Alternatives to detention
Social and medical rehabilitation schemes
At the pre-trial stage, only 10 EU Member States159 provide for access to medical rehabilitation schemes, such
as: admission to psychiatric treatment facilities, outpatient treatment for mental health or addiction, or
treatment for addiction to alcohol or narcotics. Merely
four Member States160 have included in their pre-trial
criminal justice system social rehabilitation schemes,
such as: youth rehabilitation programmes, social integration programmes, community return programmes,
citizenship training courses, road traffic training, programmes preventing violent behaviour and participation in cultural programmes. This unavailability of social
rehabilitation schemes at the pre-trial phase might suggest a difficulty in transferring such measures between
Member States or incompatibility between the measures offered across Member States. If an executing state
does not provide for the same rehabilitative measures
as the issuing state, it must ensure that the accused is
offered a new measure that is as close as possible to
the original and that the accused is no worse off due
to the transfer.161
Financial surety and other alternatives to
pre-trial detention
Financial surety is an alternative to pre-trial detention
in 16 Member States,162 while a ban on driving may be
ordered in France, Poland, Romania, Slovakia and Spain.
A ban on carrying alcoholic beverages may be issued
in both the Czech Republic and Romania, while in both
France and Romania, a ban on writing cheques during
one’s pre-trial stage can be imposed.
4.2. Alternatives to post-trial
detention
“[T]he principle according to which prison shall
be used as a last resort, [requires] a variety of individually tailored sanctions and measures [that]
shall be applied where possible in order to keep
offenders in the community and to improve their
crime-free life prospects.”
Council of Europe, Committee of Ministers, Guidelines for prison
and probation services regarding radicalisation and violent extre
mism, 2 March 2016.
other than a custodial sentence, involving deprivation of
liberty or a financial penalty, imposing an obligation or
instruction.” 163 Article 2 (7) defines probation measures
as “obligations and instructions imposed by a competent authority on a natural person, in accordance with
the national law of the issuing State, in connection with
a suspended sentence, a conditional sentence, or a conditional release.” 164
Other related terms are to be understood as follows:
• conditional release: “the early release of sentenced prisoners under individualised post-release
conditions”165
• suspended sentence: a custodial sentence imposed
by a court, which will not be executed, depending
on compliance with imposed probation measures166
• conditional sentence: a judgment of guilt has been
made against a person, but the imposition of a sentence is deferred on the condition that the convicted
person complies with probation measures.167
FRA’s research indicates that conditional release from
a custodial sentence is an option in all EU Member
States. There are variations between the Member
States on the eligibility for conditional release. Some
allow this only for sentences of a certain length, or
exclude some crimes from eligibility. There is also a difference in how conditional release is offered; some
states have an authority charged with making probation
decisions, while in others, the courts have the power
to release a prisoner before the end of the sentence.
Data show that 25 of the 28 EU Member States offer
suspended sentences. Conditional sentencing appears
to be a less available alternative: 16 out of 28 offer conditional sentences (Belgium, Cyprus, the Czech Republic, Germany, Estonia, Finland, France, Croatia, Hungary,
Ireland, Malta, Poland, Romania, Sweden, Slovenia, and
the United Kingdom).
The Framework Decision on probation and alternative
sanctions lists, in Article 4 (1), probation measures and
alternative sanctions to which it applies, but it is not
compulsory for Member States to make all of these
measures available. The listed measures are:
The Framework Decision on probation and alternative
sanctions defines alternative sanctions as “a sanction,
159 Austria, Belgium, Denmark, Estonia, Finland, France,
Luxembourg, the Netherlands, Romania and Slovenia.
160 Luxembourg, Latvia, the Netherlands and Poland.
161 Council Framework Decision 2009/829/JHA, Art. 13 (2).
162 Austria, Belgium, Bulgaria, Cyprus, France, Germany,
Greece, Latvia, Lithuania, Luxembourg, Malta, the
Netherlands, Poland, Slovakia, Slovenia and Spain.
163 Council Framework Decision 2008/947/JHA, Art. 2 (4).
164 Ibid., Art. 2 (7).
165 Council of Europe, Committee of Ministers (2003),
Recommendation Rec (2003)22 of the Committee of
Ministers to Member States on conditional release (parole),
24 September 2003.
166 Council Framework Decision 2008/947/JHA, Art. 2 (2).
167 Ibid., Art. 2 (3).
67
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