person for trial.

Anti-‐‑violence-‐‑trainings can also be seen as part of alternatives to imprisonment. In Germany a lot of different

organizations offer such training programs. Participation can for example be recommended by the parole

officer or can be court ordered.

29

2. Strengths and weaknesses of alternatives to imprisonment

Additional focuses of the interviews were strengths and weaknesses of alternatives to imprisonment. With

regards to the strengths interviewees stressed the negative effects of imprisonment. It was stated that

imprisonment took the detained out of their social environment, for example family or friends. Also

imprisonment could entail the risk of losing work and apartment. If the loss of social ties could be avoided,

for example through alternatives to imprisonment, the effects on the relapse rate would be positive. Studies

showed that not only a fixed daily structure but also a healthy social environment has a stabilizing effect.

Furthermore, some interviewees thought imprisonment never to be a “really good idea”. Alternatives to

imprisonment allowed for work with the supervised persons. For example the offense could be processed, the

convicts could be opened to new future perspectives, and they could get help with searching a job or with

finding a place for treatment in case of drug addiction. They could get the possibility to learn self-‐‑control and

impulse control when going to anti-‐‑violence-‐‑trainings. That way, interviewees stated, it was better possible to

deal with the causes of respective offenses. The same intensity could neither be reached in pre-‐‑trial

confinement nor in imprisonment after trial. Though prison-‐‑employees were certainly dedicated, especially

pre-‐‑trial confinement is applied mainly in terms of custody, because its function is to ensure trial. Therefore

alternatives to imprisonment would possibly result in a better social rehabilitation and stabilization of the

accused persons. In the interviews it was stressed that alternatives to imprisonment had a more positive effect

on the relapse rate than imprisonment. This was especially the case for people, who were imprisoned for the

first time.

In addition the fact was pointed out, that a penal biography would better read, if there was no prison time or

there was at least an interruption in the arrest course.

Furthermore imprisonment had a negative effect in regard of a kind of criminal training. It gives inmates the

negative opportunity to teach each other how to become a more professional criminal next time.

One of the main aspects concerning implementation of alternatives to imprisonment in times of money

shortness is the cost-‐‑benefit-‐‑relation. Services entailing alternatives to imprisonment are paid for by public

funds. The NGOs present their business reports to the department of justice. The report states how many

days of prison were avoided through the measures of alternatives to imprisonment. In Bremen for example

the costs of one day in prison are 110 €. Partially these costs are even higher in other federal states. The costs

of one day in prison include for example staff costs, personal supply and health costs of the inmates etc.. If an

alternative to imprisonment is cheaper than prison a cost advantage is given which can contribute to relieve

prisons and therefore the justice budget. Interviewees stressed that alternatives to imprisonment were

economically more reasonable in comparison to imprisonment even though a high amount of supervision was

30

involved. One of the interviewee thought that the money saved because of alternatives to imprisonment

should be invested in the development of alternatives to imprisonment rather than go back to the state funds.

However, alternatives to imprisonment didn't only save money, but were also a possibility to earn money for

the state, for example with the project 'manage your funds instead of going to prison'. Additionally

imprisonment for failure to pay a fine was to be judged negatively because the penalty explicitly was a fine and

not imprisonment. When the convict is not able to pay, the sanction is replaced by cost causing

imprisonment.

Furthermore the difficulty of such a "simple", purely economic comparison of imprisonment and alternatives

to imprisonment was mentioned. Thus not only the economic costs originating from imprisonment and

alternatives to imprisonment has to be compared, but also the costs of further criminal activities with their

resulting costs for the justice system as well as the results caused by imprisonment which could not be

calculated in money.

Regarding the implementation of alternatives the look at the families as well as members of people who are

threatened by imprisonment is too rare in the opinion of an interviewee. Alternatives to imprisonment would

not only have a positive effect on the offenders, but also on the before mentioned groups. An arrest of fathers

or husbands could affect, for example, the income situation negatively. Therefore, imprisonment would

sanction not only the convicted, but also other people and the danger of new social problems would originate

from that. Therefore, alternatives to imprisonment would be meaningfully also for members for families.

During the interviews it also became clear, that the choice and the positive effects linked with alternatives to

imprisonment would depend on every single case. The question would be, which alternative to imprisonment

would fit perfect for which person. For example, people who are imprisoned because they couldn’t pay a

financial penalty would often have multiple problems. For example, some of them would not be able to

administer their finances or would be addicted to drugs. Because imprisonment as an alternative for failure to

pay a financial penalty is usually short it wouldn’t be possible to work in a satisfying way with the before

mentioned persons. Exemplarily it was mentioned that people with drug problems couldn’t be treated by

enforcement of 60 to 80 daily rates.

Beside the strengths and advantages of alternatives to imprisonment also concrete weaknesses or

disadvantages were mentioned during some interviews. For example, in this context the electronic foot chain

used in Hessia was mentioned. A component of the measure was the creation of a timetable which regulates

certain presence times, for example at home. The observance of these times would be controlled. So a

requirement for a convicted to use the electronic foot chain would be that the convicted must have a day

structure, possibly because of an employment. So therefore a

`best selection´ within this project would occur. The result would be that with this measure not every eligible

person could be reached, because personal requirements wouldn’t be given.

31

Furthermore some alternatives to imprisonment wouldn’t be attractive enough for some convicts. They would

prefer imprisonment, because there they would be good housed and cared for. Partly this would be linked to

the seasons. Additionally it was mentioned, that some alternatives to imprisonment would be too intense for

some persons. They wouldn’t be allowed by the social workers to rest and therefore prefer the imprisonment.

Sometimes convicted persons would also use alternatives to imprisonment only to be released from prison, to

achieve an easing of imprisonment or to avoid the payment of fines. If that would be the case, an effective

cooperation wouldn’t be possible any longer and it would be necessary to initiate other measures. Therefore,

with alternatives to imprisonment not all convicted could be reached. Within this context it also have to be

pointed out, that there are linguistic barriers sometimes. Offered alternatives to imprisonment, which

apparently often depend on an intense care situation, aren’t carried out in all languages, so that there can

possibly be a lack of foreign-‐‑language offers in this area.

Another mentioned disadvantage concerning alternatives to imprisonment is the dependence of the NGOs,

which are offering different alternatives to imprisonment, on the public budget. The public budget for these

NGOs would be scarce and every year a fight for the budget would take place. Therefore, NGOs would lack a

basic financing. The consequence would be that they partially would have to work with time limited jobs.

Though the jobs usually would be extended, the staff prefers to chance their jobs if they get offered

permanent jobs from other employers.

3. Framework of alternatives to imprisonment

Further questions addressed the working staff of measures for avoiding imprisonment. It seems that in this

working field primarily social workers, and presumably also psychologist are active. Some of them have special

further educations, e.g. a qualification to offer therapy for drug addicts. It seems to be important, that the

working staff would have a great deal of life experience, because they have to work with persons, who are

sometimes difficult to handle and also have a great but different deal of life experience. To endure the partly

heavy burden in this working field, the staff has to be “robust” accordingly and shouldn’t be afraid to work

with offenders. An interviewee pointed out, that otherwise especially young university graduates couldn’t

assert themselves if necessary against delinquent persons. It seems to be that the ability to give empathy is

another highly required qualification. An interviewee stressed, that the social workers could take the

perspective of the offenders. However, the people who are working in this field would have the required

skills. Also, the staff would need to continue their training to face and meet the changing social conditions

and problems. It should be noted, that the requirements for this working field seem to be very high. One

Interviewee made clear, that many qualified social workers wouldn’t like to work with prisoners, presumably

because of the tough burdens.

Thus, a necessary condition for the successful implementation of alternatives to imprisonment is already

addressed. Besides it seems to be important that there is a reliable NGO with fixed structures, which

implements the measures as agreed. One interviewee noticed, that alternatives to imprisonment failed,

because the measures weren’t implemented as agreed, e.g. regarding the density of care, so there would be

cases in which persons were left to themselves. If care is needed, it has to be guaranteed. In general, the

intensity of care seems to be a very important factor, because it was mentioned more than once by different

interviewees.

Another requirement for the successful implementation of alternatives to imprisonment may also be the

already mentioned cost-‐‑effectiveness. One interviewee reported about a cancelled measure, which was

directed to severely drug addicted persons. The staff costs were too high and the number of saved days by

the measure was too low. Therefore the expense wouldn’t be longer in line with the benefits and because of

that the measure was cancelled.

Within this context the financing of the NGOs was discussed again. As already explained, the measures of

the NGOS, are mostly largely financed by the public budget. Some statements of the interviewees led to the

conclusion that a solid and reliable basic funding is very important for the implementation of alternatives to

imprisonment.

Also it seems that the work of the NGOs depend on external actors. The relevance of external actors is

visible when you look at community service. Because the number of possibilities to do community service is

fluctuating and is used by different institutions there would be a competition concerning the available

possibilities to do community service. Because of the partly high demand, the availability of community

service can`t be ensured sometimes. In this context the more than once expressed relevance of a good and

reliable cooperation between the relevant actors should be mentioned.

Regarding the framework of alternatives to imprisonment, one interviewee criticized, that some NGOs –

which are working in the field of assisted alternatives to imprisonment -‐‑ would get under pressure, because

of specific forms of cooperation with state agencies. The critic specifically was about the case-‐‑related

exchange of information. With the case-‐‑related exchange of information the affected persons as well as the

NGO would be discontented. There would be pressure to conclude cooperation arrangements with the

parole service, the justice and possibly the police. But this has to be evaluated by federal state to federal state

differently. The question would be, to what extent the NGO would offer alternatives to imprisonment for

the justice under their conditions, e.g., concerning exchange of information or oath of secrecy exemption.

Too close cooperation between the actors and agencies could result in the problem that some people would

prefer detention; because they wouldn’t want that their personal data is widely distributed.

In this connection also the judicial basic conditions for alternatives to imprisonment have to be considered.

During the interviews it became quickly clear that these can differ, depending on the concrete measure.

Nevertheless, basically the regulations of the German Criminal Code, the German Code of Criminal

Procedure and the German Penal Code are relevant. Because the juridical basic conditions were already

described in the German report on the literature analysis, the diversity of the just mentioned different basic

conditions is outlined in this report only with the help of some examples.

As described at the beginning of this report, the measures for avoidance of short term imprisonment take an

important role in Germany, in particular the possibility to pay the debt by community work. In this

connection basically the article 293 “Abwendung der Vollstreckung der Ersatzfreiheitsstrafe und Erbringung

von Arbeitsleistungen“ of the Law introducing the German Criminal Code (EGStGB – Einführungsgesetz

zum Strafgesetzbuch) is relevant. Article 293 EGStGB authorises the governments of the federal states „to

make arrangements […] by statutory order after which the enforcement authority can allow the convicted to

turn away the enforcement of a short term imprisonment after sec. 43 of the German Criminal Code by

community work. As far as the convicted person has completed the community work, the short term

imprisonment is dismissed. The work must be for free; it may not serve economic purposes. The

governments can transfer the authorisation by statutory order on the federal-‐‑state administrations of justice

department.“ For Bremen the so called Bremian "fine erasure order" (GStrTilgVO) has to be mentioned,

which exists in similar form also in the other German countries. According to this order four hours of free

work in community service have usually to be performed for the erasure of a daily rate of the fine.

Other norms are relevant concerning the possibility to put back the sentencing of convicted persons, who

have committed their crimes because of drug addiction. They can be credited to serve their time in therapy

up to a maximum of two thirds of the penalty in an accredited institution. Relevant are sec35 „

Zurückstellung der Strafvollstreckung“ as well as sec. 36 „ Anrechnung und Strafaussetzung zur Bewährung

“ German Narcotics Act.

After the question regarding the existing juridical basic conditions to the use of alternatives to imprisonment

it was also asked for possible existing legal gaps. Nevertheless, basically there doesn’t seem to be those.

However, an interviewee mentioned that some the delinquent people with multiple problems aren’t able to

do community work. Instead, they would have to do work-‐‑therapies. In this connection another

interviewee explained, that concerning imprisonment in default of payment of a fine the work therapy is

not recognized as community work. Therefore there might exist a gap in the legal framework, but that only

would concern a single group.

Another note regarding gaps in the legal framework for the implementation of alternatives to imprisonment

related to the drug counselling in pre-‐‑trial detention. Over and over again in procedure it would be deplored,

that the drug counselling isn’t perfect within the prisons. A legal order would possibly contribute to the

improvement of the situation. This order would have to be part in the penal execution law. In this context it

has to be mentioned, that the federal states can form their penal execution laws independently.

Furthermore it was mentioned, that at the beginning of the 21th century there was the idea to include

community service as a specific penalty inside the criminal law. And finally as mentioned before a proper

federal regulation for the electronic foot chain doesn’t exist so far.

4. Target groups of alternatives to imprisonment

In the Interviews also the main target groups of alternatives to imprisonment were discussed. The question

was asked, if there are alternatives to imprisonment which are especially useful for specific offenses. It has to

be mentioned that interviewees pointed out that in each individual case the use alternatives to imprisonment

has to be examined. A “perfect” alternative to imprisonment wouldn’t exist and should depend on the

individual problems of the affected persons.

Interviewees expressed, that the use of pre-‐‑trial detention depends on the severity of offenses. For example,

it is used in cases of murder or manslaughter. In these cases, a more severe sentence is expectable, the

incentive of escape is high and therefore alternatives to imprisonment would be rather unsuitable. However,

such cases are rare. In addition, there would exist serious crimes, such as sexual or violent offenses, which

would trigger a need for treatment. Often, however, the acceptance for such a treatment isn’t given.

Therefore the imprisonment is needed to work with convicted within a structured and controlled treatment

setting to improve the acceptance for further treatments.

In the field of fare evasion or petty offences alternatives to imprisonment seem to have a higher relevance. In

such cases the criminal behavior isn’t in the foreground but the lack of life skills. The offenders couldn’t

organize their life in an appropriate manner, because of their multiple problems. Accordingly, for example,

fare evasion is an offense which is suitable for alternatives to imprisonment. But it seems that not every

alternative to imprisonment is appropriate. For example the victim-‐‑offender-‐‑mediation isn`t very suitable to

avoid imprisonment for failure to pay fine, since in this area usually property offenses, such as shoplifting,

play the central role.

The next question asked on whether there would be offenders, who are more suitable than other offenders

for alternatives to imprisonment. An interviewer stated that some remand prisoners aren’t suitable for

alternatives to imprisonment. As an example traveling foreign offenders were mentioned. Alternatives to

imprisonment couldn’t make a contribution to ensure their presence at the trial, as the risk of escape would

be too high.

At the district court the majority of people, who are affected by remand imprisonment have drug problems

and no permanent place of residence. For these people alternatives to imprisonment would be suitable. The

focus of such measures should be to deal with these multiple problems. Alternatives to imprisonment could

help to establish, for example, structured daily routine, new social contacts outside the drug scene and help to

fight the addiction. The procurement pressure is thereby reduced and the legal proving is promoted.

Nevertheless, partially some of them are persistent offenders. In these cases the use of alternatives to

imprisonment would be more difficult.

Moreover, alternatives to imprisonment are suitable in particular for persons, who are affected by

imprisonment for failure to pay fines. As already shown, these people show often different problems, which

could be treated better within alternatives to imprisonment.

5. Relevant actors and perspectives

Other questions focused on relevant actors and perspectives regarding the use of alternatives to

imprisonment. It seems that the prosecution plays a key role in this context. According to sec. 451 German

Code of Criminal Procedure sentences should be executed by the public prosecution office as the executing

authority. The public prosecution office is the executing authority for judgments and penalty orders which

are imposed by the criminal law for adults. Mainly responsible for the execution of sentences are the so

called law enforcement officers. The prosecution decides about alternatives to imprisonment, communicates

with private institutions, which are offering alternatives to imprisonment, and mediates convicted.

Furthermore, it is possible to initiate alternatives to imprisonment from within prisons, to reduce the length

of imprisonment. To suspend or postpone the execution of the sanction for the purpose of carrying out a

therapy, the prison has to bring in the court or the prosecution. The required process has to be prepared by

the prison. The prison has to check if the legal requirements are met and if the therapy is guaranteed. Then

the court or the prosecution will decide about the application.

The social services of justice in its function as probation assistance are relevant for early releases from

imprisonment, after a part of the prison sentence has been served. In coordination with prisons and the

prisoners the social services of justice have to prepare the release from prison. Their function is described for

example on the website of the social services of justice in Bremen as follows: „In the criminal law for

juveniles and for adults we provide probation service. We provide consultations and assistance to improve

the situation of affected persons. The probation service helps, consults and supports its clients during the

duration of the probation period. The aim of the activity is to allow these people a future without further

crimes. The following principle has priority: `Helping people to help themselves´. In addition, the probation

service supervises by order of the recognizing courts the fulfilment of conditions and instructions, assets and

offers, which were appointed by the court within the scope of the penal suspension.“1 So that the social

services of the justice can fulfil their activities, they closely co-‐‑operate with prisons, courts, private

institutions and other state facilities.

Regarding the question about the role of NGOs the Freie Träger were mentioned. While the social services

of justice in Germany are state institutions, which are partly structured differently within the federal states

and subranges like the probation assistance are occasionally privatized, the Freie Träger are associations

which receive public funds for their services. These NGOs perform different tasks and offer a variety of

integration assistances. For example, they provide convicted persons into community service, accompany

convicted persons upon instalment payment of imposed fines, accompany them in group homes or run

victim-‐‑offender-‐‑mediations. The NGOs would be lobbying for their interests and would fight for example

for alternatives to imprisonment or the reduction or the shortening of detention. They could bring in their

point of view in different ways, for example in hearings in legal committees.

To sum up, the following actors seem to be relevant concerning the use of alternatives to imprisonment:

• Public prosecution

• Court for the Execution of Prison Sentences

• Lawyers

• Courts

• Probation Service

• Magistrate

• Social services of justice

• Prisons

• NGOs (“Freie Träger”)

Also the perspectives of victims regarding the use of alternatives to imprisonment were discussed within the

interviews. It seems that these perspective isn’t very important at this moment and that

1 http://www.sddj.bremen.de/sixcms/detail.php?gsid=bremen59.c.1464.de

the relevance depends on the offense. For instance, one interviewee pointed out, that the execution of

custodial sentence isn`t victim-‐‑related. However, in Nordrhein-‐‑Westfalen such efforts are taking place.

Furthermore the victim’s perspective seems to be relevant regarding the victim-‐‑offender-‐‑ mediation,

which can also be seen as an alternative to imprisonment. Besides, the victim’s perspective would be

crucial, if the imprisonment is loosened for the preparation of an untimely release. In this case the penal

institution would communicate with the social services of justice and maybe with the court and check

with them the need for directions and instructions to prevent the contact between victim and offender. In

this context it has to be mentioned that according to sec. 406d German Code of Criminal Procedure

victims of crime has to be informed on application about firstly granted loosening’s of imprisonment and

conditional leave. Furthermore, the victim’s perspective is taken probably into account when the criminal

offense is dealt with. But the position of the victims will be improved by the legislator in 2015 in order to

comply with the European Victims’ Directive.

In this context also the offenders were mentioned in the interviews. As already shown some convicted

persons are abusing alternatives to imprisonment to get free from prison. If alternatives to imprisonment

can work well, the convicted persons must work in a good way with the respective NGO.

With regard on further perspectives on alternatives to imprisonment one interviewee differed between

open and closed imprisonment. Although open imprisonment couldn’t be counted as an alternative to

imprisonment it could mitigate the negative effects caused by imprisonment. Within the open

imprisonment, for example, it would be possible to make an educational qualification or training.

However, the independent educational institutions would hold back with their offerings in this regard.

Within the closed imprisonment it would only be possible to make an educational qualification or training

if the sentence is long enough. In addition, open imprisonment would cost less than closed

imprisonment.

Furthermore, it was argued that the people, who are measured with alternatives to imprisonment, should

take more responsibility. The subject matter was whether the NGO or the convicted person should

inform the competent authorities about the implementation of the measure. According to one

interviewee, this task should be performed by the convicted person.

A point of criticism was also directed at the selection procedure of the NGOs. Partly persons with a good

prognosis would be chosen for alternatives to imprisonment while difficult cases with a not so positive

prognosis would be sorted out. This serves in order to be able to show high success rates.

Additionally the proposal was presented to pursue advertisement for alternatives to imprisonment. Those

alternatives would be good socio-‐‑, legal-‐‑ and domestic policy strategies, which shouldn’t be only

considered under an economic perspective. In one interview it was criticised that the media partly would

report negatively on alternatives to imprisonment.




Union

Alternatives to imprisonment in Italy

Giorgia Stefani Associazione Comunità Papa Giovanni XXIII

Aim of the report

This report is based on semi-structured interviews with experts in different sectors of the Italian Criminal

Justice System. The aim of the interviews was to contribute to:

-‐ Integrate the knowledge on different non custodial measures;

-‐ Identify and assess different practices of alternative sanctions;

-‐ Gain useful information and criteria to assess and select the best practices.

on in this report is based on the opinions of 5 experts, their views do not represent any official position

of any governmental or non-governmental organisations.

Method

Five people agreed to take part in a semi-structured interview. The persons were selected for their

professional status and knowledge of and extensive experience in non-custodial measures. Interviewees

were informed about the nature of the interview and were provided with an overview of the questions to

be addressed in advance. They were also informed that the participation was confidential and anonymous.

The interviews were about 1.5 hours in length.

Interviewee profiles

Interviewee 1: senior volunteer with 20 years of experience on rehabilitation program for offenders

serving non-custodial sentences.

Interviewee 2: criminal lawyer, expert on non custodial measures.

Interviewee 3: President of the Surveillance Magistracy.

Interviewee 4: member of the Italian Chamber of Deputies and of the Justice Commission of the Italian

Parliament.

Interviewee 5: social worker in a local office of the penitentiary administration, responsible for the

implementation of non-custodial measures (UEPE-Ufficio Esecuzioni Penali Esterne)

1. Typologies of alternatives to detention

1.1 Pre-trial alternatives

The alternatives to detention might be implemented before and after a trial. The Italian Code of Criminal

Procedure establishes “precautionary measures” to protect specific situations when it is not possible to

wait until the final sentence.

The precautionary measures that restrict personal or juridical freedom of an individual are called personal

precautionary measures.

Among these measures, the experts identified house arrest, prohibition or duty to dwell in a given place

and probation as the most relevant types of alternatives to detention.

House arrest allows the accused to serve a term of imprisonment at home without leaving it.

On one hand, the duty to dwell in a given place requires that the accused does not leave his/her usual

living place without the authorization of the judge. On the other, the prohibition of dwelling in a given

place demands that the accused neither lives nor gets access to a specific location without the

authorization of the judge.

Through probation, introduced by the law 164/2014, but already used in the juvenile proceedings, the

accused is allowed to ask for a trial suspension along with a supervision of his/her behaviour. Thus, the

accused may ask for going under social service custody in order to take part in a re-education program

which consists of community services or voluntary works aimed at repairing his/her damage to the

society. If the accused succeeded in this rehabilitation path, the crime would be cancelled. If not, this

measure would be withdrawn.

The experts agree on considering that the most efficient alternative to detention, among the above-

mentioned ones, is probation, which is not implemented very often may be because of its recent

introduction in the juridical system. Probation allows indeed the accused benefitting from social re-

integration and finding a remedy to the committed crime through community work with no

remuneration. In this way, the accused provides a real proof of the full recognition of his/her mistake.

House arrests should not be easily granted because they do not allow the individual to start a

rehabilitation path, as they are quite limiting, and do not activate the participation to a specific

rehabilitation path. Therefore, they do not join social defence needs with the ones of a socio-educational

treatment.

Moreover, an expert pointed out a contradiction regarding the Italian juridical system: when sentences

become definitive, the accused who was granted a precautionary measure must go to prison anyway,

regardless of the success of his/her rehabilitation path in a specialized structure. This is considered a

“legislative nonsense”, which makes the conviction system heavier and damages psychologically and

pedagogically an individual who had started a re-educational path before being forced to stop it.

1.2 Post-trial measures

Post-trial alternatives to detention are more numerous than the pre-trial ones. The experts identified the

following ones as the most relevant: partial release from prison, home detention, the assignment of

offenders to social services on probation, therapeutic assignment of drug or alcohol-addicted and

conditional release.

Partial release from prison requires that the condemned spends part of his day outside prison in order to

participate to working, educational or rehabilitation-related activities.

Home detention allows the condemned to stay at home, in another private place or in a public structure,

which provides care or help.

The assignment of offenders to social services on probation, the most frequent alternative to detention,

takes place outside the prison and consists of the assignment of the condemned to a social service for a

period equal to the one of the punishment decided by the judge. If the condemned is a drug or alcohol-

addicted who needs a path of rehabilitation, he/she can be assigned to a structure specialized in

therapeutic recovery.

Conditional release allows the condemned to spend the remaining imprisonment period on probation, in

order to facilitate social re-integration.

According to the experts, the most applied measure, among the previous ones, is home detention,

although this is not considered the most appropriate, since it only requires that the condemned stays into

the domestic environment.

The most effective measure is considered the one that requires the condemned to make the effort of

being autonomous and responsible, according to a personalized project. The experts agree on the fact

that the assignment to social services is the one that presents these features the most.

1.3 Development and implementation of alternatives to detention

In Italy, new types of alternatives to detention are hardly introduced, since brilliant minds often go

together with little pragmatism.

According to the sector professionals, the most revolutionary alternative to detention is represented by

the APAC method, which is characterized by the absence of arms and police. A group of Brazilian judges

have experimented it for 40 years and its relapse rate amounts to 10%, while the one characterizing

common prisons is equal to 70%. The model recognizes an almost absolute autonomy to prisoners, who

have the keys of their cell and of the penitentiary main doors. Volunteers, who are in charge of the prison

units, guarantee the security of the penitentiary together with the prisoners themselves.

Thus, following these principles, interviewees think that most appropriate alternatives to detention should

focus on the person.

According to an expert, in the practice, it would be necessary to join the study of the person, which

characterizes the assignment of offenders to social services on probation, with the role of labor, which

characterizes community services, and, simultaneously, to stress the aspects of repairing the damage. The

combination of these three elements lies into the suspension of the criminal trial on probation, which also

deflates the penal trial for minor crimes.

Another professional argued that it is time to start talking about the concept that Alessandro Margara1

defined as “social detention”, which conceives the presence of several structures and physical locations

where prisoners can understand the reasons why they committed their crimes thanks to the help of

qualified personnel. The same expert pointed out that the biggest problem of prisoners lies into

loneliness, since prisoners need to be supported during the resolution of their problem. This is something

that detention does not provide. Services that are present in the territory also constitute a wide, well-

1 President of the Department of Penitentiary Administration from 1997 to 1999.

articulated panorama, which is characterized by different accessing rules. Thus, they are not accessible to

everyone.

The Italian Constitution (art.27) also states that the punishment should re-educate the condemned. The

experts agree on saying that Italian prison system does not comply with the re-educational aim, especially

when there is a situation of prison overcrowding. Working, studying and professional training in jail also

cannot be fully successful for all the prisoners, in spite of the good will of volunteers. This leads to

consider alternatives to detention as the only tool to realize the social rehabilitation of prisoners.

Therefore, the statistics on the relapse rate show that those who were in prison are more likely to commit

a crime again than those who were able to get access to other environments and/or to working.

Then, serving a sentence outside prison helps people develop their skills, as well as lower their chance of

relapsing into committing a crime, because they are demanded to improve their problem-solving ability

and to be time-constant. This is not possible when being in prison.

The most frequent reasons why alternatives to detention are planned and implemented are mainly

educational, since they try to achieve a rehabilitation aim, and economic, as these alternatives represent

lower public expenditures.

Unfortunately, in Italy, the development and the implementation of the alternatives is not supported by

institutional actors, neither at central nor at local level. According to the experts’ opinion, alternatives can

be successfully implemented only when the Juridical Authority brings about a consultation activity

through making agreements with human and economic resources in the area.

The current legislation, the Italian Penitentiary Act, is the result of a particular historical moment, when

there was the willingness of turning the system around, even though this effort was not accomplished,

and the necessary modifications, however, were never inserted. An expert argued that nobody had never

asserted in public over the years that data showed that the relapse rate of those who were assigned to

social services was lower than the one of those who were incarcerated and that this piece of information

is known only among those working in the field of alternatives to detention.

Another professional stressed that there is much ignorance regarding detention and alternatives to

detention and there is also the refusal of opening a debate and considering it one of the most compelling

issues to be addressed. The restrictive aspects of the alternative measures, as well as their execution, are

quite unknown to the civil society.

Common people usually think that that the problem of prisoners is something that should be removed. A

big part of politicians go after this social vision, which tends to separate the good from the bad, since

detention is seen as the only solution to a behaviour that must be condemned and sanctioned. Because of

this short-sighted idea, new positive experiences do not usually emerge.

2. Strong and weakness points

2.1 Advantages and drawbacks

The experts agree on the fact that the most important advantages of alternative to detentions are

economic. On one side, they are currently free for the Italian State2, on the other, the cost of a prisoner

amounts to 123,78 Euros per day3. Beyond their “cheapness”, people who served a sentence through an

alternative measure are also those characterized by a lower relapse rate, which is estimated to be around

7%4. People who go out of prison without going through an alternative experience show a relapse rate

around 80%. These ones are usually involved in a vicious cycle if there are no measures that improve their

social inclusion.

Experts identify the weakness points of alternatives to detention with the rigidity of the law towards their

concession5 and the lack of institutional, personnel and economic resources both outside and within

prison. In fact, social workers and educators working with condemned people, who are fundamental to

implement these measures, are usually just a few. The same problem characterizes surveillance judges.

Some of the experts think that this problem is due to a “prison-based” vision which characterized the

penitentiary administration in the last twenty years. Because of this idea, investments were directed to

security, prisons and penitentiary police, and not to educators, social workers, communities and

surveillance judges. Another limit concerns foreigners who are in Italy illegally and do not have a “permit

to stay” (residence permit). They are not allowed to move freely throughout the national territory, but, in

spite of this, have the chance of serving a sentence through an alternative measure. However, when the

period of the sentence is over, the illegal individual should be expelled. This is considered a huge

contradiction by the experts.

2.2 The usefulness of a comparison

The experts argue that the strong points of alternative measures in comparison with traditional forms of

imprisonment are quite clear-cut.

Alternative measures are cheaper than detention on a costs/benefits perspective. Alternatives are also

considered more constructive and not only restrictive. Therefore, they have an active and beneficial role,

which is usually missing in prison. The clear unbalance between the amount of penitentiary police and the

educational personnel (educators, social workers, psychologists) is widely criticized. This continuous

investment in the police staff over the years let the aspect of security prevail over the one of

rehabilitation.

2 In a structure receiving public funds, a detained would cost around 50 Euros per day. 3 Ministry of Justice, 2013. 4 This rate is just estimated, since, currently, there is no official and updated data regarding the relapse rate of those who are granted an alternative to detention. 5 Art. 4 bis l. 354/75, Prohibition of granting alternatives to detention and verification of the social dangerousness of offenders for some crimes.

According to professionals, alternatives have always invested on a highly-qualified personnel who is able

to do its job: during the external penal execution almost all the operators are social assistants, who are

usually highly motivated and supported by the volunteers organizations.

The punitive element is considered present within as much as outside prison. Although the impact of

prison is probably believed harsher (as a “smash”), it is true that the alternative measure is not a prize : in

a rehabilitation context , this might also be tougher than traditional detention.

This concept is, however, difficult to understand for both the victim of the crime and society: it is a

common opinion among the interviewees that the victim feels safer if the offender is in prison rather than

at home or in a community. The penal mediation is not part of the Italian penal system, in spite of

positive experiences in the juvenile proceedings. However, there are volunteers organizations that offer

specific paths of mediation between the victim and the offender.

Nevertheless, society cannot go beyond the equation punishment-prison yet. Everything that does not

have a revengeful value is considered “a prize”. Two experts argued that there is the necessity of starting a

cultural process that does not only emphasize the punitive goal of the penalty.

Moreover, there is no doubt that alternative measures are much more respectful of human dignity. It is

sadly known that Italy was condemned for the violation of the article 3 of the Convention of Strasburg,

which establishes the prohibition of torturing and applying inhuman or degrading punishments or

treatments, through a sentence of the Court of Strasburg issued on 8th January 2013 in the case Torreggiani

e altri c. There were 7 appeals by an equal number of detained in accordance with article 34 of the

Convention for the Safeguard of Human Rights and Fundamental Freedoms. The denounced conditions

regarded personal space in cells equal to 3 squared metres, the lack of water and light. The same sentence

also prescribed which the conditions of prisons should be and which structural interventions should be

done to fix this situation. Thus, Italy has approved laws that establish compensative remedies for those

who suffered from these treatments with the aim of not being considered a torturing country.

3. Key actors involved

3.1 Access to alternatives: target group and specific profiles

The access to alternatives to detention is mainly determined by the seriousness of the committed crime. It

is allowed for crimes of minor relevance.

According to the law “Simeoni-Saraceni” issued on 27th May 1998 n.165, the access to alternatives is

granted to condemned who are either outside or within jail. The latter category gets access to alternatives

directly without having to go to prison.

This path, currently regulated by the article 656 of the Code of Criminal Procedure, is aimed at avoiding

the de-socialising effects of detention as much as possible and enhancing a concrete process of social

rehabilitation and reintegration.

In the professionals’ opinion, these measures are mostly granted to small drug dealers, not violent

thieves, scammers, … who usually commit the crime to survive.

There is no doubt that, ceteris paribus, the Italian convicted are granted alternatives measures more often

than foreigners. Experts attribute this disparity to their lack of positive reference points on the national

territory (a family, a job, a permanent residence) to the fact that, if they are illegal, they are expelled from

the State. The difficulties related to language and culture diversity represent an obstacle to the chance of

serving a sentence outside a penitentiary.

Experts agree on the fact that the one of drug-addicted is the most studied category. At the beginning of

the eighties, there was the implementation of alternative paths that allowed these subjects, who

skyrocketed in prison during those years, to serve their sentence in a therapeutic community, in order to

fulfil the needs of punishment and recovery. Prison was indeed unable to give assistance to the huge

number of people who were convicted and suffered from a dependency on drugs.

There is a specific law protecting the rights of drug-addicted, which is a sub-section of the Criminal

Procedure Code and is very different from the one characterizing common offenders; some experts

considered this distinction a paradox, because it is discriminatory against the latter ones.

3.2 The victim

The victim is not involved in the procedure of execution of the alternative measure. With regard to the

assignment of offenders to social services, the law states that “the individual who is under probation should act in

support of the victim of his/her crime as much as possible and should meet the requirements of familiar assistance”.

One interviewee recognized that our country does not have a culture of the victim: this may be due to the

fact that the legal administration evaluates the activity and the productivity of the judge in a quantitative

way and does not allow taking into account the victim, unless he/she sues the accused for punitive

damages. There is need for a cultural change to modify this custom in order not to be indifferent towards

those who were damaged.

It is important that the structures that offer alternative measures help the person repair his/her damages

and make a path together with the victim. The reparation of the damage is indeed not enough when it

concerns murders and is just symbolic when it regards crimes against property. The willingness of the

condemned of repairing the damage caused to the victim should also be considered when the Court

decides whether to grant or not an alternative measure.

4. The role of the NGOs and private citizens

The role of NGOs is fundamental to offer real and concrete alternative measures. In the Italian regions,

some organizations of the civil society prepared specific educative and inclusive programs that are useful

as alternatives to detention and in other fields regarding social need.

The interviewees share the opinion that serving a sentence outside prison is implemented by services that

are well-connected with the local context and are able to offer actual and concrete alternative paths and

invest human resources that are specialized in managing reintegration and rehabilitation paths.

However, on one hand, volunteer services in prison are quite a robust practice, on the other, they are not

very present in the context of alternatives to detention.

The Italian public opinion considers conviction institutes the most appropriate way to serve a sentence

because they feel that this context is safer and more likely to deal with criminals and the reduction of the

criminal rate. This context denies the possibility of a sudden change of the collective mentality. It is

necessary a gradual shift and an improvement of the public opinion’s awareness towards a rational

reaction rather an emotional one.

5. Actors involved during the sentence and their influence

When the sentence is definitive, the condemned, provided that there is no suspension of the sentence, is

subjected to the jurisdiction of the Surveillance Court (located in each district of the Corte d’Appello,

Appealing Court). The Court consists of all surveillance judges working in the district and honorary

judges who are expert of psychology, social service, pedagogy, psychiatry, clinic criminology and

professors of criminological science.

Every decision of the Surveillance Court can be appealed to the Cassation Court by express constitutional

provision.

The path aimed at applying an alternative measure is the following: the prosecutor (“Pubblico Ministero”)

suspends the sentence for 30 days through an administrative order, as the 656 article of the Penal

Procedure Code establishes. During this period, the condemned and the defence attorney are notified of

the order of execution and the procedure of suspension. They can make the request of alternative

measures in this period. The request should be presented to the prosecutor , who will send it to the

Surveillance Court which will decide whether to grant or not the measure within 45 days on the basis of

the evaluations of the individual (the residual social dangerousness, the behavior in prison, potential

relations with organized crime) and objective features.

Therefore, according to the opinions of one of the interviewees, the one who decides is the judge and

his/her culture: his/her decision can be indeed affected by mainstream ideas, potential prejudice or

stereotypes.

6. Actors involved in the implementation of alternative measures

The fundamental actors who enable the alternative measure procedure are educators, social workers,

psychologists and volunteers working in prison. A fundamental role is played by social services, under the

surveillance of U.E.P.E. (“Uffici per l’ esecuzione penale esterna”), which are territorial and operative

centers of the penitentiary administration.

Their main field of intervention is the one relative to the execution of sentences outside prison and

alternative measures to detention; in order to accomplish these goals, they develop and put forward the

potential treatment program of the offender to the judges and verify the correct execution of those who

were admitted to these measures and sanctions. Their tasks are indicated by Article 72 of the law held on

26th July 1975 n.354 and by the other norms regarding penal execution. They belong to four main areas of

intervention:

• Activity of helping and monitoring people who are under probation or assigned to social services

and supporting those who are home detained;

• Execution of social utility works and sanctions that are substitutes of detention;

• Inquiring activity regarding the individual and familiar situation of those subjects that ask for

being admitted to alternatives measures to detention and to probation;

• Inquiries aimed at changing, extending or cancelling security measures, upon request of

surveillance judges;

• Consulting activity to penitentiary institutes to favour the good outcome of penitentiary

treatment;

While accomplishing this activity, U.E.P.E. intervene in the territory with a logic of proximity to local

communities and cooperation with:

• Local entities, volunteers associations, social cooperatives, other public and private agencies in

the territory, to achieve a reintegration and social inclusion;

• Police to oppose criminality and maintain public safety.

Currently, there are 58 U.E.P.E. at a national level and there are 29 peripheral offices. Within these

centres, there are different professional figures, such as directors, social assistants, psychologists,

penitentiary policemen, administrative employees, accountants, auxiliary personnel. There is also

voluntary personnel for the reinsertion activities of people who are condemned to external criminal

execution.

7. Necessary conditions to implement alternatives to detention

7.1 Availability and efficiency of alternatives to detention

The interviewed experts agree that the most efficient alternatives to detention are already present in our

country, although they should be improved.

The juridical framework of reference is represented by the penitentiary set of rules (l.354/1975) that has

been updated with the passing of the years, and the Italian Constitution, which is the guiding light, and

the European law, which is the “supranational constitution”.

The interviewees identify the main legislative gap with the excessive preclusions to the grant of

alternatives.

The topic of the electronic tag is quite controversial. Two experts believed that this is an excellent tool,

which should be extended to favour the implementation of the alternatives, and they do not understand

why this device is not widespread in Italy, as it would allow police to use their human resources

differently.

According to another expert, the use of electronic tag depends too much on its availability. In fact, the

judge should decide whether to grant or not the alternative considering the procedural documents, not

the availability of electronic devices. This is quite a serious concern, since personal freedom cannot rely

on a pure mechanical and organizational issue.

7.2 Necessary conditions for an effective implementation

An expert argued that it would be necessary that State decentralizes and constitutes a central site of

probation, which has specialized personnel and the duty of managing all the alternatives.

Another interviewee said that the role of private no-profit entities should be recognized as a re-educating

one, according to what the Constitution prescribes: the legislator should intervene to create a network

among various subjects and put them in the condition of working efficiently and pursuing the re-

educative aim of the sanction. An organic State legislation would spur to the development of

rehabilitative centres which are able to contain a good part of the Italian prison population.

8. Suggestions to identify and evaluate good practices

Experts believe that a good practice of an alternative to detention is the one that is realized if you know

the person, the personality of the condemned, and the path that he/she is going to follow. Thus, the

good practice should allow a revision of the committed crime taking into consideration the past

experiences, the personality of the individual and the type of violations that he/she did. The experts

mentioned two examples of good practices:

- C.E.C. (“Comunità Educante con I Carcerati”) an incremental path, implemented by the

Comunità Papa Giovanni XXIII, which is designed for ordinary prisoners who have

been granted an alternative measure aimed at re-educating the condemned. The path

consists of open houses, with no specific restrictions and is divided into three phases. In

the first one, the person admitted to the alternative measure knows the proposal in

details and signs a contract in which he/she expresses his acceptance of the educational

project. In this phase the main activity is constituted by the work therapy and

educational and reflection moments in order to deepen and acquire values in line with

rights and legality. Contacts with the external environment are minimal to favour a

reflection time, in which the offender should choose to change. In the second phase,

working is not just a creative and therapeutic moment, but tends to professionalize the

individual, through the activation of small laboratories aimed at teaching a profession.

There is also the possibility of interning for external cooperatives and companies. There

is more time for relatives’ visits. In this phase, there is the involvement of the victim and

a potential compensation is thought.

In the third and last phase, there is the access to the job market, contacts with familiars are constant and

educational moments become less. According to the judge, the final part of the penalty might be in an

appropriate specialized structure of the Association. The length of each phase varies according to the

typology of the crime and the person. According to the current laws, a successful path allows the

reduction of the sentence and the progress of the phases. If some detained behave against the rules, there

is a retrocession of the phases and, in some serious cases, a compulsory comeback to prison.

- Project ACERO, implemented in 2013-2014 by the region Emilia Romagna, the

regional education agency for penitentiary administration and the Surveillance Court in

Bologna to favour the social and working reintegration of detained. The project is

designed for ordinary prisoners who did not have the chance of having an alternative

granted unless they were accepted by a community, since they had no family or home.

Instead of serving their sentence in prison, they have been hosted in accommodation

facilities which are able to grant a continuous support to social reintegration. “ACERO”

comes from the fusion of two words “acceptance” (in Italian, “accoglienza”) and “work”

(in Italian, “lavoro”). The aim of the project – funded by the Cassa delle Ammende

(which is the office of the department of penitentiary administration) and the Region

(Departments of Social Policies and Labor)- was to strengthen competencies and

abilities of condemned admitted to alternative measures or detention in order to make

them acquire and reinforce their level of autonomy and reduce or limit the risk of

relapse.

The practices which have been considered unsuccessful are:

- House arrests and home detention, since they do not have a rehabilitative aim;

- Law 199/2010, known as “sfolla-carceri”(evacuate-prisons), which introduced the

possibility of serving a sentence -which does not last more than 18 months (the initial

limit of one year was increased by the law 211 held in 2011), also if it is the residual part

of a longer penalty- at home or in another private or public place of care, assistance and

accommodation. An expert argued that where the Ministry of Justice allocated more

funds, more people were granted alternatives and, therefore, that freedom cannot be

conditional on the allocation of funds.

- All the alternatives that are too indulgent and not very severe. The alternative is not a

prize but a serious and severe path involving the guilty person.

As a conclusion, according to the words of an interviewed expert “There is no need to impose obstacles

to those who believe in alternatives to detention because these solutions are cheaper and more effective

not just for the condemned, but also for the whole society”.




Union

Alternatives to imprisonment in Latvia

Sanita S�le Centre for Public Policy PROVIDUS

1. Introduction In the Latvian system of criminal sanctions deprivation of liberty is not considered to be the “main

sanction” for which one can search for alternatives. Deprivation of liberty is applied as the most serious

criminal sanction for serious and especially serious crimes. This is why there is no such concept as

“alternative sanctions” in the Latvian criminal justice system, but there are sanctions without person’s

isolation from the society as well as several ways to apply for release prior to the completion of a

punishment of deprivation of liberty in prison. 6 Similar is situation with pre-trial alternatives to

imprisonment as the law foresees division between security measures related to deprivation of liberty and

security measures that are not related to deprivation of liberty.

In order to integrate and further expand the knowledge on different non-custodial measures in Latvia; to

identify and assess different practices of alternative sanctions as well as to gain useful information and

criteria to assess and select the best practices7, there were five in-depth interviews with Latvian key stake-

holders held between 29th of September and 25th of November.

Each of five interviewees represented different sectors of Criminal Justice system – interviews were held

with a member of parliament, a judge, representative of Ministry of Justice, State Probation Service and

Prison Fellowship Latvia. Choice of key stake-holders proved to be successful as all identified good

examples of alternatives to imprisonment were fully analysed and evaluated. Each interview was held in

accordance with the guidelines provided by Synergia and summarized in a form for the mapping of

existing practices on alternatives to imprisonment.


2.1 Pre-trial alternatives to imprisonment

The following security measures are foreseen in Criminal Procedure Law8: notification of the change of

the place of residence; reporting to the police authority at a specific time; prohibition from approaching a

specific person or location; prohibition from specific employment; prohibition from departing from the

State; residence in a specific place; personal guarantee; bail; placement under police supervision; house

arrest and arrest. Most of the compulsory measures and security measures in Criminal Procedure Law are

not related to deprivation of liberty 9 , therefore there is a wide range of pre-trial alternatives to

imprisonment.

6 Kronberga I. National Report on alternatives to imprisonment in Latvia. Available at: http://providus.lv/upload_file/Projekti/Kriminalitesibas/National%20Report%20on%20Latvia_final_07_31_2014.pdf (last visited on 12.12.2014.). 7 Guidelines for Workstream 1 – Research phase by Synergia. Unpublished material. 8 Section 243 of Criminal Procedure Law, available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc (last visited on 15.11.2014.). 9 Please see Attachment 1 of National Report on alternatives to imprisonment in Latvia for an exhaustive list of all pre-trial security measures.

As indicated by the stakeholders, security measures are effective when used in combination. That allows

person directing the proceedings to individualize the approach and to adjust it to the risks of person in

question. For instance, notification of the change of the place of residence or reporting to the police

authority; prohibition from approaching a specific person or location and prohibition from departing

from the State ensures that the person is reachable by the police when necessary while also following the

principle to choosing a procedural compulsory measure that infringes upon the basic rights of a person as

little as possible, and is proportionate. In selecting a security measure, a person directing the proceedings

takes into account the nature and harmfulness of a criminal offence, the character of the suspect or

accused, his or her family situation, health, and other conditions10.

A decision to apply a set of security measures that are not related to deprivation of liberty aims at

ensuring reasonable balance between the goals of criminal proceedings and rights of the suspected or

accused person.

Even though application of a individually adjusted set of security measures was named as the most

effective pre-trial alternative to imprisonment by several stakeholders and it is currently legally available,

without a doubt there is still place for development. A question that was raised in several interviews

concerns electronic monitoring at pre-trial stage. It is recognized as a promising approach, nevertheless

currently is not supported by legislator due to financial limitations and lack of nationally based practical

experience. As indicated by stakeholders, electronic monitoring could be applicable to suspects and

accused without placing them in the prison environment – this alternative remains a topic for discussions

for the near future.

2.2 Post-trial alternatives to imprisonment

Criminal Law foresees basic punishments that are not related to deprivation of liberty and isolation from

society, namely, community service and a fine11. These sanctions will be applied in cases when the type of

criminal offence, harm caused and personality of the offender allows the court to do so, therefore some

stakeholders doubt whether, for instance, community service can be considered an alternative to

imprisonment while others emphasize its positive impact on punishment execution system and names it

as one of the best approaches currently available.

As for other sanctions that are not related to isolation from society, one can make a distinction between

those that allow offender to avoid prison as such and those that foresee a possibility to return to society

before serving the whole term of imprisonment adjudged by the court. For instance, if, in determining a

punishment – deprivation of liberty – for a period longer than three months, but not longer than five

years, a court, taking into account the nature of the committed criminal offence and the harm caused, the

personality of the offender and other circumstances of the matter, becomes convinced that the offender,

10 Section 244 of Criminal Procedure Law, available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc (last visited on 15.12.2014.). 11 Section 36 of Criminal Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/The_Criminal_Law.doc (last visited on 15.12.2014.).

without serving the punishment, will not commit violations of the law in the future, it may punish the

offender with a sentence that is suspended. 12 (Suspended Sentence). Suspended sentence in

combination with community service as additional punishment was specifically indicated as a good

alternative to imprisonment in cases when it can be applied as it includes the punishing element and

restitution of the caused harm by working for a public benefit while also making it possible to apply

probation programs or other conditions that may lead to changes in the way offender thinks and acts.

A person who has committed a criminal violation or a less serious crime, may be conditionally released

from criminal liability by a public prosecutor if, taking into account the nature of the offence and the

harm caused, information characterising the accused and other circumstances of the matter, there is an

acquired conviction that the accused will not commit further criminal offences.13 (Conditional Release

from Criminal Liability).

A person who has been convicted with deprivation of liberty, except temporary deprivation of liberty,

may be conditionally released prior to completion of his or her basic punishment, if there is a

reason to believe that he or she is able to adapt in the society after release without committing a criminal

offence.14 (Conditional Release Prior to Completion of Punishment).

The arguments in favour for alternatives to imprisonment are rather common among all stakeholders

with an emphasis on the consequences an imprisonment has on the offender as well as on offender’s

family and society in a long term context. Economic aspects are mentioned as the first ones and the

reason for that is twofold: firstly, imprisonment is the most expensive of all punishments (daily costs of

one prisoner in Latvia is EUR 2015) and, secondly, even after the person is released from prison one is

likely to face difficulties in finding an employment. Therefore person remains dependant on municipal

support and allowances or is lead to committing more criminal offences, which means that long term

imprisonment costs double to society – those are the expenses of prison and the expenses of persons’

reintegration. As highlighted during the interviews, in many cases offenders are not prepared to find legal

ways to provide for themselves and probation interventions can be used to tackle this problem. Probation

programs, supervision, electronic monitoring – those are tools that can be applied to integrate a person in

work environment, in educational environment and other resocialization categories, therefore enabling

the person to remain in society and to do so without harming others. Another aspect that was often

named for consideration is the social argument within the context of family ties. If alternatives to

imprisonment are applied to a person, he or she is able to stay with and to provide for the family which

can be viewed as one of the preventive factors. Economic benefits in a narrower understanding were also

mentioned as, for instance, community work leads to concrete savings for the employers while socially

12 Section 55 of Criminal Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/The_Criminal_Law.doc (last visited on 15.12.2014.). 13 Section 58.1 of Criminal Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/The_Criminal_Law.doc (last visited on 15.12.2014.). 14 Section 61 of Criminal Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/The_Criminal_Law.doc (last visited on 15.12.2014.). 15 Spriņģe I. Prisoners. An article on the basis of research „Baltic Prisons”. Available at: http://www.rebaltica.lv/lv/petijumi/balt/a/1102/ieslodziti.html/ (last visited on 07.12.2014.).

relevant and beneficial work is carried out - as indicated in Annual Report of State Probation Service,

362 513 hours of community service were served in 2013 which lead to approximately EUR 620 518

savings for employers16.

3. Strengths and weaknesses of alternatives to imprisonment To make a general summary of all strengths that stakeholders identified for alternatives to imprisonment,

the work of State Probation Service should be mentioned as the common thread. To varying extent State

Probation Service is the implementing and supervising authority in all cases of post-trial alternatives to

imprisonment, including community service, suspended sentence, conditional release prior to completion

of punishment et.al.

The main strength of interventions and approaches applied by State Probation Service is the focus on

causes of criminal offences and individual approach to each offender. As mentioned by several

interviewees, these interventions and approaches enable specialists to influence the values of offender, to

change the way person thinks and to foster a shift in attitude while considering the sociopsychological

needs of the offender and adjusting the intervention to the required extent. Person remains within the

society, does not loose one’s social contacts and can remain financially and economically active.

When a suspended sentence or conditional release prior to completion of punishment is adjudged, in

order for the objective of punishment to be reached offender has to follow specific conditions and

obligations set by the court. Up until now, it was court that decided on these conditions, even though

State Probation Service carried out evaluation of the person, assessed his or her risks and supervised

implementation of the probationary supervision plan. Benefits of individualized and timely adjusted

conditions were recognized by legislator, therefore amendments to Criminal Law17 will enter into force on

01.02.2015. and with these amendments State Probation Service will have more impact on the content of

conditions and obligations. This, in turn, means that the content of interventions will be even more

personalized in accordance with sociopsychological needs of the offender and considering his or her level

of risks, resocialization and integration.

Abovementioned amendments to Criminal Law will also introduce electronic monitoring in specific cases

of conditional release prior to completion of punishment, thus widening the circle of persons who will be

entitled to serving the remaining part of the punishment without isolation from society. As stated by one

of the stakeholders, electronic monitoring itself does not prevent committing another crime but it

provides offender with a certain “credit of trust” – with the necessary support in place, it can lead to the

expected results.

16 Annual Report of State Probation Service (2013). Available at: http://www.probacija.lv/uploads/gada_parskati/2013_vpd_publiskais_parskats_16_06_2014.pdf (last viewed on 10.12.2014.). 17Amendments to Criminal Law that will come into effect on 01.02.2013., available at: http://likumi.lv/ta/id/269815-grozijumi-kriminallikuma (last visited on 10.12.2014.).

In addition to effectiveness of the rehabilitation and reintegration of offenders, cost benefits must also be

noted. As indicated in the Annual report of State Probation Service, the average daily costs per one

probation client in 2013 was EUR 1.2718. When contrasted with the daily costs of punishment that is

related to isolation from society – EUR 20, cost benefits for alternatives to imprisonment are well

illustrated.

An issue that was mentioned by all stakeholders was the punitive element of the alternatives. The

opinions, however, varied. While some held the opinion that Latvian society has outgrown the idea of

more severe punishment leading to safer society, others were certain that, in public’s opinion, the

opposite is true– long terms of imprisonment and very high fines are still viewed as the only considerable

sanctions for criminal offences. Several aspects must be mentioned in this regard. Firstly, all of the

alternatives foresee the punitive element as a proportionate reaction to crime and it is included within the

conditions and obligations set by court and/or State Probation Service. Besides, Criminal Law indicates

the minimal and maximal sanction for specific type of criminal offence and the court is bound to these

limits in all cases. Secondly, 2013 marks a year when Latvian criminal justice system underwent

fundamental changes19, ensuring that sanctions foreseen in Criminal Law become less severe – in many

cases both the minimal and maximal limits were decreased. Therefore, a shift in public opinion is tried to

be reached by changing the criminal justice system first. Thirdly, the proportionality of punitive element is

assessed not only in general terms by society but also in case of each specific crime by the victim. As

indicated by the stakeholders, this is the point where various restorative justice measures can be of crucial

importance – implementation of those measures can ensure that the victims consider situation to be

resolved in a just and fair way.

To address the weaknesses of alternatives, one has to mention the unsufficient social support system

which is of high relevance when a person is conditionally released prior to completion of punishment – if

the social support is weak or non-existent, a person will return to the environment that lead to offending

in the first place and that leads to risks of re-offending.

As for pre-trial alternatives to imprisonment, two interrelated types of weaknesses were mentioned –

firstly, in many cases the actual capacity of authorities to control implementation of these security

measures is rather limited. Therefore, secondly, application of security measures is successful if the person

is responsible and willing to follow the limitations. If not, it can be challenging to ensure the discipline

that is required for the purposes of criminal proceedings and it leads to application of more strict

measures that can be related to deprivation of liberty.

As a potential weakness of post-trial alternatives, namely – suspended sentence, there are groups of

offenders that would expect to be punished by application of alternative instead of actual deprivation of

18 Annual Report of State Probation Service (2013). Available at: http://www.probacija.lv/uploads/gada_parskati/2013_vpd_publiskais_parskats_16_06_2014.pdf (last visited on 10.12.2014.). 19 Amendments to Criminal Law that come into effect on 01.04.2013., available at: http://likumi.lv/ta/id/253698-grozijumi-kriminallikuma (last visited on 10.12.2014.).

liberty. It is particularly the case in relation to criminal offences in state authority service, offences

committed by state officials. Their background and characteristics provides funded reasons to expect not

to be punished with imprisonment, therefore the preventative aspect of possible punishment is not

entirely successful.


4.1 Pre-trial alternatives to imprisonment

When application of pre-trial alternatives is in question, target group consists of persons with a status of

suspect or accused. Grounds for the application of a procedural compulsory measure shall be the

resistance of a person to the reaching of the aim of criminal proceedings in concrete proceedings or to

the performance of a separate procedural action, or non-execution or improper execution of his or her

procedural duties. A security measure shall be applied as a procedural security measure to a suspect or an

accused if there are grounds to believe that the relevant person will continue criminal activities, or hinder

pre-trial criminal proceedings or court or avoid such proceedings and court.20

A person directing the proceedings shall choose a procedural compulsory measure that infringes upon the

basic rights of a person as little as possible, and is proportionate. In selecting a security measure, a person

directing the proceedings shall take into account the nature and harmfulness of a criminal offence, the

character of the suspect or accused, his or her family situation, health, and other conditions.21

When identifying the target group of pre-trial alternatives to detention, the general conclusion is as

follows – if a person has a status of suspect or accused, in most cases a security measure will be applied22

and, if the specific circumstances to apply a security measure that is related to deprivation of liberty are

not in place23, person directing the proceedings will apply a security measure or combination of several

measures that is not related to deprivation of liberty.

As for the key actors involved in implementation of the described approach, security measures are

applied by a decision of person directing the proceedings24 and decision can be appealed to investigating

20 Section 241 of Criminal Procedure Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc (last visited on 12.12.2014.). 21 Section 244 of Criminal Procedure Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc (last visited on 12.12.2014.). 22 In a research that was carried out in 2008, persons directing the proceedings participated in a survey and there was a question about situation when no security measure is applied to a suspect or accused. 57% of all respondents indicated that this approach can be used only in certain cases, 10% said that no security measure at all is a bad practice and 7% held an opinion that this approach is unacceptable. The vast minority of respondents – only 26%, indicated that it is a common approach. More information: Judins A. Security Measures not Related to Deprivation of Liberty. Riga (2008). Available at: http://providus.lv/upload_file/Publikacijas/Kriminalt/Judins_Brivibas%20atnems.pdf (in Latvian). (last visited on 12.12.2014.). 23 Author’s note: for more information please see Chapter 15 Compulsory Measures Related to the Deprivation of Liberty of Criminal Procedure Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc (last visited on 12.12.2014.). 24 Author’s note: in accordance with Section 27 of Criminal Procedure Law, person directing the proceedings is

(a) an investigator or in exceptional cases a public prosecutor – in an investigation; (b) a public prosecutor – in a

criminal prosecution.

judge if a person to whom a security measure has been applied may justify that the provisions of such

security measure cannot be fulfilled25.

4.2 Post-trial alternatives to imprisonment

In Latvia, implementation of alternatives to imprisonment is mostly dependent on classification of

criminal offences – that is the case when community service, suspended sentence and conditional release

from criminal liability are applied. These alternatives to imprisonment are applicable to persons who have

committed a criminal violation26, a less serious crime27 or a serious crime for which the possible

punishment – deprivation of liberty, exceeds three years but does not exceed five years. In accordance

with the opinion of stakeholders and their professional experience, in most cases these alternatives can be

applied to offenders who have committed criminal offences against traffic safety and criminal offences

against property, but this list is only indicative, not exhaustive.

In addition to classification of criminal offence, the target group of alternatives to imprisonment is also

narrowed by assessing the nature of the committed criminal offence and the harm caused, the personality

of the offender and other circumstances of the matter.

An exception from this type of target group identification is conditional release prior to completion of

punishment as in those cases other criteria are considered. Firstly, personality and behaviour of the

convicted person is taken into account and, secondly, the following criteria must be positively assessed:

(1) the convicted person has reached a certain result of resocialisation; (2) the convicted person to the

extent possible has voluntarily made compensation for losses caused by his or her crime; (3) the

convicted person has possibilities to acquire means of subsistence in legal way after his or her release; (4)

the term specified in a law regulating the execution of criminal punishments after imposition of the

punishment for the violation of the punishment serving regime has lapsed and there are no effective

punishments for administrative violations committed during execution of the punishment of deprivation

of liberty; (5) the convicted person is solving and is ready to continue to solve his or her psychological

problems which have caused or may cause commitment of criminal offence; (6) the convicted person has

agreed to treatment for alcoholism or addiction to narcotic, psychotropic or toxic substances, if he or she

has committed the criminal offence due to alcoholism or addiction to narcotic, psychotropic or toxic

substances.28

In addition to that, convicted person is eligible for conditional release prior to completion of punishment

after he or she has actually served:

1) not less than half of the punishment imposed for a less serious crime committed; 25 Section 262 of Criminal Procedure Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc (last visited on 12.12.2014.). 26 Author’s note: in accordance with Section 7 of Criminal Law, a criminal violation is an offence for which this Law provides for deprivation of liberty for a term exceeding fifteen days, but not exceeding three months (temporary deprivation of liberty), or a type of lesser punishment. 27 Author’s note: in accordance with Section 7 of Criminal Law, a less serious crime is an intentional offence for which this Law provides for deprivation of liberty for a term exceeding three months but not exceeding three years. 28 Section 61 of Criminal Law, Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/The_Criminal_Law.doc

2) not less than two-thirds of the punishment imposed, if it has been imposed for a serious crime, or if

the convicted person is a person who previously has been convicted with deprivation of liberty for an

intentional crime and the criminal record for this crime has not been set aside or extinguished;

3) not less than three-quarters of the punishment imposed, if it has been adjudged for an especially

serious crime or if the convicted person is a person who previously had been conditionally released prior

to completion of punishment and has newly committed an intentional crime during the period of the

unserved punishment; or

4) twenty-five years of a punishment of deprivation of liberty, if the convicted person is a person for

whom life imprisonment has been imposed.29

Even though the target groups for alternatives of imprisonment are defined rather widely, there are,

however, categories of offenders that are recently excluded from being subjected to these alternatives.

Since the amendments to Criminal Law that came into effect on 14.06.2014.30 adults who have committed

an especially serious crime against a person who has not reached the age of 16 years and this crime is

linked to sexual violence are not eligible for conditional release prior to completion of punishment.

Similarly, since the amendments to Criminal Law that came into effect on 29.10.2014.31, a person who has

committed rape or forcible sexual assault is not entitled to be punished with a sentence that is suspended.

It must be noted that the abovementioned amendments have been viewed contradictory. On one hand,

legislator is striving to highlight the harmfulness of these criminal offences and therefore the reaction is

made stricter in order to prevent crime by clearly showing the severity of the punishment. On the other

hand, within current legal framework suspended sentence and conditional release prior to completion of

punishment are named as good practices due to involvement of State Probation Service as the

implementing authority. With these amendments, convicted persons will be released after serving full

term and therefore there will be no legal grounds for any of State Probation Service interventions that are

valued highly by all stakeholders.

These interventions by State Probation Service are the reason for interviewees to name them as the most

important actors for successful implementation of post-trial alternatives to imprisonment, while other

key actors include persons directing the proceedings, court, prison personnel and providers of social

services.

When the court is deciding on application of the alternatives to imprisonment, general principles of

victims’ rights are respected and so are the rights foreseen at each court instance, for example, (a) a

victim, taking into account the amount of financial loss, physical suffering, and moral injury caused to

him or her, shall submit the amounts of such harm, and use his or her procedural rights for acquiring

moral and material compensation; (b) a victim has the right, in all stage of criminal proceedings and in all

types thereof, to participate in criminal proceedings using the language that he or she understands, and, if

29 Ibid. 30 Amendments to Criminal Law that came into effect on 14.06.2014. Available at: http://likumi.lv/ta/id/266590-grozijumi-kriminallikuma (last visited on 12.12.2014.). 31 Amendments to Criminal Law that came into effect on 29.10.2014. Available at: http://likumi.lv/ta/id/269516-grozijumi-kriminallikuma (last visited on 12.12.2014.).

necessary, using the assistance of an interpreter free of charge, as well as the right to not testify against

himself or herself and his or her immediate family; (c) a victim – natural person may implement the rights

thereof him or herself, or with the intermediation of a representative; (d) the rights of a victim – legal

person shall be implemented by the representative thereof; (e) in order to ensure the actualisation of

rights, a victim or the representative thereof may invite a defence council for the provision of legal

assistance; (f) a victim shall implement his or her rights voluntarily and in an amount designated by him

or her. The non-utilisation of rights shall not delay the progress of proceedings; (g) a victim may settle, in

all stages of proceedings and in all types thereof, with the person who caused harm to him or her. In the

cases provided for in the Law, a settlement shall be the grounds for the termination of criminal

proceedings. (h) an image of a victim recorded as a photograph, video, or by other types of technical

means shall not be published in the mass media during procedural actions without the consent of such

victim if such publication is not necessary for the disclosure of a criminal offence.32

In addition to that, the victim has the following rights in a court of first instance: (1) to find out the place

and time of the trial in a timely manner; (2) to submit a recusation to the composition of the court, an

individual judge, a maintainer of state prosecution, and an expert; (3) to participate him or herself in the

examination of a criminal case; (4) to express his or her view regarding every matter to be discussed; (5)

to participate in an examination performed directly and orally of each piece of evidence to be examined in

court; (6) to submit applications; (7) to speak in court debates (a victim may express him or herself

regarding consideration for harm and a punishment to be applied to an accused33); (8) to familiarise him

or herself with a court adjudication and the minutes of a court session; and (9) to appeal a court

adjudication in accordance with the procedures laid down in the law.34

It must be noted, however, that decision on conditional release prior to completion of punishment does

not foresee any involvement of a victim. At the same time, several stakeholders indicated the importance

of restorative justice measures even after the judgement has entered into force and while the offender is

serving the punishment in prison. Criminal Procedure Law foresees a settlement possibility in all stages of

criminal proceedings; therefore there is a possibility for a victim to be involved in the punishment

execution process, even though this approach is not commonly used in practice.


In Latvia, one can apply only those alternatives to imprisonment that are specifically foreseen in law,

therefore legal framework at national level including laws as well as regulations by the Cabinet of

Ministers are crucial preconditions for the alternative to be implementable. 32 Section 97 of Criminal Procedure Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc (last visited on 12.12.2014.). 33 Section 506 of Criminal Procedure Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc (last visited on 12.12.2014.). 34 Section 99 of Criminal Procedure Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc (last visited on 12.12.2014.).

The main legislative framework consists of Criminal Law35, Criminal Procedure Law36, State Probation

Service Law37, Law on The Sentence Execution Code of Latvia38 as well as various Cabinet of Ministers

Regulations, for instance, Cabinet of Ministers Regulations No. 119 of 09.02.2010. on how State

Probation Service organizes execution of the criminal punishment – community service39, Cabinet of

Ministers Regulations No. 804 of 27.11.2007. on how State Probation Service supervises persons with

suspended sentence, persons on conditional release prior to completion of punishment and persons on

conditional release from criminal liability40 as well as Cabinet of Ministers Regulations No. 282 of

31.03.2009. on Rules of Administrative Commission’s operational procedures and decision making

criteria41.

The overall legal framework was described as sufficient and only a few gaps were mentioned.

Nevertheless, in some cases these gaps can be considered an intentional will of the legislator. For

instance, practitioners mentioned that the conditions for a person to be entitled for conditional release

prior to completion of punishment are rather strict and it might be useful to consider making the system

more flexible. Thus more offenders would have a possibility to prove themselves within the society while

being supervised by State Probation Service.

When the questions of legislative gaps were raised, several ideas outside the existing regulations were

brought up. A concept yet to be recognized by legislator was indicated during the interviews while

describing the benefits of halfway houses for offenders. The idea behind this approach would be to have

a place where offenders could gradually adjust to the circumstances they will encounter after the release

from prison and to do so within controlled environment, with support from specialists and by

participating in accredited and licensed programs that would ensure successful integration in society. An

important aspect would be to establish this approach as part of punishment execution system, not the

social support system as the objectives and approaches of both systems differ. Another suggestion

addressed the possible role of State Probation Service at pre-trial stage of criminal proceedings.

Probationary supervision is currently carried out only at the post-trial stage while similar approaches

could benefit the accused and suspects before the trial as well.

When identifying additional conditions that are necessary to effectively implement alternatives to

imprisonment, the common reply addresses resources in various forms – financial, personnel and

35 Criminal Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/The_Criminal_Law.doc 36 Criminal Procedure Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc. 37 State Probation Service Law. Available at: http://likumi.lv/doc.php?id=82551 (last visited on 12.12.2014.). 38 Law on The Sentence Execution Code of Latvia. Available at: http://www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Sentence_Execution_Code.doc (last visited on ) 39 Cabinet of Ministers Regulations No. 119 of 09.02.2010. on how State Probation Service organizes execution of the criminal punishment – community service. Available at: http://likumi.lv/ta/id/205060-kartiba-kada-valsts-probacijas-dienests-organize-kriminalsoda-piespiedu-darbs-izpildi (last visited on 12.12.2014.). 40 Cabinet of Ministers Regulations No. 804 of 27.11.2007. on how State Probation Service supervises persons with suspended sentence, persons on conditional release prior to completion of punishment and persons on conditional release from criminal liability. Available at: http://ej.uz/uzraudziba (last visited on 12.12.2014.). 41 Cabinet of Ministers Regulations No. 282 of 31.03.2009. on Rules of Administrative Commission’s operational procedures and decision making criteria. Available at: http://likumi.lv/ta/id/190185-noteikumi-par-administrativas-komisijas-darbibas-kartibu-un-lemumu-pienemsanas-kriterijiem (last visited on 12.12.2014.).

capacity. In addition to that, awareness raising and educational measures were also mentioned as some of

the pre-conditions for effective application of alternatives – both for society at large and for practitioners

working in the field. Society should be brought to understanding that imprisonment as such does not lead

to safer society and what are the benefits of alternatives while practitioners need to understand that it is

both the attitudes and the content of applied approaches that will ensure results.

6. Conclusions and suggestions To summarize all the opinions that were expressed by the stakeholders, one has to conclude that a good

practice consists of two main elements, namely, it has to be customizable in accordance with the risks and

needs of the offender and it has to have an impact on the way offender thinks, on one’s values and

understanding of what is acceptable within society.

Within the context of Latvian legal system, most of the good examples are related to work of probation

service. The approaches as such are not innovative – for instance, community service as well as

suspended sentence as concepts are well known in many legal systems across Europe and beyond. What

makes these alternatives recognized as effective is their level of individualization and adjusted content of

intervention.

All the specialists working in the punishment execution system are bound to laws and regulations of

national level. However, the regional context is also of relevance as, for instance, State Probation Service

has 28 regional offices42 covering the whole territory of Latvia.

The target groups of alternatives are not specifically foreseen in law – nor by characteristics of an

offender, nor by specific types of crime. Limits are set by classification of criminal offences and that leads

to rather wide possible scope of application.

Section 35 of Criminal Law indicates the objective of punishment, which is (a) to protect the public

safety; (b) to restore justice; (c) to punish the offender for a committed criminal offence; (d) to resocialize

the punished person; and (e) to achieve that the convicted person and other persons comply with the law

and refrain from committing criminal offences43.

What was highlighted by all stakeholders is the fact that state’s reaction to crime should not be more

repressive than necessary for fulfilment of this objective and alternatives to imprisonment are tools that

allow to follow this statement.

42 State Probation Service of Latvia. Available at: http://www.probacija.lv/page.php?id=17 (last visited on 12.12.2014.). 43 Section 35 of Criminal Law. Available at: www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/The_Criminal_Law.doc

7. Resources:

1. Criminal Law. Available at:

www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/The_Criminal_Law.doc

2. Criminal Procedure Law. Available at:

www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.doc.

3. Law on The Sentence Execution Code of Latvia. Available at:

http://www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Sentence_Execution_Code.d

oc (last visited on 10.12.2014.)

4. State Probation Service Law. Available at: http://likumi.lv/doc.php?id=82551 (last visited on

12.12.2014.).

5. State Probation Service of Latvia. Available at: http://www.probacija.lv/page.php?id=17 (last

visited on 12.12.2014.).

6. Amendments to Criminal Law that will come into effect on 01.02.2013., available at:

http://likumi.lv/ta/id/269815-grozijumi-kriminallikuma (last visited on 10.12.2014.).

7. Amendments to Criminal Law that come into effect on 01.04.2013., available at:


8. Amendments to Criminal Law that came into effect on 14.06.2014. Available at:


9. Amendments to Criminal Law that came into effect on 29.10.2014. Available at:


10. Cabinet of Ministers Regulations No. 804 of 27.11.2007. on how State Probation Service

supervises persons with suspended sentence, persons on conditional release prior to completion

of punishment and persons on conditional release from criminal liability. Available at:

http://ej.uz/uzraudziba (last visited on 12.12.2014.).

11. Cabinet of Ministers Regulations No. 282 of 31.03.2009. on Rules of Administrative

Commission’s operational procedures and decision making criteria. Available at:

http://likumi.lv/ta/id/190185-noteikumi-par-administrativas-komisijas-darbibas-kartibu-un-

lemumu-pienemsanas-kriterijiem (last visited on 12.12.2014.).

12. Cabinet of Ministers Regulations No. 119 of 09.02.2010. on how State Probation Service

organizes execution of the criminal punishment – community service. Available at:

http://likumi.lv/ta/id/205060-kartiba-kada-valsts-probacijas-dienests-organize-kriminalsoda-

piespiedu-darbs-izpildi (last visited on 12.12.2014.).

13. Annual Report of State Probation Service (2013). Available at:

http://www.probacija.lv/uploads/gada_parskati/2013_vpd_publiskais_parskats_16_06_2014.pd

f (last viewed on 10.12.2014.).

14. Judins A. Security Measures not Related to Deprivation of Liberty. Riga (2008). Available at:

http://providus.lv/upload_file/Publikacijas/Kriminalt/Judins_Brivibas%20atnems.pdf (in

Latvian). (last visited on 12.12.2014.).

15. Kronberga I. National Report on alternatives to imprisonment in Latvia. Available at:

http://providus.lv/upload_file/Projekti/Kriminalitesibas/National%20Report%20on%20Latvia

_final_07_31_2014.pdf (last visited on 12.12.2014.).

16. Spriņģe I. Prisoners. An article on the basis of research „Baltic Prisons”. Available at:

http://www.rebaltica.lv/lv/petijumi/balt/a/1102/ieslodziti.html/ (last visited on 07.12.2014.).

17. Guidelines for Workstream 1 – Research phase by Synergia. Unpublished material.

18. Interviews with stakeholders. Unpublished material.




Union

Alternatives to imprisonment in Romania

Genera�ie Tân�r� România


1.1 To your knowledge, what are the main pre-trial/post-trial alternatives to imprisonment in your country?

Before detailing the main alternatives to jail in the pre-trial and in the post-trial stages in Romania, it is

adequate that we make a few very important observations upon stating and diversifying these new

alternatives to imprisonment, as they are presented by the new Criminal Code and by the new Criminal

Procedure Code, which came into effect as per the 1st of February 2014. All the actors interviewed saluted

the introduction of new alternatives to imprisonment and they are all confident in the effectiveness of

these alternatives, especially since this was one of the objectives of these new codes, fitting into the

absolutely general and famous particularly European trend and it is proven scientifically that the measures

which are an alternative to imprisonment are the ones viable and efficient.

It is also very important to state that no evaluation or national study has been done in regard to the

effectiveness of these new alternatives to imprisonment, whereas no more than 10 months have passed

since their implementation into the Romanian legislation, so that each actor interviewed could not give a

categorical answer upon their effectiveness, but the information that they hold show apparently that the

magistrates have already started to order the new measures which are an alternative to imprisonment.

1.2 Let’s focus on pre-trial alternatives:

-‐‑ Which ones do you think are the most effective?

-‐‑ Which ones have already been implemented in your (local) context?

Therefore, in the pre-trial stage, the interviewed actors stated that the main alternatives to imprisonment

are: detention, judicial control (review), and judicial control (review) on bail, house arrest, remand

(preventive custody) and the waiver from prosecution. Until now, the most effective measures are:

judicial control, judicial control on bail, house arrest and remand. These alternatives have also been

implemented until now.

1.3 Let’s focus on post-trial alternatives:

-‐‑ Which ones do you think are the most effective?

-‐‑ Which ones have already been implemented in your (local) context?

In reference to the post-trial alternatives, the interviewed persons listed the following: warning, criminal

fine, the procrastination of the punishment, the reprieve of serving of the punishment under probation

sanction and the agreement on admission of guilt. The criminal fine was consolidated on the new

regulations, such as many of the crimes are applied a criminal fine as an alternative to imprisonment.

There is also the possibility of turning the criminal fine into community work, if the person does not have

incomes for paying the criminal fine and the supervision and monitoring of the person for whom the

measure was ordered falls under the responsibility of the probation service.

In regard to the procrastination of the punishment, this alternative is newly inserted into the Criminal

Code. According to the statements of the interviewees, this alternative has already started being applied,

which is a very good thing. The procrastination of the punishment is considered to be an effective

alternative because a person receiving a sentence for the crime committed, a quantum of this penalty is

estimated but this penalty is not effectively applied, its application being delayed for 2 years, a term during

which the person must prove the change of his or her behavior and not commit a crime again, while

complying with the measures and obligations imposed by the court. After the expiry of the supervision

term, if the person has complied accordingly to the regulations stated by the court, that person is not

convicted any more, a fact which comes as a great advantage for that person, because in this way we

avoid the discrimination given by the fact that the conviction is shown in the criminal record and when

the person who was convicted wishes to obtain a job, he or she hits these barriers and perceptions, while

this alternative means that the criminal record will not show any conviction.

In regard to the waiver from prosecution and agreement on admission of guilt, we must say that these

two alternatives are not stated in the Criminal Code, while they are stated only in the Criminal Procedure

Code. The experts declared that these measures have also started to be implemented.

Out of the post-trial alternatives, we can’t certainly say yet which are the most efficient, due to the

reasons presented above, but we can say that the ones which began to be applied, which are: the

procrastination of the punishment, the reprieve of serving of the punishment under probation sanction

and the waiver from prosecution (which is a pre-trial alternative).

Concerning the reprieve of serving of the punishment under probation, this alternative is equivalent to

the one in the old Code; the person is left free, he or she receives a conviction, a certain penalty is

ordered, but the application method is by letting that person be free and under supervision, and then the

person must comply with the measures and obligations imposed by the court and additionally by the

previous legislation, performing community work.

1.4 Do you know any other alternatives that are available elsewhere and upon which the

alternatives you mentioned can be improved?

According to the statements of the key actors, the improvement of the current legislation in Romania was

inspired by the practices of other countries with experience in measures alternative to prison and it is well

aligned to the European legislation as almost the same application methods are also found in Romania

currently. An actual example is the house arrest which is working for a long time, very well in Italy, and

this is why it was taken and introduced into the Romanian legislation, already being an alternative ordered

by the magistrates.

1.5 Can you think about an ideal alternative to imprisonment (either already existing or not)?

It is known in the entire Europe and in all the structures of the European Council that probation is the

alternative to imprisonment. Even for the persons for which a custodial sentence regardless of the

programs they follow in the prison system, if these programs have no continuity in the community and

the continuity has to be done by the probation system, these persons will return quickly to the prison

system because they will not be capable of handling life on their own. Thus, probation itself is seen by all

the experts/actors as being an ideal alternative.

Another alternative considered to be ideal is represented by the fines structured with daytime fines.

Reason is that sanction by applying a fine must be proportional with the gravity of the crime and it should

generate an identical impact – in terms of economic impulse-over the persons with different financial

resources, which are sanctioned for the same crime. The structured fine involves a process in two stages.

In the first stage, the number of units for the fine applied for one crime is determined from a scale which

classifies (taxonomically) the crimes related to their seriousness… In the second stage, the quantum of

the fine involves the multiplication of the number of units of the fine (diversification) with a proportion

of the daily net income of the defendant – where the term of daily fine comes from.

The structured fines begin in Sweden – 1920-, being adopted consequently by the other Scandinavian

countries. Since 1970 they were adopted in West Germany too. These western European countries made

the penalty selected from structural fines, applying them largely to the criminal cases, including delicate

and serious cases… In Germany, daily fines were/are used for ¼ of the group of criminals, condemned

for anti-patrimony crimes, as well as for 2/3 of all the criminals convicted for lesions/ injuries. The US

hesitated in using the material constraint as a penalty for committing crimes, even though its grounds lie

in a society based on the financial incentive in its social philosophy and in the economic practice.

The enforcement of the new Criminal Code and the fact that approximately all the alternatives are new

for Romania, all the alternatives are considered to be promising, having the chance that at least one of

them will become the ideal alternative.

1.6 From your point of view, what are the main arguments (political, social, philosophical,

economic, etc.) pro alternatives?

In regard to the political argument pro alternative to detention, it is very important to mention that

Romania has prepared over 10 years the alignment of the national legislation to the European one,

including in regard to the alternative to imprisonment. During all this period several governments and

coalitions succeeded each other, and parliamentarians were hard to convince in regard to certain

alternative measures to imprisonment. Therefore, there was never a real collaboration or a real interest

from the political class in regard to alternatives to imprisonment.

From a social perspective, it is more efficient to have measures alternative to imprisonment because if the

person loses contact with community, it will be very hard for him or her to be reeducated and in the end

the penalty, regardless of its primary nature as penalty, must have educational purposes. If the person will

not be reeducated, after enforcing the penalty, he or she will not be able to return to the community and

then it is liable to commit crimes again. The benefits are multiple: the relationship with the family is

maintained, a relationship which is endangered in the case of imprisonment. This way, the person can

continue to exercise his or her daily tasks as a parent, husband, son or daughter, he or she has

responsibilities which can be accomplished and not lastly he or she can continue to contribute to

maintaining the wellbeing of the family.

From a philosophical perspective, each person deserves a chance and these alternatives were thought for

the persons who don’t persist in relapsing and who have a chance to correct their wrongs without being

introduced to an imprisonment system and then clearly these persons deserve the attempt to correct their

behavior freely without being deprived of their liberty. It is obvious that imprisonment requires costs

borne by the state. The person is destabilized professionally and the budget of the family is destabilized,

not only for the person but also for the others who are in the care of that person and so, from the

economic perspective it is certainly more advantageous that the person continues his or her life in the

community, under certain constraints which don’t cost anything from an economic point of view.

1.7 And what do you think are the most common arguments used by others to design and

implement alternatives to imprisonment?

General wishes – in the political philosophy of Rousseau, the wish of the entire community, which sets

the laws for all the members of society.

Possibly the most difficult problem faced by the persons who elaborate the policy in the correctional

institutions’ field currently and in the future is if the resources which are scarcer and scarcer, will be

allocated more to penalty (achievement of the reward and incapacitation purposes) or to rehabilitation

(successful integration/reinsertion).

From a political point of view, the model of crime control in the Criminal justice reflects the traditional

conservative values; while in contrast, the model of the correct legal process shows the traditional liberal

values. For the model of crime control, the most important function of criminal justice is the control of

criminal behavior. Consequently, the main focus in this model targets the effectiveness of the

development of the criminal justice process. On the other hand, the purpose of the process model, the

purpose of the correct legal process is at least as important for protecting the innocent person as

condemning the guilty person. Essentially, the model of the correct legal process defend its ideal of

freedom and protection, based on the assumption that the most important function of the criminal justice

system is preventing tyranny from authorities and their agents.

2. Strenghts and weaknesses of alternatives to imprisonment


The advantages in using the alternatives to imprisonment are social, economic, political and cultural, and

they have been listed above, but we have to remind an aspect which is not insignificant: the practical one

which refers to the intervention. The alternatives allow you to practice, because the intervention

programs aiming for re/ integration, which is achieved when the person is kept at liberty and all the steps

of the re/ integration program are done by the person’s own efforts and by mobilizing the resources that

he or she disposes of. Also, by ordering alternatives to imprisonment, the overcrowding and the

congestion in the public imprisonment areas could be avoided. Another strong point is the relapse rate

which is much lower for the persons who are/ have been monitored by the probation system compared

with the ones who executed a sentence in the prison system.


A weak point is related to the perception of the community. Generally, alternatives are not well

understood by the community, whereas the community wishes for criminals to be punished, without

thinking and analyzing carefully the consequences of these penalties. Unfortunately, the alternatives to

imprisonment have not been sufficiently publicized. The situation in Romania is not particular, because

generally the community does not see convicts as being persons who belong to the community, while this

is a fundamental mistake. It is considered that from the moment that person committed a crime and came

into the hands of the state under legal procedures that person no longer forms a part of the community

and it is not the problem of the community what happens to that person. Unfortunately, it is not only the

approach in Romania, but it is a general approach, more or less powerful in the European states,

depending on position and mentalities, civility level or civic level if you prefer to call it that. Another weak

point which is not only in Romania, but in all the European states, is that everyone understands that once

that person is handed to a system, either a prison system or a probation one, the system must solve the

problems, and this is again profoundly wrong. The probation system must support the person to

reintegrate into the community and if the community does not accept that person, reintegration becomes

hard and sometimes almost impossible. In Romania there is still a huge problem with everything defining

the persons responsible officially/ legally for the community, because these persons don’t see as their

obligation to deal with the persons for which an alternative to imprisonment has been ordered or who

were released from the prison system. The undeserved benefits for dangerous criminals insufficiently

trialed in court may also be a weak point.

2.3. Could you make a comparison between such alternatives and imprisonment? Consider the

following aspects:

-‐‑ Costs/benefits;

-‐‑ Personnel involved;

-‐‑ Punitive element (how to identify it and how it is perceived by offender/victim/society);

-‐‑ Effectiveness in the rehabilitation and reintegration of the offender;

-‐‑ Safeguard of human rights and human dignity.

As mentioned above from the cost and from the benefits perspectives, both for the convicted person and

for the state, the alternatives to imprisonment are the most viable solution. Of course in a prison system,

the criminal generates more costs than a person for which the alternative measure of imprisonment was

ordered. For example, the costs related to the staff employed, to the food, clothing, to programs aiming

to rehabilitate the criminal from a social-educational and professional point of view and aiming to

accomplish many other activities in which criminals are involved.

Under the aspect of complying with the human rights, it is obvious that for a person who is free and who

completely rule their lives human rights are fully complied with, compared with the situation of the

persons who are deprived of freedom, who live in a closed environment which also generates abuses,

voluntarily and involuntarily, either if these abuses are made by persons with a similar situation, as

cellmates, or if they are made from the staff handling the convicted persons. It is known that a closed

environment has negative effects upon convicted persons, whereas this is not the case of measures which

don’t deprive the person from his or her freedom.

In regard to the effectiveness in the rehabilitation of criminals, if the alternative measures are well

implemented, considering the competence and the professional training of the qualified staff, namely the

probation counselors who perform activities on the restrictive side, on the coercive and on the support

side, as well as on the counseling side for the social reintegration of the person, if non-custodial measures

are applied, having a great chance to be more efficient than a custodial measure who tears the rhythm of

the person’s life and his or her environment.

From the perspective of the victim, things are a little bit different because he or she has been injured,

damaged, abused, that person suffered some losses due to the action of the criminal and then naturally

there is that reflex of wishing that the criminal will be removed from the life of the community and he

will feel that he is being punished, suffering the same way as he provoked that suffering, yet this aspect is

also related to the education of the victim, to the education of society. Probation counselors do an

exercise with the criminals, an exercise of empathy, of understanding the victim, of placing themselves in

the victim’s place, but this exercise may be very useful if it is done in reverse too in order to develop a

healthy thinking and a healthy mentality, as it is very clear that someone who did something wrong is

imprisoned for a while, that person is removed from community, yet during that imprisonment period, he

may have become a better person, as well as he may have become a worse one. We must be aware that in

the end the criminal comes back into society and then, the victim may confront the criminal again, but it

is better to deal with a criminal who is socially rehabilitated/ reintegrated than dealing with one who

became an even worse person. Therefore, this is a matter of how we think in the end, and this depends

on each person separately.

From the perspective of the persons involved, it is very clear that in a closed prison system, a bigger

number of employees dealing with a criminal is necessary, than for a criminal for which the court ordered

a non-custodial measure. The person for which the non-custodial measure was ordered is supervised by a

probation counselor and he is also counseled, according to the statements of the Probation Service

attached to Timis County Court; currently a probation counselor deals with approximately one hundred

persons (criminals).



-‐‑ What kind of crimes are most likely to be punished with alternative sanctions?

-‐‑ Are certain types of alternatives issued to a certain profile of offenders? (e.g. drug-addicts,

etc.)

There is no certain reference group. Certain conditions stated in the Criminal Code must be “met” by the

criminal, in order for him to benefit from a non-custodial measure. It is possible though to state that the

“beneficiaries” of this kind of non-custodial measures can even be drug dealers, but of course most of

them are the criminals committing patrimonial crimes which are listed below.

Most often, alternative sanctions to imprisonment punish the crimes against patrimony among which:

burglary, aggravated burglary, robbery, breach of trust, fraudulent management, fraud, embezzlement,

destruction, disturbance of possession, concealment. These are accompanied by economic crimes,

corruption crimes, drug traffic, driving under the alcohol influence, driving without a license,

manslaughter.

The profiles of the criminals are resulted from a large panel of crimes which I listed above, such as the

judge is the one considering the traits of the person and estimating if the reintegration is probable or

possible in freedom or if the person must be isolated. The Criminal Code has no specifications according

to which a crime or a group of crimes are ordered non-custodial measures, the judge being the one

deciding upon this.

3.2 What is the role of the victim? (e.g. victims are heard, victims are informed, victims may codecide,

restoration of harm to victim, etc.)

In regard to the probation Service, it also has the task to counsel victims, yet unfortunately not always the

victims access such services from various reasons, but the court sets the civil obligations of a criminal,

including the compensations for damages, restoring the prejudice brought to the victim.

In regard to the role of the victim, we must start from the premises that on the European level, we have

standards upon the role of the victim in criminal procedures, and thus the victims are heard during the

trial, they are represented by a lawyer during the criminal trial, the victim is asked from the start of the

legal procedures if he or she wishes to be informed when the alleged criminal will be released from

prison, the victim has the priority in matters of compensations and according to the new regulations, it is

gratifying that the forced executions have already started and the assets of criminals have been seized.

This publication has been produced with the financial support of the Criminal Justice Programme of the European Union.

The contents of this publication are the sole responsibility of Generatie Tanara (Unga-Liv) Association and can in no way

be taken to reflect the views of the European Commission.”

Another new element regarding the victim is protection, which is accordingly applied – protection of the

threatened or vulnerable witnesses. There is an obligation of the legal authorities to inform the victims

upon the fact that if they wish, they have the right to request physical protection while moving,

protection at home, etc.

3.3 What is the role of non-governmental organizations / institutions? (e.g. in debates and policies, in

influencing the decision, in the offender’s rehabilitation, etc.)

The part played by NGOs is very important; their involvement is important because there are NGOs

which make their voice heard since the legislative stage when policies are elaborated. There are NGOs

which affirmed their position and which act for a long time in this area, but they are too few.

Unfortunately there are even fewer organizations performing services for the persons who committed

crimes and who are maintained at liberty. There is need for a much larger number of NGOs in this area

of offering assistance/ programs directly addressed to persons for which the court ordered a non-

custodial measure. Unfortunately there are no sufficient NGOs in this area.

3.4 What is the role of private citizens? (e.g. in debates and policies, in influencing the decision, in the

offender’s rehabilitation, etc.)

Citizens are involved to the extent where they want to get involved, any law is submitted to public

debates and each citizen may express his point of view, yet it appears that the interest for this field is not

so great, as it is in other fields, as the one related to health or education. Persons who committed crimes

are still labeled and perceived somewhat marginally.

There are also citizens getting involved in this domain. Probation grew extraordinarily also because of

citizens who got involved and not only because of the system, yet due to the people from the civil society

who were involved, whereas on the level of the community there is a civic involvement problem.

Statistically, 300-500 volunteers are involved annually in the 42 territorial Probation Services in Romania.

3.5 Who are the key actors involved in the sentencing process?

-‐‑ Who is in charge of making the decision and on which ground? (e.g. police, public

prosecutor, court, investigating judge, etc.)

-‐‑ Who has an influence on such decision? (Please consider explicit/legally recognized

influence as well as indirect/implicit influence)

A first competence belongs to the police authority. On the new codes, the competence of police

authorities performing a criminal investigation for more cases than they did before was extended, of

course under the supervision of the prosecutor.

So a first extremely important key player is the police man. The police is the first authority entering into

contact with the person who committed a crime, they perform their investigation work for that crime and

afterwards, the prosecutor is the one elaborating and handling all this criminal prosecution material,

making an indictment which is the document ending the criminal prosecution and sending the file to the

court, whereas the person becomes a defendant and is sent to court. The judge is the one taking the

decision. In this stage, the lawyer, the victim and the criminal start playing their part, as well as the

probation service in certain situations in which the court considers that a psycho-social assessment needs

to be made by the probation service upon the person who is the defendant and this assessment

contributes to the individualization of the person.

The decision of the judge can influence the prosecutor who represents the indictment, meaning that he is

the representative of the state who was prejudiced by the crime committed by the criminal, he interferes

and he can influence the lawyer by the evidence that he brings, by documentary evidence etc. The

probation counselor also can influence significantly the individualization of the penalty, whereas the

assessment is report is requested for and the magistrate considers it especially when shaping the profile of

that person, so that the assessment report shows the potential that the person has in being rehabilitated

and the possibilities of being supervised, of being integrated, of following certain programs, or the

resources that the person has in his or her family, at the job and so on, and then this intervention

influences the decision of the judge.

3.6 What key actors are involved in implementing such measures (both pre and post trial)?

-‐‑ Who are the professionals involved in implementing alternatives to detention (both pre and

post trial)? What role do they play?

-‐‑ Are there other institutions/organizations involved? What role do they play?

The probation services are part of the key factors for monitoring the compliance with the obligations

stated by the court and for monitoring the person after executing the penalty or after the probation.

Probation counselors are professionals involved into the application of the alternatives to imprisonment

before and after the trial. The ones competent in the conduit of criminals are the probation service and

the police. A special importance is given to the local and county authorities and to the NGOs because

their lack of involvement affects negatively the entire system.Outside the institutions mentioned above,

there are no other institutions involved.


4.1 Are the most effective alternatives – from your point of view – already available?

-‐‑ If not, what would make them available/feasible?

-‐‑ What are the institutions which should make such alternatives available/feasible?

There is still no centralized answer related to the alternatives which are more efficient. As specified above,

there is no assessment made yet upon their efficiency, but still, some of the actors/experts interviewed

stated that house arrest started functioning very well, as well as the reprieve of the serving of the

punishment under probation sanction. What is still left to see is if these two alternatives will be

materialized in the official assessments.

The alternatives to detention are already in the law and they are available and possible. We will have to see

which of them will be more used by the judges.

The institutions involved in providing such services are probation services, local and county authorities,

NGOs, in partnership with the probation services etc.

4.2 What is the legislative framework of reference? Please distinguish between the rules influencing the development

and the usage of such measure.

-‐‑ Are there any legislative gaps (e.g. specific situations that are not covered or are ambiguous)?

-‐‑ Who should operate to fill up such gaps?

-‐‑ At what level does such the legislative framework apply? (e.g. local/national/international

level)

The reference legal framework, aside from the Tokyo regulation is composed of European Convention

on Human Rights (ECHR), European Council Level Standards, European Prisons Rules, European

Probation Rules on Dangerous Offenders 2014, UN Standards, etc. The convictions of Romania at the

European Court of Human Rights were also considered, aside from the fact that Romania is a member

state of the European Union and it has directives in the field, especially on the side of probation, which

was transposed in laws. Analyzing for 10 years the problems of criminal, procedural-criminal and

execution-criminal systems in Romania, they were an attempt to cover the legislation gaps, yet obviously

this will be seen in time. There is no perfect code covering absolutely all the situations for which society is

moving permanently, but by enforcing the new codes, an attempt was made for broad answers to be

given for those unforeseen situations to come.

Practitioners are the ones who must bring to the attention of legislative forums the ambiguities, the

unclear aspects and in particular the existing gaps in the law.

The legislative framework is applied with no exception on a national level.

4.3 What other conditions are necessary to effectively implement such alternatives (provided that

the legislative framework is already existing)? Please consider:

-‐‑ Personnel involved;

-‐‑ Facilities/infrastructures;

-‐‑ Electronic devices;

-‐‑ Other organizations/specialist bodies/NGOs…

Although in theory big steps were made for aligning the Romanian legislation to the international one,

practically there are still many things which have to be improved, starting from the need to train the

personnel, to perform training for the new Criminal Code. Yet the probation counselors, and not only

them, are in the stage of assimilating the legislation and applying it. In regard to infrastructure, approaches

have been done for equipping and improving work conditions for the staff working in Probation

Services, yet there are more things to finish. Certainly there is a great need for the support of the

community, of civil society and especially of the NGOs supplying assistance services for the persons

benefitting from alternative measures to imprisonment.

5. 5) Suggestions to identify and evaluate good practices

5.1 How would you define a good practice of alternative sanction? What are the fundamental

requirements?

-‐‑ Are such requirements transferable to any contexts (types of crimes, offenders, countries,

etc.)?

House arrest, the procrastination of the punishment, the reprieve of the serving of the punishment under

probation sanction, judicial control, judicial control on bail and criminal fine are six alternatives which

were given as examples of good practice by some of the interviewed actors. The main argument was that

the execution method is not depraving the criminal from his freedom and if they applied properly,

meaning if the quality of the intervention is good, these measures may become among the most efficient

alternatives to imprisonment. As mentioned ever since the beginning of this report, there are no official

information regarding the effectiveness of certain alternatives to the disadvantage of others, nor have

there been identified good practices upon alternative penalties. The actors with whom we discussed have

confidence in these alternatives to imprisonment that they consider being good practices, but their

perception is not based yet on official data.

Other good practices which were reminded by the interviewed persons are the ones upon counseling

programs which are performed with the condemned persons. Currently there are a few accredited

programs on a national level, certain individual counseling programs targeting the reduction of the risk to

relapse and there are programs for drug consumers when such persons exist under the Timis County

Probation Service, these have the obligation imposed by the court of following such a program within the

Center for Anti-Drug Assessment and Counseling in Timisoara which develops these programs. There is

another program called Drink and Drive and it is addressed to persons who drove under the influence of

alcohol, a very well thought program, which is fully a Romanian product though it is inspired from

outside the country… in the sense that in other countries as England they are applied for many years

now. These programs have been elaborated by the probation counselors from their practical experience

and from the features of our population.

Depending on the type of the crime, on the typology of the criminals and under the conditions stated by

the Criminal Code for applying such measures, the judge makes an individualization of the penalty. There

are a few conditions restricting the judge in applying such a measure, in taking a decision, yet beyond

these conditions, certainly anyone can benefit from such a measure, provided that they personally meet

certain conditions, one of which is to wish and to show a motivation to change.

In regard to programs which can be accessed by convicted persons, they can be applied in Romania in

any probation service anywhere in the country, but the type of the criminal is very important; thus, a

selection of the participants is made in order to access these programs, because the objectives of the

programs are various, they address to different categories of persons; for example one of the group

programs called “He thinks over and over and then he changes” has one condition: that the person is not

a drug consumer, so the target group is different from one program to another.

5.2 Another expert identified X, Y and Z as fundamental criteria/requirements. What do you think?

Experts have identified as criteria certain fundamental requirements upon good practices, as follows:

- The person is not removed from his living environment

- The person does not experiment the closed imprisonment system

- The person has other members of the family in his care

- The person pays taxes to the state budget and he does not represent a cost for the state

- The relapse rate is low (15% for the persons benefitting from an alternative measure to imprisonment)

The experts agreed unanimously that these criteria are solid elements for the promotion of alternative

measures to imprisonment, with the purpose of becoming good practices for the legal system in Romania.

5.3 Could you provide a successful example of such pre-trial and post-trial measures? Please

consider:

-‐‑ People involved;

-‐‑ Context (geographic area; active legislation; crime committed; etc.);

-‐‑ Type of alternative sanction;

-‐‑ Effectiveness of the measure;

-‐‑ Innovation of the measure;

-‐‑ Transferability of the measure;

-‐‑ Possible improvement;

-‐‑ Strengths and weaknesses.

The procrastination of the punishment and the reprieve of the serving of the punishment under

probation sanction : each of these two measures has the chance of becoming a good practice and this

depends of many factors involved, on the professionalism of the persons involved, on the motivation and

change desire of the criminal, on the involvement of society, by means of NGOs, by their people in the

end, because any criminal is the neighbor of someone, the parent of someone, the son of someone and all

these factors on a social level interfere in this process of social reintegration. There can be no references

made yet to the context, to the effectiveness, transferability, innovation, improvement, strong points and

weak points, from reasons that I reminded repeatedly in this report.

5.4 Could you think about an unsuccessful example? What did go wrong?

After a first official evaluation, we will be able to give such an answer.

Additional information

-‐‑ Are there other considerations on this topic you would like to share? (e.g. concluding remarks

on the future of alternatives to imprisonment)

Once the new Codes are enforced in Romania it is in the European trend, all the experts supporting the

alternatives to imprisonment even if it is not such a visible thing because resources are limited, but there

is a great confidence and hope in their effectiveness.




Union

Alternatives to imprisonment in Scotalnd

Davis Buls, Research Assistant Ruth Freeman, Professor of Dental Public Health Research

Scottish Oral Health Improvement Prison Programme (SOHIPP) Dental Health Services Research Unit (DHSRU)

University of Dundee, Scotland

Aim of the report

This report is based on semi-structured interviews with professionals working in different sectors of the

Scottish Criminal Justice System. The aim of the interviews was to solicit expert opinion on:

• the types of alternatives to custody available in Scotland in both pre-trial and post-trial phase;

• the effectiveness of such alternatives;

• the necessary conditions to implement such alternatives;

• the fundamental requirements of such alternatives.

The information in this report is based solely on the opinions of 4 experts from different parts of the

Scottish criminal justice system. Their views do not represent any official position of any governmental or

non-governmental organisations.

There are 32 different local authorities in Scotland. Each local authority is responsible for implementing

alternative measures to custody in their own area independently of other localities. The interviewees could

only talk about the locality they worked in and could not comment on the state of the matters outside

their area. Thus, the opinions presented here do not necessarily represent the situation in Scotland as a

whole and cannot be used to generalise about alternatives to custody in UK. In addition, interviewees

were also tentative in espousing a view about matters that directly did not relate to their area of expertise.

For example, a police inspector, although working in close collaboration with organisations that are

responsible for implementing non-custodial measures, could not comment on the effectiveness of

alternatives or how they were implemented. Similarly, the person working in the organisation that

implements alternatives did not know the relevant legislative framework and had only a general idea about

the exact role different actors played in the sentencing process.

Method

Four people agreed to take part in a semi-structured interview. The interviewees were recruited using the

snowball sampling technique: except the first one, all other interviewees were selected using the

suggestions of the previous interviewee. The first person was selected for their professional status and

knowledge of and extensive experience in non-custodial measures. Interviewees were informed about the

nature of the interview and were provided with an overview of the questions to be addressed in advance.

They were also informed that the participation was confidential and anonymous. The interviews were

about 1.5 hours in length with one interview lasting 2 hours.

Interviewee profiles

Interviewee 1: a senior staff member working for the Criminal Justice Social Work services which

implement non-custodial disposals.

Interviewee 2: a senior police inspector.

Interviewee 3: a defence agent with over 30 years of experience working in the field.

Interviewee 4: a sheriff with over 30 years of experience in the court system. The person had also

worked as a prosecutor in the past.

Interv i ewee 5 : It was planned to recruit the fifth interviewee from the procurator fiscal’s office. As per suggestion of

interviewees 3 and 4, I contacted procurator fiscal’s office in one of the Scotland’s localities. After an exchange of several

emails, it became clear that they did not want to take part in the interview. Their argument was that a person from their

office will not have knowledge and opinion on the value of different alternatives to custody as the subject lay outside their area

of expertise.

1. Arguments in favour of alternatives to imprisonment In general, greater effectiveness and lower cost were interviewees’ two main arguments in favour of non-

custodial measures. Community sentences are more effective than prison sentences in terms of reducing

reoffending and they are also less costly. Prison sentences are regarded as effective only in terms of

managing safety risks to the society by keeping the offender locked up and thus preventing them from

making any further crimes.

2. Pre-trial

2.1 Types of alternatives

The main ‘real’ alternative to detention in the pre-trial phase is bail. All of the interviewees have pointed

out that bail is granted by default unless the accused person is deemed to pose a serious risk to the public

or they are accused of a very serious crime which statutorily requires a prison sentence.

Depending on the nature of the circumstances of the crime and the characteristics of the accused person,

bail is issued with a set of standard conditions and it can also have special conditions44. In most of the

cases, bail does not require any supervision and is self-policed - there is no involvement from the police

(or other institutions) unless the accused breaches bail conditions (with the exception of curfew where

police might monitor compliance). If the accused violates one of the bail conditions, the breach is then

treated as a separate offence which is subject to different sanctions and punishment. Although mostly

self-monitored, the bail can in some cases be implemented by Criminal Justice Social Work45 (CJSW) who

can provide ‘bail supervision packages’ which can consist of:

• bail with mentoring (in the locality of one interviewee, only for specific offender populations:

young offenders, women and persistent offenders);

• supportive accommodation in a specific house (with various conditions: curfew, adherence to the

rules and regulations of the unit);

• a combination of the above (i.e., mentoring and accommodation).

In some areas the type of bail packages that are available might be limited by the resources at the disposal

of the local authority. For example, in the locality of one of the interviewees bail packages were not

available for the offender population as a whole: the largest share of the budget was in that locality was

used for implementing 'community sentences, court reports and custody throughcare' and relatively little

was allocated to pre-trial services.

44 The bail are described in the national report (p. 11).

45 Criminal Justice Social Work (CJSW) are services for offenders provided by the Scottish local authorities which implement

non-custodial measures.

Although not an alternative to detention in the pre-trial phase per se, the police inspector said that the

local police authority is trying to prevent people from getting into prison in the first place. The

interviewee mentioned a few innovative measures that had been successfully implemented in their locality

with young offenders (18 year olds and below) and low-level female offenders. Rather than bringing them

to court, the police and social workers try to divert these offenders to activities that can help address the

underlying causes of their offending behaviour (e.g., finance counselling for theft due to acquired debt)

before getting them involved with the criminal justice system. Such a diversion approach might be

adopted with adult males (18 to 25) in the future.

2.2 Strengths and weaknesses

The majority of the interviewees agreed that bail is an effective, and in most cases, a preferable alternative

to detention. All of the interviewees pointed out that bail is not a viable alternative only for repeat and

violent offenders and those who are suffering from serious cases of substance misuse, as the bail

conditions are likely to be not a serious enough of a deterrent from further offending for these offenders.

The strengths and weaknesses of pre-trial alternatives as identified by the interviewees are as follows:

Strengths:

• a less costly option than remand;

• allows for the offender to remain in the community (does not remove them from family ties and

social obligations);

• does not introduce them to the prison environment where they might be exposed to ‘criminally-

oriented’ social environment.

Weaknesses:

• risk to the victim and the public (if the accused re-offends).

2.3 Key actors

Target groups

In Scotland, most accused persons get granted bail unless they are:

• tried for an offence of personal violence or sexual offence and they have previously been

convicted with such offences on indictment;

• tried for a drug trafficking offence and have a previous conviction on indictment for drug

trafficking offence;

• believed to pose a risk to the public or witnesses.

Sentencing

The judge decides whether to grant bail or not. Their decision is explicitly influenced by the information

about the offender and the case presented to them by the procurator fiscal and the defence agent.

Interviewee 4 noted that procurator fiscal plays a significant role in terms of influencing the judge’s

decision regarding bail: ‘if the Crown fiscal is not opposing bail, then the accused is getting bail.’

Both the defence agent and the judge can also, if the accused ‘is already in the system’, be influenced by a

social worker report (from CJSW). The report is an assessment of the accused and normally includes

information, collated from a variety of different sources, about the pattern of previous offending

behaviour, accommodation status, family support, substance misuse issues, peer relationships, mental

health issues and other information which is meant to help the judge to decide whether to grant bail and,

if so, what special, if any, bail conditions to impose.

As to indirect influence, one interviewee mentioned that sometimes the defendant themselves can affect

the decision by what they say to the judge in court. In domestic cases, another source of indirect influence

on the judge’s decision can be a statement written by the spouse of the accused requesting for the

detained partner to be released.

The civil society has influence on the pre-trial alternatives only insofar as they’re able to affect policy

making and the legislation of bail conditions that should be imposed on the accused.

No other sources of influence were identified by the interviewees.

The following considerations are taken into account when deciding on bail:

• offending record;

• risk to the public;

• risk of flight;

• risk of reoffending during bail;

• risk to witnesses.

Implementation

If the bail does not require a supervision package by the CJSW, normally only police is involved in the

implementation of bail, and their involvement is usually limited to enforcing breach of bail conditions. It

is expected that the accused will abide by the bail conditions and police only gets involved if the

conditions are breached. In some cases police involvement might be more significant: for example, if the

accused has been given curfew, police might check if the person is in the place he or she is limited to.

If the bail condition requires supervision, then CJSW will organise the package which would include

mentoring or accommodation, or both.

2.4 Feasibility and main conditions

The Criminal Procedure Act of Scotland 1995 is the relevant framework that governs the use of bail as a

pre-trial alternative to detention and it is at a national level; the use of bail is also bound by the European

Human Rights legislation. The legislation governs what conditions should be put in place as part of bail,

but it does not specify how those conditions should be implemented practically; the latter is governed by

the performance framework (Criminal Justice Social Work Standards 46 ) which sets good practice

standards.

Bail is the only real alternative to detention in the pre-trial phase, and it is implemented. Interviewees did

not mention any other practices that are effective but are not implemented.

In addition, interviewees did not highlight any significant legislative gaps, not in the sense where

legislation was incomplete and did not cover certain situations. One interviewee said that a bail option

‘financial provision’ (a sum of money paid for the accused) is in the legislation, but is not applied almost

at all as its use is discouraged nowadays. The interviewee thought that ‘financial provision’ was effective

in ensuring compliance with bail conditions, but also noted that it acted as a bias against the poor who

could not always afford to pay the required sum of money. Another interviewee pointed out that the

recommendation of the law is not always followed entirely. The interviewee thought that the judges, to be

on the safe side, sometimes do not take into account all the relevant conditions when deciding on bail.

They would rely solely on the record of previous convictions and refuse bail only on the basis of that

without considering other relevant factors specified in the legislation.

One interviewee thought that the there was a gap between the legislation and the practice in relation to

electronic tagging. The interviewee said that the technology was not at the necessary level of

sophistication for implementing the surveillance at the desired level.

Interviewees stated that money and other necessary resources are needed in order to implement bail. No

specific conditions were specified since there are very few conditions that can apply to every case of bail.

Police supervision is a necessary condition in all of the cases since they get involved if there is breach of

bail; police involvement is higher for curfew where they can be asked to monitor compliance with the

46 http://www.scotland.gov.uk/resource/doc/344043/0114450.pdf

curfew conditions. Beyond that, the necessary conditions vary depending on what the circumstances of

the case and offender characteristics are. For example, if the accused has substance misuse problems,

addictions services will have to be involved; if the accused has mental health problems, mental health

services will need to be involved, and so on.

2.5 Suggestions to identify practices

There are no standardised programmes in the pre-trial phase that could be used as an example of a

successful approach. The interviewee who is a senior member of staff of the organisation that is

responsible for implementing non-custodial disposals said that the most fundamental requirement for a

successful bail approach is a proper assessment of the accused: The most important thing is to identify

the key risk factors and also the key need factors of the accused so that the most appropriate bail ‘package’ can

be imposed.

3. Post-trial

3.1 Types of alternatives

According to the interviewees, there are three main alternatives to a prison sentence in Scotland:

1. Community Payback Order (CPO);

2. Restriction of Liberty Order (RLO);

3. Drug Treatment and Testing Order (DTTO).47

Community payback order is the main non-custodial alternative as a community sentence. It can consist

of a combination of 1 or more of a total of 9 different 'requirements':

• supervision requirement;

• compensation requirement;

• work requirement;

• programme requirement;

• residence requirement;

• mental health treatment requirement;

• drug treatment requirement;

• alcohol requirement;

• conduct requirement48.

RLO is a restriction on the person's movements and location; DTTO is applied to persons who have

problems with substance misuse.

All of the alternatives are implemented in the local context and none of the interviewees could claim that

any alternative was more effective than others as each of the alternatives are designed for different

purposes. Some interviewees pointed out that it is hard to generalise about alternatives as a whole as there

are offender groups for which alternatives to custody do not work (e.g., repeat offenders and ones that

have committed serious crimes, offenders with serious substance misuse problems, or a combination of

these profiles). In general, the opinion of the interviewees was that, apart from the aforementioned

offender groups, the implemented alternatives are more effective than custodial disposals.

47 Some interviewees mentioned other alternatives that are available in the legislation fine, deferral of sentence ('to be of good

behaviour'), admonition and absolute discharge. However, the primary options, as identified by the interviewees, are: CPO, RLO and

DTTO.

48 For a brief explanation of each requirement, and the Community Payback Order in general, please refer to the national report

(p. 12).

Two of the interviewees' opinion was that the DTTO was not very effective in the way it is currently

implemented. The main reason cited for that was that this order is designed for the offender group that,

according to interviewees, is so entrenched in their offending behaviour and substance misuse that they

rarely follow through with the DTTO and, sooner or later, return to their old ways.

3.2 Strengths and weaknesses

The interviewees mentioned the following as strengths and weaknesses of alternatives to custody:

Strengths:

• flexibility (the order can be tailored to address the individual needs of the offender);

• cost (less expensive than imprisonment);

• allows for the offender to remain in the community (does not remove them from family ties and

social obligations);

• does not introduce them to the prison environment where they might be exposed to ‘criminally-

oriented’ social environment;

• reduces the likelihood of re-offending (offenders who have been on community sentences have a

lower re-offending rate);

• beneficial contact with professionals (mentoring) and services that are aimed to improve

offender's welfare;

• offenders receive guidance and support to deal with their problems while on non-custodial

orders;

• benefits the community via the work offenders do while they're on the order;

• offenders gain skills that they otherwise wouldn't acquire (e.g., routinely going to work,

vocational training);

• allows for the offender to pay back to the community for the harm done.

Weaknesses:

• risk to the victim and the public from re-offending;

• offender’s engagement with the order might not always be present (which undermines the point

of a CPO);

• might allow offender to remain exposed to the factors that predisposed to the offending

behaviour in the first place (e.g., maintaining existing peer relationships);

• might not be effective with repeat offenders, serious offenders or those with significant

substance misuse problems;

• in the current form, there is not enough leeway in the legislation/practice that allows for flexible

approach when things do not work out according to the initial plan (e.g., offender gets

imprisonment if he fails to comply with the CPO requirements when it might have just been a

lapse or relapse - a normal part of a process of trying to change one’s ways).

3.3 Key actors

Target groups

There are a few offender groups for which specific programmes have been developed to address their

offending behaviour as part of a community sentence - sex offenders and domestic violence offenders.

As with bail, most offenders will get a community sentence unless they have committed a crime that

statutorily requires a prison sentence or they pose a serious risk to the victim or the society. In general, a

distinction between serious and low-level offenders is made. It’s the latter that are the main target group

for community sentences and only serious offenders should receive a prison sentence. Other than that,

there are no specific target groups that get issued a community sentence.

The exact nature of the sentence given is determined by the individual characteristics of the offender and

the underlying causes of their offending behaviour. For example, two offenders can get completely

different sentences for shoplifting because the underlying reason for the offending behaviour is different

in each case. For one person it might be the need to maintain their drug addiction, for the other person it

might be greed combined with lack of self-control. In the first case, the offender might get a community

sentence with a requirement to attend drug addiction clinic; in the second case, the offender might be

required to undergo counselling to address the lack of self-control.

Sentencing

The actors involved in the sentencing process are similar to the pre-trial phase. The judge is the one who

ultimately decides what kind of sentence is imposed. Their decision will be influenced by the plea and

mitigation the defence lawyer in certain cases. The procurator fiscal, in general, has a much less role to

play than in the pre-trial phase (procurator fiscal can request a sexual offence prevention order, or a non-

harassment order in domestic cases, - both of which are designed to prevent the offender from

approaching the victim).

When deciding what kind of community payback order to impose, the judges engage in a much more in-

depth assessment of the individual and their offending behaviour in order to give the most appropriate

sentence possible. Their decision will be informed by an assessment of the offender that is carried out by

the CJSW who will take into account a variety of sources of information about the offender regarding his

family relationships, substance misuse issues, employment, offending history, among other factors. The

judge might also get statements, where appropriate, from a wide variety of professionals whose expertise

is relevant to the case in question: judges can get reports from social workers, clinical psychologists,

psychiatrists, drug experts and almost any member of the medical profession. References from the

members of the community can also be taken into account at this stage.

Victim impacts statements, a relatively novel feature of the Scottish Criminal Justice System, can also

influence the judge's sentencing decision. Victim impact statement is a document explaining the physical,

emotional and/or financial impact the crime has had on the victim. None of the interviewees specified

explicitly in exactly what way the sentencing decision will be influenced by this statement. They simply

noted that it's bound to have an effect on 'you' (as a judge) once you have read, for example, that

someone has been negatively affected by the crime to a degree that the consequences of the offence still

have an impact on the victim's life (e.g., having scars on the face from stab wounds and not being able to

look at oneself in the mirror without wanting to scream). One of the interviewees said that in a case like

that (i.e., where the offence has had a serious impact on the victim), if there is a doubt in judge’s mind

about what sentence to give, a victim impact statement can sway the decision in favour of imprisonment

as opposed to a non-custodial measure.

Interviewee 4, who is a judge of more than 30 years of experience, summarised the grounds for

sentencing as follows:

“Effectively, in your brain, what you are doing is this. You are looking at the crime, you are looking at the offender

and the bottom line should be: ‘what is the sentence that I could impose on this individual that is most likely to have the best

effect from the point of view of the society and the best effect from the point of the individual as well.’ If, when you ask the

first question, the answer comes: ‘society requires to be protected from this individual’, then the imprisonment is the only

option. But if that is not the answer to that question, then all the other options are available as far as I’m concerned. Then it

is a matter of putting together the best [CPO – D.B.] package.”

The civil society, as in the case of pre-trial phase, has only an indirect influence - they’re able to affect

policy making and the legislation of what the alternative measures and their conditions should be.

Implementation

The CJSW are coordinating the implementation of the CPO which normally has different aspects of it

delivered by different agencies depending on the exact nature of the order which will be determined by

the particular needs of the offender. For example, a community payback order with a work and mental

health requirement will require involvement of an agency that focuses on employability skills and another

agency that can address mental health issues. Police can also be involved in the case of breach of the

order.

4. Feasibility and main conditions

The Criminal Procedure Act of Scotland 1995 is the relevant framework that governs the use of

alternatives to custody, and it is at a national level. The legislation governs what conditions should be put

in place as part of CPO, RLO and DTTO, but the legislation does not specify how those conditions

should be implemented practically; the latter is governed by the performance framework (Criminal Justice

Social Work Standards49) that sets good practice standards (e.g., how quickly the offenders are meant to

complete the sentence; how quickly the offender is attended to, and so on).

One of the interviewees said that there is a gap between what the legislation provides and what is actually

implemented in practice. The interviewee referred to audit reports50 which have identified the 'patchy

nature' of the CJSW services across Scotland. The services are fragmented and are not transparent in

terms of what they provide and how they implement non-custodial measures. Not all community payback

order packages are equally available across different localities in Scotland. Some areas might not be able to

provide certain types of CPOs due to lack of resources. For example, a relatively rural locality might not

have mental health services available that can deal with a type of mental illness an offender is suffering

from. One interviewee’s opinion was that it was a problem that needs to be solved at the level of

leadership - governance that establishes the same performance framework across different authorities.

When asked about the necessary conditions, the interviewees pointed out that 'we need resources' to

work with the offender. It was hard for the interviewees to specify any concrete conditions as CPOs are

issued on the basis of individual circumstances of the offender. In general, a necessary condition for a

successful CPO is the need for good coordination among different agencies involved in the

implementation of the order: all the involved parties should be informed about the nature and the

purpose of the CPO so that it can be implemented smoothly.

3.5 Suggestions to identify practices

The relationship between the offender and the worker who is supervising the order was mentioned by all

the interviewees as the single most important aspect of a successful programme. Interviewees said that

the worker/supervisor of the offender needs to have credibility in the eyes of the offender, they need to

be somebody an offender can trust. A few interviewees mentioned that the most effective supervisor, in

their view, was someone that, for example, had gone through a similar experience (e.g., had been

convicted themselves) and could serve as an example that one can change one's life around.

49 http://www.scotland.gov.uk/resource/doc/344043/0114450.pdf 50 E.g., http://www.audit-scotland.gov.uk/docs/central/2011/nr_110906_justice_overview.pdf

The most fundamental requirements/principles of a successful offender programme, as indicated by the

interviewees, are:

• correct application of principles based on ‘what works' research;

• proper and accurate assessment that identifies the key risk factors and key need factors of the

offender;

• a plan which appropriately targets those factors;

• a flexible approach that meets the needs of the individual and allows for monitoring, review and,

if necessary, change of the order over time according to the progress of the offender;

• good offender-supervisor relationship that's based on active listening, empathy and an

understanding of the offender's needs; a relationship that includes realistic assessment on the

progress that can be made including lapse and relapse;

• coordinated, consistent, (sometimes assertively) proactive approach that is sensitive to time

limits;

• the punishment has to be acceptable to the society as a whole and it has to be public (so that the

reparation aspect of the order is visible);

• it has to have a rehabilitative effect on the offender.

SYNERGIA srl




Union

Comparative concluding remarks Synergia srl

Concluding remarks

The following report concerns the concluding remarks of the interviews conducted by the seven partners

to some country-experts on alternatives to detention. These remarks do not provide a complete snapshot

of the national system working on or dealing with this theme. In fact, this last aspect is covered by the

literature analysis provided by the partners. Thus, the alternatives presented in the following schemes are

not all the ones that are considered by the country legislation, but only the ones that are mentioned by the

experts.

1. Different types of alternatives to detention – pre-trial

Different types of alternatives to detention – pre-trial

Italy The pre-trial alternatives to detention are defined as precautionary measures (personal,

if there is the restriction of personal freedom):

• House arrest;

• Prohibition or duty to dwell in a given place;

• «Suspension of the criminal trial with probation»

Romania The mentioned pre-trial alternatives to detention are:

• Judicial control;

• Judicial control on bail;

• House arrest;

• Waiver from prosecution (one of the most effective methods).

Scotland (UK) • The most common alternative is bail (it is usually self-monitored, but there

can be ‘bail supervision packages’, which comprise bail with mentoring,

supportive accommodation in a specific house, or a combination of them).

• One of the interviewees said that in the locality where he/she lives there are

some specific alternatives to detention for young offenders (18 and below)

and low-level female offenders (adults). Their aim is to divert criminals to

activities that that can help them address the underlying causes of their

offending behaviour (for instance, a thieve has a financial consultancy that

helps him solve the financial problems that leads him to commit crimes). The

interviewee suggests that this program should be adopted also for adult males

in the future.

Bulgaria The mentioned pre-trial alternatives to detention are:

• Registration at the Prosecutor’s office;

• Bail;

• House arrest.

Germany The mentioned pre-trial alternatives to detention are:

• Electronic tag (there is an open debate about this measure, which for example

concerns net-widening effect, relapse prophylaxis, cost-benefits and security

issues).

• Suspension of an execution. This alternative shall be implemented when:

§ the execution of a warrant of arrest is merely justified by a risk of

flight that can be fully prevented through appropriate measures;

§ The execution of a warrant of arrest is motivated by the risk of

tempering with evidence, which can be adequately avoided, for

instance, through abstaining from contacts with co-accused persons,

witnesses, or experts may be considered;

§ There are grounds to assume that the accused will be able to be

compliant with some instructions and, thus, fulfill the purpose of the

detention

• In Bremen, there is a service for those who do not have a permanent address

and due to this are detained because of the risk of flight (NGO

Hoppenbank). This service is also provided in other federal states and allows

eligible accused to leave the pre-trial confinement or to avoid it and start

living in a therapeutic supervised accommodation. This service is also aimed

at offering the accused a good preparation for trial.

Latvia The mentioned alternatives to detention are:

• Notification in case of changing the place of residence;

• Reporting to the police authority at a specific time;

• Prohibition from approaching a specific person;

• Prohibition from specific employment;

• Prohibition from departing from the State;

• Prohibition or duty to dwell in a given place;

• Personal guarantee;

• Bail;

• Placement under police supervision;

• House arrest.

France The mentioned pre-trial alternative to detention is:

• Judicial control (curfew with electronic monitoring) (contrôle judiciaire). Pre-

trial detention can be pronounced only if this measure is not able to meet

some conditions provided by the law.

To summarize…

2. Different types of alternatives to detention – post-trial

Different types of alternatives to detention – post-trial

Italy The mentioned post-trial alternatives to detention are:

• Partial release from freedom;

• Home detention;

• Assignment of offenders to Social Services;

• Therapeutic assignment of drug or alcohol-addicted;

• Parole.

Romania The mentioned post-trial alternatives to detention are:

• Warning;

• Criminal fine (which could be converted into community work, if there is no

possibility of paying it);

• Procrastination of the punishment (one of the most effective methods);

• Probation prior to completion of punishment (one of the most effective methods);

• Agreement on admission of guilt.

Scotland

(UK)

The mentioned post-trial alternatives to detention are:

• Community payback order (CPO), which is a combination of 9 different

requirements (at least 1 or more);

• Restriction of liberty order (RLO);

• Therapeutic assignment of drug-addicted: Drug Treatment and Testing Order

(DTTO).

Bulgaria The mentioned post-trial alternatives to detention are:

• Conditional/suspended sentence à post-trial;

• Probation à post-trial;

• Parole à post-detention;

• Parole with probation supervision for the remaining period of the sentence à post-

detention

Germany The mentioned post-trial alternatives to detention are:

• Community service;

• Electronic tag (there is an open debate about this measure, which for example

concerns net-widening effect, relapse prophylaxis, cost-benefits and security

issues).;

• Procrastination of the punishment;

• Reduction and ease of the detention due to victim–offender-mediation;

• Probation is a possible result of victim–offender-mediation;

• Anti-violence training (which can present some security problems).

• Alternatives measures concern also those who failed to pay a fine. These alternatives

concern community service and training courses to help people manage their

finances.

Latvia The mentioned post-trial alternatives to detention are:

• Community service;

• Suspended sentences;

• Probation prior to completion of punishment;

• Probation programs (supervision, electronic monitoring).

France The mentioned post-trial alternatives to detention are divided depending on the phase of the

post –trial criminal justice system

• Sentencing phase:

- Penal constraint (probation plus community work sentence);

- Suspended imprisonment sentence with probation;

- Suspended sentence plus probation plus community work.

• Post-sentence:

- Ab initio conversion of custodial sentences. Sentences can be

transformed into a great variety other sentences or measures (e.g.

probation and community work, semi-freedom, EM and so on);

To summarize…

3. Main actors involved

Main actors involved

Italy Sentence phase

The prosecutor (“Pubblico Ministero”) presents his opinion to Surveillance Court

(“Tribunale di sorveglianza”),which consists of supervising magistrates, honorary

judges on whether to grant or not the alternative to detention.

Judges of the “Tribunale di sorveglianza” decide whether to grant or not the

alternative to detention. The condemned may appeal to the Italian Supreme Court

of Cassation.

Implementation phase

• Condemned;

• Educators, social services, psychologists, volunteers à work within jail;

• U.E.P.E. (along with local governments and police)à organize social

services.

Romania Within the law system, the main actors involved are:

• Police authority;

• Prosecutor à deals with criminal prosecution in all its aspects);

• Judge àtakes the decision;

• Probation services àmonitor the compliance with the obligations stated by

the Court and the person after executing the penalty or after the probation;

• Probation counsellors àresponsible for the application of alternatives to

imprisonment before and after the trial.

Without the law system, as external stakeholders, there are:

• NGOs à influence policies;

• Private citizens;

• Victims (their rights are in accordance with the European standards. Another

important aspect is protection).

Scotland (UK) Actors involved in the pre-trial alternatives:

Diversion

• Police and social workers (experimental in interviewee’s locality)

Sentencing

• Procurator fiscal and defence agent àpresent the case to the judge;

• Judge à decides whether to grant bail or not;

• Civil society àmay affect policy making and the legislation of bail

conditions that should be imposed on the accused.

• CJSW àprovides an assessment report for repeat offenders. This report

is optional.

Bail

• No supervision required: No involvement of the police (“bail is self-

policed”), which are responsible for the implementation and enforcement

of the rules. Police get involved if the offender breaches bail conditions

or if they need to check adherence to the conditions of curfew (if any).

• Supervision required: There are supervision packages organized by

Criminal Justice Social Work (CJSW): mentoring bail, supportive

accommodation in a specific house, a combination of these alternatives.

Actors involved in the post-trial alternatives (especially, Community Payback

Order-CPO-)

Sentencing

• The judge à decides on the type of sentence.

• Procurator fiscal and defence agent;

• Victim;

• Professionals;

• CJSW à helps the judge in understanding the kind of treatment that the

offender requires.

Implementation

• CJSWà coordinates the implementation of CPO requirements by

involving different agencies;

• Agencies/NGOs à organize specific services depending on the

individual needs and issues of the offender (e.g., counselling for mental

health issues; drug treatment for substance misuse problems).

Bulgaria The mentioned actors are:

• Judge à decision phase on the basis of the measures proposed by the

prosecutor (pre-trial) or after a report of the probation service

• Prison, arrests, Probation serviceà implementation phase

(imprisonment, probation, pre-trial detention)

• Victims (although they are not encouraged to participate);

• Civil societyà advocacy and campaigning , legislation amendments,

social service for offenders;

• NGOs à supporting role

Germany The mentioned actors are:

• Public prosecution àdecides about alternatives to detention;

• Court of Execution of Prison Sentences;

• Lawyers;

• Courts;

• Probation Service;

• Magistrate;

• Social service of justice à they are state institution which collaborate

with prisons, courts, private institutions and other state facilities;

• Prisons;

• “Freie Traeger” à Organisations (mainly NGOs) that receive public

funds and involve convicted into different activities, such as community

service, accompanying convicted upon instalment payment of imposed

fines, in group homes or running victim – offender violations).

This is not a victim-related system.

Latvia Pre-trial:

• Accused or suspect;

• Prosecutor (to choose a procedural compulsory measure that infringes

upon the basic rights of a person as little as possible);

• Court;

• Prison personnel;

• Providers of social services;

• Investigating judge (to understand whether a person is reliable or

not).

Post-trial:

• People who committed a criminal violation, a less serious crime, a

serious crime whose detention lasts between 3 and 5 years. It is

important to consider the personality and behavior of the convicted

person. The convicted should also fulfil some other specific criteria;

• Victim (who can count on the respect of the victim’s rights by the Court,

although the involvement of the victim in the punishment process is not

commonly used in practice).

France Pre-trial:

• College of investigation or judge of freedoms and detentions à may

order the judicial review;

• Probation service (called “State probation”) à are in charge of

supervision;

• Police à are in charge of supervision;

• Third–sector à are in charge of supervision less often, but they are said

to deliver more qualitative service;

Post trial:

• Court à pronounces the sentence of imprisonment along with penal

constraint;

• Judge à can implement or not the sentence;

• JAP (sentences’ implementation judge) or TAP (three JAP tribunals);

• Prosecutor.

To summarize…

Actors within legal and institutional system:

• Accused (pre-trial)/Condemned (post-trial);

• Police deals with investigative aspects or may be in charge of supervision;

• Prosecutor/Procurator (in Scotland, there are the “Procurator fiscal and defence agent ”;

while in Italy there is the “Pubblico Ministero”) à deals with criminal prosecution and may

propose alternative to detention to the Court that should decide about granting it or not;

• Judge/Courtà decides whether to grant ATD or not; in Italy this role is played by the

Surveillance Court (“Tribunale di sorveglianza”).

• Court of Cassation (Italy and France)à analyzes the appealed sentences;

• Probation servicesà monitor the compliance with the obligations stated by the Court and the

person after executing the penalty or after the probation; Bulgaria reminds of probation

counselors, who are responsible for the application of alternatives;

• Social services, psychologists, volunteers, educators àcollaborate with prisons, courts,

private institutions and other state facilities.

Country-specific actors within the legal and institutional system

• U.E.P.E. (“Uffici per l’esecuzione penale esterna”) (Italy)à are local and operative subjects of

the Penal Administration in charge of the social services coordination;

• C.J.S.W. (SCOTLAND ) (“Criminal Justice Social Work”) à organizes “supervision packages”

in the pre-trial phase; helps the judge to decide the best approach required for dealing with the

offender in the sentencing phase and coordinates the CPO services in the implementation phase.

• J.A.P. (“sentences’ implementation judge”) or T.A.P. (“three JAP tribunals”) (France)à

created for some release decisions pertaining to long-term sentences;

External stakeholders

• NGOS can influence policies or manage services related to alternatives to detention;

• Civil society/Private citizens can influence policies;

• Third sector, in charge of the supervision of ATD, though less often. They are said to deliver

more qualitative services.

Country-specific external stakeholders

• “Freie Traeger” (Germany) à Organizations (mainly NGOs) that receive public funds and

involve convicted into different activities, such as community service, accompanying convicted

upon instalment payment of imposed fines, in group homes or running victim – offender

violations.

The victim

• Romania, Scotland, Bulgaria and Latvia recognize the role of the victim in the legal

procedure/punishment, even though the latter two countries rarely encourage the active

participation of the victim in this process. Italy and Germany do not present a victim-related

system.

4. Main target of the alternatives to detention

Main target of the alternatives to detention

Italy Target depends on the entity of the committed crime, since alternatives to detention

are allowed for less relevant crimes: minor drug dealers and scammers, non-violent

burglars, drug addicted (the most studied group).

Romania There is no certain reference group. There are drug dealers as well as criminals who

committed patrimonial crimes (burglary, aggravated burglary, robbery, breach of trust,

fraudulent management, fraud, embezzlement, destruction, disturbance of possession,

concealment). These are accompanied by economic crimes, corruption crimes, drug

traffic, driving under alcohol influence, driving without a license, manslaughter.

Scotland(UK) Bail:

Anyone, with the exception of those who:

• tried for an offence of personal violence or sexual offence and have

previously been convicted with such offences on indictment;

• tried for a drug trafficking offence and have a previous conviction on

indictment for drug trafficking offence;

• believed to pose a risk to the public or witnesses.

Community Payback orders (CPO):

• Low-level criminals

• NO serious offenders, including sex offenders and domestic violence

offenders (who go on specific programmes tailored for their needs).

Bulgaria Offenders which can be granted alternative provisions depending on the features of

their case. Therefore, no specific target (although someone stressed the presence of

many programs involving persons convicted for drunk driving)

Germany It depends on the individual case (benchmark: severity of offenses; the suitability of

an individual to imprisonment; the suitability of an offense to an alternative to

detention)

Latvia Pre-trial:

• Accused or suspect

Post-trial:

• People who committed a criminal violation, a less serious crime, a serious

crime whose detention lasts between 3 and 5 years. It is important to

consider the personality and behavior of the convicted person. The

convicted should also fulfil some other specific criteria.

France Some target groups were mentioned when presenting the concrete alternatives to

detention at local and national level (although they are not likely to entail all the

involved categories). They are: dissocialized or homeless offenders, multi-recidivists

with psycho-social needs, sex offenders, offenders belonging to ethnic minorities (for

instance, Kanak tribes in New Caledonia).

5. Main advantages and drawbacks of the alternatives to detention

Advantages Drawbacks

Italy • Lower costs (economic

advantages);

• Low relapse rate;

• Constructive, not only

restrictive (it is a productive

factor and of improvement);

• More respectful of human

dignity.

• Not easily granted

• Lack of institutional,

personnel and economic

resources both within and

without prison;

Romania • ATDs allow not to lose contacts

with the community (more

possibility of recovery). Thus,

the person is not removed from

his living environment.

• The person has other members

of the family in his care;

• Relapse rate is low, because

alternatives are thought for the

persons who do not persist in

relapsing and who have the

chance to correct their wrongs

without being introduced to an

imprisonment system;

• Intervention programs aimed

to re-integration;

• They avoid overcrowding of

people;

• They are less expensive than

imprisonment;(which involves

costs of staff, food, clothing.

Moreover, the person pays taxes

to the state budget and does not

• Perception of the

community, which wants

criminals to be punished

because they do not see

condemned people as part

of the society (they see

imprisonment as the

realization of social

justice). Moreover, they

want a program that solves

the problems of criminals,

not one that helps them

reintegrate.

represent a cost for the State.

• No negative effects due to

closed environment (as it would

be in case of imprisonment);

• More efficient w.r.t.

effectiveness in the

rehabilitation of criminals

• They do not tear the rhythm of

the person’s life and his or her

environment

Bulgaria • Value for money (cost/benefit

ratio compared to prison);

• Reduction of the negative

impact of imprisonment;

• Easier reintegration of

offenders into society (more

effectiveness in the

rehabilitation and reintegration

of the offender);

• Reduction of the number of

prisoners;

• Synchronization with EU

standards and regulations;

• Family and community links are

not broken, unlike in the case of

prison;

• Need for less personnel than

prison;

• There is the safeguard of human

rights and human dignity (unlike

prison)

• ADTs involve less harsh

punitive element.

• Rigidity of the legislation;

• Little space for flexibility

and discretion by the judge

(the offender does not

receive a sentence that is

fully adequate to his/her

situation and needs);

• Underfunding.

Scotland(UK) PRE-TRIAL ALTERNATIVES: PRE-TRIAL ALTERNATIVES:

• Less costly option than remand

• Allow the offender to remain in

the community;

• Do not introduce them to the

prison environment where they

are exposed to a potentially

unfavourable prison

environment.

POST-TRIAL ALTERNATIVES:

• Flexibility (tailored to the needs

of the offender)

• Cost

• Remain in the community

• No introduction in the prison

environment

• Reduction of likelihood of

reoffending

• Beneficial contact with

professionals (mentoring) and

services that are aimed to

improve offender’s welfare

• Guidance and support on how

to deal with problems while on

non-custodial orders

• Offenders gain skills that they

would not if they were in jail

(routinely going to work,

vocational training,..)

• Allow the offender to pay back

to the community for the harm

done.

BAIL-SPECIFIC:

• Effective, in most cases, and

preferable to detention.

• Available for all, with the

• Risk to the victim and the

public (if the accused re-

offends).

• Not effective for offenders

with serious substance

misuse issues.

POST-TRIAL ALTERNATIVES:

• Offender’s engagement

with the order might not

always be present;

• Offender might be

exposed to the factors that

push him to commit the

crime;

• They might not be

effective with repeat

offenders;

• Not enough leeway in the

legislation/practice that

allows for flexible

approach when things do

not work out according to

the initial plan.

FINANCIAL PROVISION –

SPECIFIC:

exception of serious repeat and

violent offenders.

FINANCIAL PROVISION – SPECIFIC:

-Good compliance

• Bias against the poor

Germany • The detained is kept in his/her

social environment;

• Avoidance of the loss of work

and/or apartment and/or social

ties (ATD also allow preserving

family from the loss of a source

of income); a fixed daily routine

and an healthy environment

have a stabilizing effect;

• Low relapse rate;

• Allowance of new future

perspectives, finding a job,

treatment (drug-addicted) and

self and impulse control (violent

criminals);

• People are taught how to deal

with the causes of the offences

they committed (the same

intensity can neither be reached

through pre-trial confinement

nor imprisonment after trial ;

• Avoidance of the transmission

of criminal techniques;

• Cheapness (cost/benefit

relation, which concern both

economic advantages and the

prevention of relapse);

• In conclusion, there is better

rehabilitation and stabilization

of the accused.

• Not every eligible person

would be reached and a

“best selection” would

occur. This means that not

all the eligible people

would have the economic

and work requirements

(for instance, the case of

electronic foot chain);

• Not enough attractive for

some inmates;

• Not available for those

who do not speak the

native language (linguistic

barriers);

• Dependence on public

budget.

Latvia • Economic and social advantage

• They allow to provide for the

• Insufficient social support

system (this weak point

family, which is a preventive

factor

• Community work leads to

concrete savings for employers.

• Alternatives to detention deals

with the causes of criminal

offences and with the individual

approach to each offender.

Therefore, these interventions

enable specialists to influence

the values of the offender, to

change the way a person thinks

and to foster a shift in attitude

while considering the

sociopsychological needs of the

offender, to change the way a

person thinks and to foster a

shift in attitude while

considering the

sociopsychological needs of the

offender and adjusting the

intervention to the required

extent.

• Person remains within society,

does not lose social contacts

and can remain financially and

economically active;

• Effectiveness of rehabilitation

and reintegration of offenders;

• Cost benefits

• They allow a reaction that is

proportional to crime.

concerns mainly people

who are released prior to

completion of

punishment)

• Pre –trial : They do Not

always concern people

who are responsible and

willing to follow

limitations;

• Pre-trial: limited capacity

of authorities to control

implementation of these

security measures;

• Post-trial: there are

individuals that expect to

be punished through

alternatives rather than

through deprivation of

liberty (tendency to

commit more crimes

without paying for them)

To summarize…

Advantages Drawbacks

• Lower costs (since 1) ATDs have less costs of

staff, food, clothing,.. and 2) the condemned

pays taxes and does not weigh on public

budget);

• ATDs are not easily granted. This may

also be due to a rigidity of the

legislation;

• Low relapse rate; • The perception of the community

towards ATDs is usually negative;

• ATDs are more respectful of human dignity

and human rights;

• Lack of institutional, personnel and

economic resources. Moreover, there

may be an insufficient social support

system. In some countries, a strong

dependence on public budget could be

present;

• ATDs do not tear the rhythm of a person’s

life: the accused/condemned does not lose

social contacts, work and/or apartment.

Moreover, he/she provides for the family and

does not deprive it of a loss of income.

• There may be a “best selection”. This

means that not every eligible person

would be granted an ATD.

• There is not the negative impact of

imprisonment (which consists of the closed

environment experience);

• In both the pre-trial and post-trial

phases, there could be a limited

capacity of the authorities to control

implementation of these security

measures

• ATDs are effective in the rehabilitation and

reintegration of criminals

• ATDs are constructive, not only restrictive,

since offenders gain skills that they would not

have if they were in jail, pay the community

the committed harm and are taught how to

deal with the causes of the offences they

committed. Moreover, ATDs allow for new

future perspectives through the finding of a

job, a treatment (drug-addicted) and self and

impulse control (violent criminals);

• ATDs avoid overcrowding of prisons

• ATDs allow for effective reintegration and

rehabilitation of prisoners.

6. Main obstacles and necessary conditions for the implementation of alternatives to detention

Main obstacles for the implementation of alternatives to detention

Italy The main obstacles entail:

• Little pragmatism in spite of the multiple “cognitive” resources;

• There is no willingness (especially political) to state that alternatives to

detention are more efficient than detention itself.

Scotland(UK) Obstacles of bail (pre-trial):

• Legislation gaps (not worth worrying):

-‐ “financial provision” (a sum of money paid for the accused)is not

implemented because its use is discouraged nowadays (although it is

in the legislation).;

Post-trial:

• There is a gap between what the law provides and what can be actually

implemented in practice. There are audit reports that remark the “patchy

nature” of the CJSW services across Scotland. - They are fragmented and

non-transparent in terms of what they provide and how they implement non-

custodial measures in different Scottish localities (e.g., there may be places,

which are not able to offer certain types of CPOs or fulfill all of the possible

CPO requirements.);

Germany • The “Freie Träger” decide to use their alternative to detention in the

individual case. Due to this, the selection procedure might exclude difficult

cases in order to increase the success rate (relapse rate).;

• It seems that media often reports negatively on alternatives to detention;

• Lack of outcome evaluation, although it is quite complicated to perform it

well when analyzing these issues.

Latvia There are some gaps in the legal framework, but they are not necessarily an obstacle.

France • Lack of outcome evaluation: lack of knowledge in evidence-based practices;

• Strong resistance to criminology and to English language literature;

• Terrible financial state of French criminal justice system, which prevents

alternatives from being fully convincing both for decision-makers and public

opinion.

Necessary conditions for the implementation of alternatives to detention

Italy The mentioned necessary conditions are:

• Focus on the person itself;

• Need for “social detention” (structures with specialized operators);

• Judicial Authority should carry out consultations with the local human and

economic resources through agreements and memoranda of understanding.

• Need for decentralization and a central site of probation, which has a

specialized personnel and has the duty of managing all the alternatives.

• It is also important to involve private non profit entities in the re-education

of the convicted .

Romania The mentioned necessary conditions are:

• Need for trained personnel, especially regarding the new Criminal Code;

• Need to improve and equip the work conditions of Probation Services

personnel;

• Need for more support of the community , civil society and NGOs.

Scotland(UK) Pre-trial:

• Resources;

• Police supervision, if required;

Post trial

• Resources (e.g., mental health services for offenders with mental health

problems).

• Good coordination among different agencies involved in the implementation

of the orders.

Bulgaria The mentioned necessary conditions are:

• Need for more spreading out of electronic monitoring;

• Flexible legislation;

• Lack of personnel raised in a good quality manner;

• Facilities/infrastructuresànecessity for more funding to make rehabilitation

more effective;

• Necessity of more involvement of NGOs, specialist bodies and other

organizations;

• Need for more interagency cooperation.

Germany The mentioned necessary conditions are:

• Reliable structures with fixed structures which implement the measures as

agreed;

• Cost-effectiveness;

• Less dependence on public budget to have a solid and reliable basic funding;

• Competition among different structures;

• Enhance the responsibility of people.

Latvia The mentioned necessary conditions are:

• Strong legal framework, since it is a crucial precondition for the

implementation of alternatives to detention;

• Resources (financial, personnel and capacity);

• Awareness raising and educational measures for effective application of

alternatives (for society at large and practitioners working in the field);

To summarize…

Main obstacles

• In some countries, there is no political willingness of spreading out the use of alternatives to detention.

Moreover, media contribute to depict a negative picture of these measures;

• There may be differences in the possibility of implementing alternatives to detention at regional level

due to financial or logistical problems ;

• There may be an unfair selection procedure of individuals due to the exclusion of difficult cases

(offenders), in order to increase the success rate of a particular measure. Moreover, there may be a lack

of outcome evaluation.

• Some countries present gaps in the legal framework (although they do not see it as a source of serious

concern). There could be also a gap between what the law provides and what is actually implemented

in practice.

• There may be a lack of financial resources or a resistance to allocate adequate funding to implement

this kind of measures;

Main necessary conditions

• Trained and qualified personnel dealing with alternatives to detention. Moreover, the conditions of the

personnel responsible for implementing such measures (e.g. Probation Service) should be improved;

• More involvement of NGOs, civil society and community;

• More financial resources;

• Good interagency coordination;

• Countries where the alternatives to detention are mainly supervised by the State wish a more

significant involvement of private sector in the implementation of ATDs (for instance, private non-

profit entities). Moreover, the introduction of competitive mechanisms should reduce the dependence

of ATDs on public budget and make them more cost-effective.

• Presence of reliable structure and specialized operators which implement the measures as agreed.

7. Suggestions for the identification of good practices

Suggestions for the identification of good practices

Italy Reported suggestions

It is necessary to know:

1) the person

2) The personality of the condemned

3) The path that he/she is willing to follow.

4) Thus, revision of what was committed in the light of past experiences, the

personality of the subject and the type of his/her crime.

EXAMPLES

Successful experiences:

1) CEC (Comunità Educante con I carcerati-PGXIII)

2) ACERO (Regione Emilia Romagna).

Unsuccessful experiences:

• House arrests and home detention (because they have no rehabilitative aim);

• “Sfolla-carceri”(because it makes personal freedom depend on funds

availability);

• Alternatives that are too much indulgent and easy-going. à alternatives

should not be a prize, but a serious and severe path.

Romania Reported suggestions

• House arrest , the procrastination of the punishment, the reprieve of serving

of the punishment under probation sanction, judicial control, judicial control

on bail and criminal fine are considered successful experiences because they

do not deprive criminal from freedom and because if they are properly

applied they are the most efficient alternatives to detention;

• Counselling programs with condemned persons;

• Drink and Drive program for people who drove under the influence of

alcohol;

• Individualization of the penalty;

• Procrastination of the punishment (because it is good for social

reintegration);

• Reprieve of the serving of the punishment under probation (because it is

good for social reintegration).

Ideal alternatives to imprisonment are considered:

• Probation

• Fines structured with daytime fines

Scotland(UK) Reported suggestions

• Pre-trial (bail):

- Proper assessment of the accused: identify key risk factors and key need factors of

the accused so that the most appropriate bail package can be imposed.

• Post-trial:

The relationship between the supervisor/worker and the offender should be credible

in the eyes of the offender (e.g., the supervisor should serve as an example; ideally it

should be a person with a similar life experience and thus could gain more trust and

cooperation from the offender );

• Requirements of a successful offender programme:

- Correct application of principles based on ‘what works approach’;

- Identify key risk factors and key need factors;

- A plan which can appropriately targets those factors

- Flexible approach that meets the needs of the individual and allows for monitoring,

reviewing and, if necessary, changing the order over time according to the progress of

the offender.

- Good offender-supervisor relationship that is based on active listening, empathy and

an understanding of the offender’s needs coordinated, consistent and proactive

approach that is sensitive to time limits;

-Punishment has to be acceptable to the society as a whole and it has to be public;

-It has to have a rehabilitative effect on the offender.

Bulgaria Reported suggestions

• They identified only one good practice, e.g. the reduction of the prison

sentence when the inmate is working, studying, training or attending

programs/intervention.

Germany Reported suggestions

• A good socio-, legal-and domestic policy strategy is best for crime prevention

purposes and therefore can be seen as a good way to prevent imprisonment;

• However, the choice of positive effects depends on every single case, The

question regards which alternative to imprisonment would fit perfect for

which person;

• High empathy of social workers.

Latvia Reported suggestions

• High level of individualization and adjusted content of intervention.

• Alternatives to detention should be customizable in accordance with the risks

and the needs of the offender and must have an impact on the way offender

thinks, on one’s values and understanding of what is acceptable within the

society;

• Alternatives should not be more repressive than necessary;

• Alternatives should be used in combination;

• They should represent a balance between the goals of criminal proceedings

and rights of the suspected or accused person.

France Reported practices

Pre-trial stage:

• Pre-sentence supervision plus housing for highly dissociated offenders (meets

most of the offenders’ needs and save them from imprisonment; however, its

financial stability is unsure since it is a local initiative);

• Differentiated Supervision (high quality; unfortunately, no EBP);

Probation and release:

• Reinforced support (similar to Differentiated Supervision);

• Release plus housing and supervision (similar to Pre-sentence supervision

plus housing for highly dissociated offenders);

• Reoffending prevention group work (innovative; no EBP; however,

theoretical grounds seem to be poor).

To summarize…

• It is necessary that each penalty suits the characteristics of the accused and/or the condemned.

The choice of the ATD according to its potential positive effects on the person

accused/condemned indeed depends on every single case. The question regards which the most

appropriate alternative to detention for the each individual is. Thus, it is necessary to know: the

person, his/her personality (for instance, his/her risks and needs, values and the understanding

of what is acceptable within the society), the path that he/she is willing to follow;

• Alternatives to detention should be evidence-based, tailored to the risks and the needs of the

offender and must have an impact on the way offender thinks, on one’s values and

understanding of what is acceptable within the society. In fact, they should have a rehabilitative

effect;

• Flexible approach that meets the needs of the individual and allows for monitoring, reviewing

and, if necessary, changing the order over time according to the progress of the offender;

• Trustworthy relationship between the offender and the supervisor: the relationship between the

supervisor and the offender should be credible in the eyes of the offender. This relationship

should be based on active listening, empathy and understanding of the offender’s needs.

7.1 Some examples of good practices from mapped ones

Country Name Aim Strengths

Italy C.E.C. –

“Comunità

educante con i

carcerati”, e.g.

Educational

Community with

convicted

The aim of CEC is the

rehabilitation and

reeducation of the

convicted.

There is a strong focus on the individual:

• The convicted should analyze his/her

living before the conviction and the

reasons that lead him to commit the

crime;

• The timing of the rehabilitative process

depends on the person and the crime

he/she committed;

• There is the involvement of the family

of the condemned (and also civil society

and local community);

• Working has an educational and

compensative role towards society.

Romania Procrastination

of the

punishment

This measure is

imposed by the court if

the person charged has

agreed to do

community work, had a

good behavior prior to

committing the crime,

has made the efforts to

alleviate or eliminate the

negative consequences

of his acts.

This practice is quite interesting because the

Court may impose on the person whose

punishment has been procrastinated the

following rules (as well as other technical ones):

• Attend educational or competence

courses;

• Do community work;

• Attend one or more programs of social

integration;

• Medical control and treatment

measures.

France Reenforced

support

The goal of Reenforced

support lies in creating

additional support for

multi-recidivists with a

host of psychological

needs, as state

probation was not in a

capacity to supervise

The strengths that make this practice good

according to the above-mentioned criteria are

the following:

• Helping people with multiple high level

risks of reoffending and multiple needs

(such as a lack of agency), which state

probation is no longer in a capacity to

supervise adequately;

and support them

adequately (there is also

another variant of this

program, which is

dedicated to less risky

subjects).

• ‘differentiating’ practices depending on

offenders’ level of risk and needs.

Moreover, there is a differentiation of

support due to no or little agency;

• Limiting incarceration by offering

courts a more convincing and credible

form of supervision and offender

support.

• Psychological support and coaching for

participants.

Latvia

Suspended

sentence and

community

service

This practice consists of

a suspended sentence

(granted if the offender

is not likely to

committing a violation

again) applied together

with community service

as additional

punishment.

There is a good work on the individual:

• Avoidance of the exclusion of the

individual from his/her social circles

(work, families, schools);

• Suspended sentence allows working on

the way the offender thinks, improving

person’s understanding of values and

what is acceptable within society and

dealing with person’s addiction that

could be the root cause of offending;

• Community service constitutes an

additional punishing factor, which

obliges the person to work for the

society

Scotland(UK)

The community

sex offender

Groupwork

Programme

CSOGP is a nationally

accredited programme

based upon research

into what works to

prevent sexual re-

offending.

• The program focuses on how the

thoughts, attitudes and emotional

responses of sexual offenders are linked

to their abusive behavior. For this

purpose, there are specific treatment

modules.

• At the end of the programme,

offenders draw up an action plan to

manage their risk of offending;

• Offenders characterized by a lower

level of deviance and risk of harm to

victims may be admitted to shorter

programs (thus, this program takes into

account the dangerousness of the

offender).

Germany

Anti-Violence-

Training “AGT-

Stress”

Anti-violence program

is designed for people

without high impulse-

and self-control,

independent from their

age. Participants have to

absolve a training for

re-socialisation or to

avoid a penal procedure

(as a probation

requirement). Hence,

they should acquire

social skills in order to

deescalate in

threatening and difficult

situations, to avoid anti-

social-behaviour and

violent excess.

• The attendants of the courses should

analyze their own Achille’s heels ( the

trigger points of their aggression) and

learn how to deal with them. Thus, they

can use the prosocial knowledge

acquired during the training sessions in

stressful situations;

• The needs of the potentially violent

person are the key focal point;

• The innovation of this project consists

of its massive practical side (not only

transfer of knowledge, but also training

of the participants). The training

involves outdoor education and

evidence-based methods. Beyond

communication, trust, confrontation

and strategic exercises, there are also

group-discussions, bio- and video-

feedback and conflict- and stress-

simulations;

• Participants can test what they learnt

about emotional- and self-control in

intensive and close-to-everyday life

situations (especially in the framework

of juvenile delinquency).

• Unfortunately, there are some

drawbacks of this kind of intervention:

staff are required very high standards

and can be physically assaulted during

practical sessions, such as stress- and

conflict simulations.

Bulgaria Automatic

reduction of

prison sentences

This measure foresees

that a prisoner who

accepts to be engaged

in some activities

outside prison

(working, training,

educational, corrective

interventions) can have

his/her sentence

reduced. The aim of

this measure is to

motivate the inmates to

take part in initiatives

that should favour

his/her rehabilitation

path and to reduce the

length of prison

sentences. The

introduction of this

alternative to detention

also led to the reduction

of prison overcrowding

in Bulgaria.

• This practice supports the reintegration

of the condemned;

• It spurs the motivation of the offender

to get work skills, discipline, education

and qualification;

• It provides a possible mitigation of the

phenomenon of prison overcrowding;

• Unfortunately, not everyone can take

part in this alternative measure. It

strongly depends on the availability and

skills of the offenders.

Guidelines Description of the activity:

Each national working group will carry out 5 in-depth interviews to some key informants.

Aims:

The in-depth interviews will contribute to:

-‐ Integrate and further expand the knowledge on different non custodial measures;

-‐ Identify and assess different practices of alternative sanctions;

-‐ Gain useful information and criteria to assess and select the best practices.

Who:

§ Every national workgroup is responsible for carrying out 5 in-depth interviews and delivering a

national report with the main results (about 10 pages).

§ Synergia is in charge of collecting all the different national reports and elaborating some comparative

conclusions, which will be presented during the second Online Meeting (to be carried out at the end

of December)

Method:

The following indications will help the partners to carry out the interviews to the key informants in a

similar way, so that the results can be compared:

-‐ 5 interviews will be carried out in each country;

-‐ Ideally, the interviews will be carried out to different professionals and experts playing different

roles in the criminal justice system. The interviewees will be chosen because of their specific

knowledge or expertise on non custodial measures, and can belong to the following categories:

o Legislators, legal drafters, law reform commissions and policy makers;

o Judges, judicial officers, members of the judiciary;

o Lawyers (especially defence lawyers);

o Police, law enforcement authorities, prosecuting authorities, prison authorities

and probation officers;

o Volunteers and members of non-governmental organizations.

Since each country will just carry out 5 interviews, it is of paramount importance to choose carefully the

key informants, making sure that – regardless their institutional role or profession – they have a deep and

comprehensive knowledge of the matter (alternative sanctions and non custodial measures). Preferably,

each workgroup will select key informants belonging to each of the above-mentioned categories.

-‐ Some common interview guidelines will be shared among the partners (see Annex 1) giving some

indications about the areas/issues that need to be investigated during the interview. The

interview guidelines, drafted by Synergia, will be discussed and validated during the meeting;

-‐ Each interview will last about 1 hour/1 hour and 30 minutes;

-‐ The interviews shall be audio-recorded in order to subsequently transcribe them; the anonymity

of the interviewees will be guaranteed and they will be informed about the purposes of the

interview and the main aims of the project.

-‐ When carrying out the interviews, we suggest that you bring with you a mapping form (see

Annex 2) so that you can eventually collect information on practices/services described by the

key informant which could be useful for activity 1.4.

-‐ The “snow ball” technique is recommended in order to identify both other key informants to be

interviewed and good practices to be mapped.

-‐ In order to make the national reports comparable, we suggest that you organize it into different

sections, following the same structure of the interview guidelines (see Annex 1: e.g. write the

report dividing the main results into 5 different sections, according to the 5 different areas that

need to be investigated during the interview).

Timing:

The interviews will be carried out between 22nd of September and the end of November. The national

reports need to be sent to Synergia by the 28th of November.

Output:

The final output will be a Qualitative transnational report based on the results of the interviews (national

reports and comparative conclusions, about 90 pages).

Draft interview Types of alternatives to imprisonment

This section aims to explore what are the alternatives to imprisonment and which types are implemented by the judicial

system.

1.5 To your knowledge, what are the main alternatives to imprisonment?

1.6 Let’s focus on pre-trial alternatives. What are the main pre-trial alternatives?




1.7 Let’s focus on post-trial alternatives. What are the main post-trial alternatives?




1.8 What are the main arguments (political, social, philosophical, economic, etc.) used to design and

implement alternatives to imprisonment?

Strenghts and weaknesse s o f a l t e rnat iv e s to impr i sonment

This section aims to understand the main strengths and potential limitations of different alternatives to imprisonment and

their implementation.



2.6 Could make a comparison between such alternatives and imprisonment? Consider the following

aspects:

-‐ Costs/benefits;

-‐ Personnel involved;

-‐ Punitive element (how to identify it and how it is perceived by offender/victim/society);

-‐ Effectiveness in the rehabilitation and reintegration of the offender;

-‐ Safeguard of human rights and human dignity.

Ident i f i ca t ion o f the key ac tor s invo lv ed

This section aims to identify the main actors involved both in pre and post trial phase and the role they play in implementing

alternative sanctions.


-‐ What kind of crimes are most likely to be punished with alternative sanctions?

-‐ What kind of characteristic should the offender have? (e.g. are there special categories? What is the

socio-demographic profile?)

3.6 What is the role of the victim? (e.g. victims are heard, victims are informed, victims may co-decide,

restoration of harm to victim, etc.)

3.7 What is the role of the civil society? (e.g. in debates and policies)

3.8 What other key actors are involved in implementing such measures (both pre and post trial)?

-‐ What role do they play?

-‐ Who is in charge of making the decision and on which ground? (e.g. police, public prosecutor, court,

investigating judge, etc.)

-‐ Who has an influence on such decision?

-‐ Who are the professional involved in implementing alternatives to detention (both pre and post trial)?

-‐ Are there other institutions/organizations involved? What role do they play?

Ident i f i ca t ion o f the f eas ib i l i t y and main condi t ions to implement a l t e rnat iv e s to de t en t ion

This section aims to identify which conditions are necessary to implement alternative sanctions and their feasibility.

4.4 Are all the alternatives already available/feasible?

-‐ If not, what would make them available/feasible?

-‐ What are the institutions which should make such alternatives available/feasible?

4.5 What is the legislative framework of reference? (e.g. Tokyo Rules)

-‐ Are there any legislative gaps?

-‐ Who should operate to fill up such gaps?

-‐ To what extent does the legislative framework apply? (e.g. local/national/international level)

4.6 What other conditions are necessary to effectively implement such alternatives (provided that the

legislative framework is already existing)? Please consider:

-‐ Personnel involved;

-‐ Facilities/infrastructures;

-‐ Electronic devices;

-‐ Other organisations/specialist bodies/NGOs…

Sugges t ions to iden t i f y and eva luate good prac t i c e s

This section aims to collect information on the criteria to identify good practices related to alternatives to

imprisonment

5.1 How would you define a good practice of alternative sanction? What are the fundamental

requirements?

-‐ Are such requirements transferable to any contexts?

5.2 Another expert identified X, Y and Z as fundamental criteria/requirements. What do you think?

5.3 Could you provide a successful example of such pre-trial and post-trial measures? Please consider:

-‐ People involved;

-‐ Context (geographic area; active legislation; crime committed; etc.);

-‐ Type of alternative sanction;

-‐ Effectiveness of the measure;

-‐ Innovation of the measure;

-‐ Transferability of the measure;

-‐ Possible improvement;

-‐ Strengths and weaknesses.

(Please note that this information can be used also to fill out the mapping forms – activity 1.4. Please verify that

all the fields can be filled out).

5.4 Could you think about an unsuccessful example? What did go wrong?

ADDITIONAL INFORMATION

-‐ Are there other considerations on this topic you would like to share? (e.g. concluding remarks on the

future of alternatives to imprisonment)

-‐ Could you suggest us additional relevant materials concerning this topic?

-‐ Could you put us in touch with other experts on this topic?

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