becomes optional even when more than two years of the sentence remain to
be served196.
The latter approach, apart from the fact that it is not in accordance with the provisions of
article D.75 of the Code of Criminal Procedure, can prove problematic in case of refusal of the
prisoner’s application for reduced sentencing; however, it offers a certain flexibility to enable
maintenance in remand prisons, in view of the specific situation of certain persons.
Conversely, the situation of persons subject to expeditious transfers, has
come to the Contrôleur Général’s attention, imposed in order to prevent them
from taking advantage of the right to stay in remand prisons, for reasons of
prison management.
Cases were referred to the Contrôleur Général, from the first months of application of the
Prisons Act, concerning the difficulties of implementation of article 88. In the first place, the
opinion of the judge responsible for the execution of sentences mentioned in the orientation file
proved to have lapsed due to the long period between the putting together of the file and the
execution of the assignment decision. Moreover, prisoners did not, in fact, have the possibility of
invoking the provisions of the law, being in general informed of their effective transfer at the last
minute. In order to offset this difficulty, the prisons administration Department asked registries
to systematically verify the existence of hearings scheduled before the sentence board for
prisoners to be transferred197.
The inspectors ascertained that, in remand prisons of the Centre of France, the week
before execution of transfers, the services of the DISP send an email to the registry of the
remand prison in order to find out whether any factor currently stands in the way of the person’s
departure (planned temporary release, simplified reduced sentencing procedure or electronic
tagging for the end of the sentence in course, entering of the case in the sentence board register
etc.). In case of the filing of an application for reduced sentencing, the transfer is suspended.
In one institution in the South of France, the registry keeps a file of the follow-up of
reduced sentencing applications, which it consults before each transfer. However, this procedure
is not sufficient insofar as persons may make applications for reduced sentencing directly to the
judge responsible for the execution of sentences (JAP), without the registry being informed of
their application.
Following a case taken up by the Contrôleur Général, the head of an institution indicated that
an agreement had been established with the judges responsible for the execution of
sentences that, henceforth, the court registrar would inform the institution of applications
made directly to the court. This procedure should be brought into general use.
In spite of the putting in place of these procedures, the Contrôleur Général observes that persons
eligible for reduced sentencing continued to be transferred to other institutions.
8.3.3 The Difficulties of Implementation of the Right of Assignment
More than three years after the coming into force of the Prisons Act, it appears that, due
to their occupancy rates, several penal institutions for convicted prisoners are still unable to
implement the prescriptions of article 88.
196
It should be noted that the circular provides for the possibility of exemption from compulsory orientation if "the
seriousness of the formalities in course for the construction of an integration and rehabilitation project [make it
possible] to envisage a reduced sentencing procedure in the short term".
197
Note issued by the DAP at 8th June 2011.
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