The cross-border enforcement of probation measures and alternative sanctions in the EU: The poor application of Framework Decision 2008/947/JHA

Framework Decision 2008/947/JHA (FD) is an act of the EU concerning cooperation in criminal matters between national judicial authorities. It facilitates the recognition of final judicial decisions imposing non-custodial sentences across the Union, to allow the cross-border enforcement of probation measures or alternative sanctions (see the measures listed in Art. 4). As such, this instrument is part of the EU toolbox governing the cross-border transfer of offenders, because it enables a person to serve his/her sentence in another Member State. In fact, it is complementary to FD 2008/909/JHA on the transfer of prisoners and to FD 2009/829/JHA concerning the European Supervision Order.

The FD fulfils two major tasks. Firstly, it addresses the reluctance of national courts to issue probation measures and other forms of alternative sanctions, when they have no clue as to if and how they will be effectively enforced abroad. Research shows that when a foreign national is at issue – regardless of whether he/she is an EU citizen or a third country national – those who would have normally qualified for more open regimes are instead more often imposed a measure of confinement, unless they are expelled from the Member State involved.

Secondly, the FD provides the opportunity to identify the best place for enforcing non-custodial or probation sentences in the EU Area of Freedom, Security and Justice, thereby maximising the sentenced person’s chances of social rehabilitation, while also protecting the victim and the general public

To do so, the act under consideration follows in the footsteps of the other EU instruments on mutual recognition. For instance, it minimises procedural formalities and obliterates the intervention of the political branch, to set up a purely judicial and technical cooperation mechanism. In addition, it imposes the recognition of a foreign judicial decision as a rule, which accepts limits only when the executing judicial authority invokes one of the compulsory grounds for refusal exhaustively listed by the FD itself (Art. 11).

In principle, the scope of application of FD 2008/947/JHA is wide, as it covers all the main types of non-custodial sentences and decisions which a national court could issue. This means that the number of potential beneficiaries is relatively high, or at least in line with the personal scope of application of the more successful coeval FD 2008/909/JHA.

However, more than ten years after its adoption, this instrument is far from deploying its potential. Its application at the national level is overall unsatisfactory, with no exceptions across Europe. For instance, at the beginning of 2019, Italy had a record of only 31 procedures pursuant to FD 2008/947/JHA, Romania was stuck at 14 and in Spain the number of cases was even lower (as indicated by ongoing research).

As a cascade effect, not to speak about the limited academic researches on the topic, this critical state of affairs leaves many of the legal knots hampering the full effectiveness of this act unresolved, due to the very few opportunities for the Court of Justice and the national courts to provide useful interpretative guidance.

The poor application of this mechanism of judicial cooperation has four main explanations. Firstly, the implementation of the FD was belated in most Member States, who benefited in full of the extension of the Third Pillar regime during the five years transitional period following the entry into force of the Lisbon Treaty. Before the transposition of the FDs, the national authorities had to resort to the pre-existing Convention of the Council of Europe of 1964 on the Supervision of Conditionally Sentenced or Conditionally Released Offenders, heavily influenced by a traditional intergovernmental approach.

Secondly, as it is for all ‘minor’ bricks of the EU judicial cooperation edifice, the national competent authorities, the defence lawyers and the potential beneficiaries are very often unaware of the availability of this procedure and/or of its functioning. And if they do, they face a variety of further impeding factors such as unclear national legal frameworks governing the cooperation mechanism at issue, disputed allocation of tasks and responsibilities between domestic authorities or, sadly enough, more pressing priorities in the management of their heavy workload.

Thirdly, probation measures, alternatives to detention and the supervision thereof are often limited in time. Although mutual recognition allows the judicial authorities involved to speed up the procedure, the strict time limits prescribed by the FD (Art. 12) are regularly unattended. The risk of having the sentence expired or about to expire while the procedure is pending is a significant discouraging factor.

Lastly, but most importantly, the actual scope of application of this instruments is a matter of discussion at the national level. Art. 2 of the FD identifies some categories of non-custodial sentences and provides a definition of their essential features: suspended sentence, conditional sentence, alternative sanction, probation decision, conditional release. It is likely that specific domestic measures – or some of their forms – do not correspond to these definitions, because of the broad wording of the FD and the quality of the laws of implementation. Then, serious interpretative doubts as to whether a given type of judicial decision falls under the material scope of the procedure at issue could rise. The Italian example is again illustrative. The Italian law of transposition is basically a copy-paste of the FD. Yet, formal implementation does not necessarily mean appropriate implementation, because a literal interpretation of the relevant provisions would lead some recurring non-custodial sentences to be irrelevant for the purposes of the mechanism under consideration. What is more, the lack of common EU rules harmonising national probation decisions and alternative sanctions unveils an extremely diversified legal panorama. This legal fragmentation entails that some (even important) domestic measures and sanctions might not have comparable rules in another Member State and could then be hardly adapted (Art. 9) and, in the end, recognised. For instance, the freshly amended Arts 83-90 of the Romanian criminal code provide for a form of postponement of the enforcement of a custodial sentence conditioned on compliance with obligations or instructions. This new particular form of suspension of the sentence – which reflects the example of other national legal orders and which is expected to be frequently used by national courts – has no comparable judicial decisions in Italy or Spain, thereby leaving no room for its recognition and enforcement in these Member States.

The Council is now assessing the advances and shortcomings of this instrument, within the framework of the ninth round of evaluation of the application of some judicial cooperation tools. This institutional forum could represent an opportunity to address the current hurdles. In the same way, the first forthcoming preliminary ruling concerning the interpretation of the FD will contribute to cast light on some debated aspects concerning the scope of application of this instrument.

In general this unsatisfactory state of affairs could be improved by fostering judicial and professional training. It would also be useful to spread and share information concerning the identification of the judicial authorities responsible for this procedure at the national level and the main features of the probation measures and alternative sanctions available in domestic legal orders.

This blog post builds on the research developed in the Framework of the project Trust and Action, co-funded by the European Union Justice Programme 2014-2020 – The content of this post represents the views of the members of the research consortium only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Author: Stefano Montaldo

Stefano Montaldo is Associate Professor of EU Law at the University of Turin.

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