Alternatives to detention
An analysis of the availability and application of alternatives to detention in the EU Member States reveals
that community service is the most commonly available alternative sanction. All but five (Austria, Cyprus,
Italy, Slovenia and Spain) of the 28 EU Member States
use community service either as an alternative to custodial punishment or as part of the probation measures
placed on a sentenced person.
Financial sanctions are excluded from the definition of
‘alternative sanctions’ in the Framework Decision on
probation and alternative sanctions.168 However, FRA’s
findings show that 16 of the 28 Member States use
financial sanctions in different ways, such as for redistribution in the community or in the form of damages
and expenses paid to victims of crime.169 In some EU
Member States, prison sentences can be converted into
monetary fines, or where a convicted person cannot
afford it, into equivalent hours of ‘unpaid’ work in the
community. For example, this is the case in Greece.170
In France, day-fines can be imposed. This means a daily
contribution for a certain number of days, with a failure
to pay resulting in the sentence being transformed into
days of imprisonment.171
Many EU Member States include measures that are
focused on victims. These include obligations to refrain
from contacting victims or their family, payments of
damages to victims, payments of medical costs, formal
apologies to victims, and reconciliation measures. Ten
Member States offer some form of victim-focused
measure (Germany, Denmark, Ireland, Latvia, Luxembourg, Malta, Poland, Portugal, Romania and Spain).
Nineteen Member States have some form of rehabilitative sanctions that include social rehabilitation and
integration measures, education and training, and
therapeutic programmes for mental health and addiction. For example, in France, convicted persons may be
obliged to attend citizenship training courses.172
168 Council Framework Decision 2008/947/JHA, Art. 2 (4) and
1 (3) (b).
169 FRA (2012b).
170 Greece, Criminal Code (Ποινικός Κώδικας), 31 May
1985, Art. 82 as modified by Art. 1 of Law 4093/2012
‘Approval of the Medium Term Fiscal Strategy for 20132016 - Urgent Measures on Application of Law 4046/2012
and the Medium Term Fiscal Strategy for 2013-2016’
(Έγκριση Μεσοπρόθεσμου Πλαισίου Δημοσιονομικής
Στρατηγικής 2013−2016 − Επείγοντα Μέτρα
Εφαρμογής του ν. 4046/2012 και του Μεσοπρόθεσμου
Πλαισίου Δημοσιονομικής Στρατηγικής 2013−2016),
12 November 2012.
171 France, Law 2014-896 on the individualisation of penalties
and strengthening of the criminal sanctions’ effectiveness
(Loi n° 2014-896 relative à l’individualisation des
peines et renforçant l’efficacité des sanctions pénales),
15 August 2014; France, Criminal Code (Code pénal),
Art. 131-4-1.
172 Ibid.
Restrictions of movement as an alternative sanction can
come in many forms. These include house arrest with
electronic monitoring; prohibitions on entering certain
locations; limitations on leaving the country; or deportation orders. House arrest with electronic monitoring
is commonly used among EU Member States. The states
that allow electronic monitoring include: Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia,
Finland, France, Ireland, Italy, Latvia, Poland, Portugal
and Spain. In Cyprus, this sanction is discretionary for
prison authorities; decisions to allow it are made by
a special committee consisting of various specialists
within the prison staff.173 Belgium has a system of home
detention with voice recognition. Vocal recognition is
a simplified version of electronic monitoring: a sentenced person may be called at any time and their presence verified through vocal recognition via a secured
phone line.174
Pre-trial detention in the EU –
a ‘measure of last resort’?
Fair Trials International, an advocacy organisation,
in May 2015 published results from EU-funded research into the application of pre-trial detention in
EU Member States. The research showed a strong
preference for detention rather than alternatives
in practice. It also revealed worrying practises, including judges using pre-trial detention for punitive purposes. However, the results also highlighted promising practices that avoid the persistent
practice of using detention as default rather than
as an exception.
Source: Fair Trials (2016), Policy Report: Pre-Trial Detention in
the EU
Conclusion and FRA Opinion
As noted, two of the three Framework Decisions aim to
encourage alternatives to detention. This is also emphasised by the UN Standard Minimum Rules for Non-Custodial Measures (the so-called Tokyo Rules, adopted
in 1990), and by the UN Standard Minimum Rules for
the Treatment of Prisoners (the so-called Nelson Mandela Rules, the revised version of which was adopted in
December 2015). States should make available alternative measures for rehabilitating, monitoring and punishing suspects, accused, and sentenced persons that
can equally or more effectively achieve criminal justice
173 Cyprus, Law on prisons of 1996 (Ο Περί Φυλακών Νόμοςτου
1996) N. 62(I)/1996, Art. 21A.
174 Belgium, Ministerial Circular n°1771 setting up the release
after the execution of part of the imposed sentence (La
circulaire ministérielle 1771 prévoit la mise en liberté après
l’écoulement d’une partie prescrite de la peine), 17 January
2005; Belgium, Ministry of Justice (2011).
69
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