Strasbourg, 24 November 2006
ASSESSMENT REPORTS
by
the Council of Europe Experts
Prof. Jacqueline TOMBS
University of Stirling
Scotland
Mr Raymond SWENNENHUIS
Dutch Probation Service
Netherlands
Mrs Luisa GANDINI
Regional Probation Office
Italy
on the
Systems of Alternative Sanctions and Probation in Serbia
Assessment visit 11– 12 October 2006, Belgrade
Document elaborated by the Directorate General I – Legal Affairs
In the framework of the CIDA Project “Assistance for the Reform of the
Correctional System in Serbia”
Comments from the experts do not necessarily reflect the views of their Authorities nor
those of the Council of Europe.
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Background
The reports are based on an assessment visit on 11-12 October to investigate the
Serbian System of Alternative Sanctions and Probation. The visit involved a series of
meetings with representatives from the Ministry of Justice Prison Administration, the
Office of the Prosecutor General, the Ministry of Labour, Employment and Social
Policy, the Judicial Training Centre, Fund for an Open Society and UNICEF (hereafter
‘representatives’). Relevant Serbian texts, notably the Serbian Penal Reform Strategy,
the Law on the Enforcement of Penal Sanctions, the report on Alternative Penal
Sanctions prepared by Ms Mrvic Petrovic, Ms Novakovic and Ms Obradovic, and the
Serbian Strategy 2006-2010 for Alternative Sanctions, provide the context within which
the three Council of Europe experts have assessed the information gained during the
visit. Their reports also take account of Council of Europe standards, especially the
revised European Prison Rules: Recommendation (2006) 2 (hereafter ‘EPR’),
Recommendation (1992) 16 on community sanctions and measures (hereafter R (1992)
16), Recommendation (1997) 12 on staff concerned with the implementation of
sanctions and measures (hereafter R (1997) 12), and Recommendation (2000) 22 on
improving the implementation of the European rules on community sanctions and
measures (hereafter R (2000) 22). In addition, the assessments draw on the principles
set out in the international instruments (European Convention of Human Rights,
Council of Europe Recommendation (1999) 22 concerning prison overcrowding and
prison population inflation (hereafter R (1999) 22), United Nations Standard Minimum
Rules for Non-custodial Measures (The Tokyo Rules) and the practice in other
European countries.
Alternative sanctions can take a variety of forms. They may be used before
proceeding to trial, at the trial and sentencing stage or post sentence. Alternatives
provide community sentences that hold offenders accountable for their actions and can
include fines, probation and a wide range of pre-charge, pre-plea and post plea
alternatives to custody. At present in Serbia the focus is on the introduction of new
types of alternative sanctions – unpaid work in the community (community service) and
probation – and on mediation, reconciliation and reparation to the victim, and
conditional release.
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Report from Professor Jacqueline Tombs
The Serbian System of Alternative Sanctions and Probation:
Assessment Visit 11-12 October 2006
The focus of my report is on key issues surrounding the implementation and
evaluation of alternative sanctions. Two further reports, by Ms Luisa Gandini and Dr
Raymond Swennenhuis, concentrate on the legal framework, the organisation of a
commissioner service responsible for alternative sanctions and probation (hereafter ‘the
service’), including staff recruitment and training, and strategic planning. My report
emphasises the importance of appreciating that the potential success of alternative
sanctions and measures depends on how well they are implemented from the outset.
This means that the objectives behind the introduction of alternatives must be clearly
articulated and that their implementation must be closely monitored, reviewed,
evaluated and revised in light of how well key objectives are being met.
General
Overall, from the discussions with the representatives noted above, I was
impressed by the goodwill and understanding of what was required in developing an
effective system of alternative sanctions. Representatives noted good co-operation
between Ministries and some of the key agencies to be involved in the implementation
and enforcement processes. In particular, the positive co-operation established in
relation to the implementation of the Juvenile Justice Law provides a good foundation
upon which co-operation re the implementation of alternative sanctions can be built. In
the case of alternative sanctions it is clear, for example, that the role of the Prison
Administration is crucial in developing strong links with social services. Across the
range of agencies covered in the assessment visit, however, I did not have a sense that
many positive steps had been taken to establish co-operative working with the range of
agencies involved nor was there evidence of a fully worked out, integrated and coordinated plan to implement the use of alternative sanctions and develop the service
responsible for their administration and enforcement. It was also clear that, whilst
representatives spoke of the need to set up a strategy for introduction, little had been
accomplished in developing the necessary infrastructure. Several representatives
pointed to the absence of by-laws to implement the service itself, the requirements to be
met, and the procedures to be used in enforcing alternative sanctions. Thus while
representatives talked very constructively about organising joint panel discussions,
round-tables and other training events for all those involved in the administration and
enforcement of alternatives, these events were still to begin. In short, though the process
of establishing a clear and shared vision of how to effectively introduce alternative
sanctions had begun it was in the very early stages and a definite and detailed plan had
yet to emerge.
Using alternatives to imprisonment
In part this absence of a clearly focused plan for implementation can be traced to
the Law on Enforcement of Penal Sanctions which does not regulate in detail the
processes involved in the enforcement of alternative sanctions nor does it provide for
specific measures aimed at the reduction in the prison population (for example, early
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release from prison backed by electronic surveillance and home curfews). If, however,
the objectives of introducing alternative sanctions are to be achieved, it is imperative
that these are clearly specified and understood by all those involved in implementation.
For example, in relation to the objective of substituting alternatives for short term
prison sentences, experience from other countries shows that alternative sanctions do
not, in and of themselves, necessarily reduce the use of imprisonment. The last twenty
years have seen a massive increase in the use of imprisonment across the world and
often in jurisdictions that have a wide range of non-custodial alternatives at their
disposal. Increases in the use of imprisonment are not confined to any particular type of
jurisdiction or political system; they occur in all parts of the world. The use of prison
varies greatly from country to country, with some having been much more successful
than others in achieving reductions through the implementation of alternatives and
legislative restrictions. In some countries imprisonment is used only for those who have
committed very serious crimes. Other countries choose to use imprisonment for large
number of offenders who have committed minor offences including men and women
who are mentally ill and those who are substance abusers.
Where imprisonment has been used for minor offences and the numbers
imprisoned have been rising, prison administrations have been unable to allocate the
additional resources - physical and human - necessary to cope and the result is an
epidemic of overcrowding. States then find that they are unable to honour the duty of
care for those that have been detained and the ability of prison administrations to
guarantee basic human rights for prisoners, to work towards the aim of rehabilitating
prisoners, preparing them for their reintegration into society, is undermined. Where less
serious offenders are given alternative sanctions, the resources of the prison
administration can be released to work more effectively in the treatment of those for
whom prison is the only option. This is consistent with R (1999) 22 which recommends
that the deprivation of liberty should be regarded as a sanction of last resort to be used
only when the seriousness of the offences would make any other sanction or measure
clearly inadequate.
Consideration also needs to be given to how alternative sanctions are used. Across
many jurisdictions there are a broad range of sanctions used as a substitute for
imprisonment. Countries vary in how widely and in what way these sanctions are used.
Sometimes they do in fact appear to act as substitutes for prison sentences. Often,
however, alternative sanctions are used as an alternative to fines. Whilst this practice is
not, in principle, undesirable, it does have unintended consequences for the use of
imprisonment. Where this occurs, offenders who re-offend are more likely to go ‘up
tariff’ and get a prison sentence more quickly thus pushing up prison populations.
Similarly, there is a need to be very clear about how best to deal with breaches of
community-based sanctions. Here the international evidence shows that where a
custodial sentence is imposed when there are breaches of community-based sanctions,
‘net-widening’ can occur and contribute to pushing up the prison population.
This does not happen when a range of sanctions other than imprisonment can be
imposed on offenders who fail to comply with a condition of their community sanction.
In such cases, offenders will only be returned to prison when the nature of the breach
itself justifies a prison sentence and not when a relatively minor transgression has
occurred. This practice is consistent with R (1992) 16 Rules 10 and 86, and with the law
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in Serbia which now permits the substitution of a fine for failure to comply with
conditions of alternative sanctions. In Finland the practice is well established that,
where a breach of a community sentence occurs, punishment is by a fine or another
community-based sentence. Imprisonment for breaching a community based sanction is
pro-actively avoided. Pro-actively avoiding imprisonment in this way is recommended
for the Serbian system as this would ensure that offenders are not imprisoned unless the
original offence warranted a prison sentence.
Introducing alternative sanctions
In some jurisdictions the administration and enforcement of alternative sanctions
is the responsibility of a distinctive probation service. In others, as is presently the case
in Serbia (though the longer term aim is to have a separate independent service), the
prison administration has responsibility for prison and for the administration of
alternative sanctions. In such circumstances, where senior prison administrators have
responsibility for the implementation of prison and alternative sanctions, they can use
their knowledge of the conditions of imprisonment to inform the work and development
of the non-prison sector. Senior administrators have a particular role to play in ensuring
that prison is not over-used. For example, they can draw the attention of the public and
parliament to the consequences of overcrowding in prisons and of a lack of resources to
sustain a high number of prisoners. It is therefore a key responsibility of prison
administrations to make legislators, the judiciary and the public aware that prison is a
place that should be used as a place or last resort, in cases where there is no other
reasonable disposal. In all other cases it should be possible to make use of alternatives
to custody.
Several representatives expressed concern about the lack of readiness on the part
of the public for the introduction of alternative sanctions. It is therefore necessary to
develop a public relations strategy that will provide accurate information to the public
about the nature and effectiveness of alternative sanctions. This is consistent with R
(1992) 16, Rule 44, which recommends that, “Appropriate information about the nature
and content of community sanctions and measures as well as various ways in which
they are implemented shall be disseminated so that the general public…can understand
them and perceive them as adequate and credible reactions to criminal behaviour”, and
with R (2000) 22, para. 18, which recommends that, “The introduction of new
community sanctions and measures into legislation and practice should be accompanied
by vigorous public relations campaigns with a view to winning public support”.
International evidence from Finland underlines this approach and suggests that the
political consensus that prisoner rates were a problem which needed to be addressed in
that country was crucial in the adoption and public acceptance of the law reforms aimed
at reducing the use of custody.
The prison administration is well placed to make a major contribution to the
establishment of alternatives to prison in jurisdictions where there is not yet a developed
system of alternatives. Prison authorities can bring knowledge about the effectiveness of
the existing system of punishments, information on the wide variety of convicted people
that the prison system deals with, an assessment of the likelihood of convicted people
complying with the requirements of non-prison punishments and expertise relevant to
the supervision of offenders in the community. It is therefore recommended that the
prison administration in Serbia develop and implement a public relations strategy in line
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with R (2000) 22, para. 15, which states that, “Political and administrative leaders and
the general public should receive recurring information on the economic and social
benefits accruing from a reduced recourse to imprisonment and an increased recourse to
community sanctions and measures. There should be a declared public relations policy
concerning local media. The information should emphasise that community sanctions
and measures can involve the effective supervision and control of offenders”.
Alternative sanctions: some lessons
International experience and evidence demonstrates that alternative sanctions are
more likely than prison sentences to promote offender rehabilitation and enhance
community safety. In addition, alternative sanctions are at least as effective, often more
so, in reducing offending behaviour as short term prison sentences and have a greater
cost-effectiveness. The lessons from evaluations of the international experience with
alternative sanctions which are of direct relevance to the implementation process in
Serbia are commented on briefly in what follows.
Judicial involvement
First, the judiciary should be closely involved in the design and implementation of
direct alternatives to imprisonment. This is recommended in R (2000) 22, para. 7 which
recommends that, “Judicial authorities should be involved in the process of devising and
revising policies on the use of community sanctions and measures, and should be
informed about their results, with a view to ensuring widespread understanding in the
judicial community of their nature.” In addition, the international experience shows that
there is a need for an ‘attitudinal readiness’ on the part of the judiciary before
implementation and for subsequent continuing professional development training. In
this context the commitment in Serbia to judicial training, and to the training of
prosecutors who also have an important role to play, is most promising even though this
training has not yet resulted in the use of alternative sanctions. Indeed, representatives
expressed differing views about the extent of ‘judicial readiness’ and ‘prosecutor
readiness’ for the introduction of alternative sanctions. International experience suggests
that the nature of the training provided is crucial; the content of judicial and prosecutor
training and its purpose should be aligned closely with the objectives of introducing
alternative sanctions, how they will be enforced and how their effectiveness will be
assessed. Sentencers in any jurisdiction are unlikely to use alternatives if the sanctions
are not seen to give clear messages to the convicted person and to the public. A greater
transparency to the convicted and to the public that an alternative to custody is a direct
alternative to going to prison has been found to contribute to wider and appropriate use
of community disposals in various countries. In some countries, however, alternative
sanctions have changed from being diversionary ‘alternatives’ from imprisonment to
being principal modes of punishment in their own right. One of the consequences of this
is that community service orders, for example, have only contributed to a very small
decrease in short-term prison sentences in these countries. This must be avoided if
alternative sanctions are to work properly as ‘alternatives’.
Range of alternatives
There should also be an adequate range of alternatives. The Drug Treatment and
Testing Order (DTTO) used as a condition of probation in Scotland and England &
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Wales, for example, is a direct alternative to imprisonment that has proven to be
effective in reducing offending for a key group often not suited, due to poor health
and/or chaotic lifestyles, to community service. The scope of alternative sanctions in
Serbia could be expanded to include treatment orders as conditions of probation for
those who – due to their alcohol or drug abuse – do not fulfill the conditions of
community service. In Sweden, special forms of probation include ‘contract treatment’
where treatment for drug or alcohol misuse is decided by the court as an alternative to
prison. A large number of distinctive types of sentence are not, however, absolutely
necessary. With a strong ‘service’ responsible for the administration and enforcement of
alternative sanctions it is possible to have an effective system simply through the use of
fines, suspended sentences (with or without supervision), community service and victim
offender mediation, reconciliation and/or reparation.
Fines
In many jurisdictions, fine default contributes to pushing up prison populations.
Some countries have made provisions for community service to be used as an option for
fine default. While there is some positive evidence from this policy in the countries
where is has been adopted, more remains to be done to provide greater scope for
offenders who default on payment of their fines to convert their fines into work,
education and development orders to avoid the use of imprisonment.
Community service
In several jurisdictions committed to reducing their prison populations, efforts are
being made to identify large-scale community work projects to increase the numbers of
offenders engaged in work that benefits organisations and communities. The aim here is
to increase the opportunities for skills acquisition to ensure that offenders can enhance
their employment prospects and that offenders with special needs can be accommodated
where possible. Greater attention is also being paid to recruitment and selection
procedures and to the support provided for agencies that provide community work tasks.
Representatives commented on the unemployment rate in Serbia and the problems they
anticipated in finding community service placements for offenders. Other countries
have found imaginative ways to provide useful employment in such circumstances, for
example, in humanitarian agencies, so lack of employment need not be an
insurmountable problem. As a ‘true’ alternative to imprisonment, there is substantial
evidence internationally that community service has worked well. In relation to the
nature of community work, research shows that offenders whose experiences have been
rewarding are less frequently reconvicted.
Mediation, reconciliation and reparation
The law in Serbia is consistent with R (2000) 22, para. 1 in relation to the
introduction of the provisions in Article 59 (1) and (2) of the Criminal Code 2006 which
provides for settlement of the offender and victim. Building on the mediation services
already established in relation to juveniles, there is great scope for mediation,
reconciliation and reparation to play an important part in the implementation of
alternative sanctions in Serbia. Mediation has been a cornerstone of the rational penal
policy approach in Finland where it is based on volunteer work. In Finland, victimoffender reconciliation programmes can influence the decision of the prosecutor to
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waive further measures, or the decision of the court to waive punishment. Participation
in mediation is voluntary and can be initiated by any one of the possible parties and can
start between the commission of an offence and the execution of a sentence. The police
and the prosecutor account for around 75% of all referrals annually – typical offences
are assault, theft and damage to property. There is potential for Serbia to develop
similar practices with the result of diverting minor offenders from sentences of
imprisonment, improving the management of prisoners and enhancing the rehabilitation
of offenders.
Conditional release
Post sentence alternative sanctions – conditional release – are of crucial
importance if the social rehabilitation of ex-prisoners is to be achieved. The use of
community-based sanctions to replace the latter part of a sentence of imprisonment will
require not simply the preparation of public acceptance but also the active involvement
of community agencies. It will also require the establishment of effective liaison
between them and the prison authorities. The service within the Prison Administration
in Serbia will be responsible for the supervision of conditionally released individuals
and the international experience here shows that this can often be best accomplished
through electronic monitoring and community service. Consideration should be given to
the scope for using such methods.
Phased implementation of alternative sanctions
Several representatives spoke about the intention to introduce a pilot project in
Belgrade. This is a constructive way forward and is consistent with R (2000) 22, para. 4,
which states that, “Provision should be made for introducing new community sanctions
and measures on a trial basis.” This kind of approach will allow for a phased
implementation of alternative sanctions throughout Serbia in manner that permits
revision as lessons are learned.
Consistent with R (2000) 22, para.5, it is important that the implementation of the
use and enforcement of alternative sanctions is phased and accomplished in a way that
enables the provision of high quality data and information necessary for effective
monitoring and evaluation and R (2000) 22, para. 28 recommends that, “Statistics
should be developed that routinely describe the extent of use and the outcomes of
community sanctions and measures.” It is also important to consider adequately the type
of offender for whom different kinds of alternative sanctions will be appropriate, how
they will be assessed, by what means and by whom and how effectiveness will be
assessed. This is consistent with R (2000) 22, para. 19, which recommends that,
“Criteria of effectiveness should be laid down so as to make it possible to assess from
various perspectives the costs and benefits associated with the programmes and
interventions…”
While there are a number of ways to interpret effectiveness, it is possible to
distinguish three different types of circumstances under which the term effectiveness
might best be understood. An alternative sanction can be considered to be effective if it
results in no further offending by the offender within a specified time period (simple
non- reoffending) or if the offender completes it with no breach of the formal
requirements of the order (successful completion order). An alternative sanction is
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partially effective if certain intermediate treatment goals are achieved; for example, if
an offender whose offending has been closely linked to heavy drinking significantly
reduces his or her alcohol consumption after attending a prescribed programme for
heavy drinkers (intermediate treatment goals).
Clear commitment needs to be made to research to monitor the early
implementation of alternative sanctions so that they can be better developed. Evaluation
is necessary to identify good practice and which initiatives seem to work best with
which kinds of offenders; a commitment to ‘what works’. R (2000) 22, para. 24
recommends that, “Adequate investment should be made in research to monitor the
delivery and evaluate the outcomes of programmes and interventions used in the
implementation of community sanctions and measures.”
Pilot project
Working Group
A Working Group, composed of representatives from the Prison Administration,
the service for the administration and enforcement of alternative sanctions, the Ministry
of Labour, the judiciary, the prosecuting authority, social welfare centres, mediation
services and any other relevant agency concerned with the implementation of alternative
sanctions, should draw up the detailed parameters of the pilot project.
Objectives
The Working Group should, drawing on the relevant legislation and strategy
documents as well as the Council of Europe recommendations noted a page 1 of this
report, specify the objectives of the pilot project.
Procedures
On the assumption that there will be ten commissioners working on the
administration and supervision of alternative sanctions, decisions about allocation of
staff to various tasks and duties require to be identified in relation to the objectives.
Operation
Here it is necessary to articulate exactly how the options to use alternative
sanctions will be operationalised in the pilot project court in Belgrade. This will depend
on the precise nature of the duties, responsibilities and accountabilities set out for the
commissioner service.
Personnel
It will be necessary to identify all personnel to be involved in the pilot project and
to indicate what the expectations are of the nature of their involvement. The various
personnel will have distinctive contributions to make but it is important that areas where
joint working is necessary be identified.
Target Groups
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The manner in which offenders will be identified as suitable for the different types
of alternative sanctions should be specified. Considerations here include who will be
responsible for making assessments, how these assessments will be made, and how the
results of assessments will be communicated to the judiciary.
Monitoring and Evaluation
The pilot project will require to be monitored to provide ongoing feed-back to the
Working Group about the process of implementation, identifying where the project is
proceeding well and where problems are emerging. In light of these assessments, which
should be provided at regular intervals, the Working Group will be able to make
adjustments to the project to enhance its potential to meet its objectives. Based on an
agreed timescale, the project should be evaluated to provide an assessment of the extent
to which the objectives have been met. Given that full implementation will be over the
years 2006-10, some interim evaluation would be appropriate. In addition to project
objectives related to staffing and the service and consistent with R (1992) 16, Rule 90,
evaluation of the alternative sanctions and measures should include objective
assessment of the extent to which their use :
- conforms to the expectations of law makers, judicial authorities, implementing
authorities and the community concerning the goals of alternative sanctions and
measures;
- contributes to a reduction in the rates of imprisonment;
- enables the offence-related needs of the offender to be met;
- is cost-effective;
- contributes to the reduction of crime in the community.
Evaluation should also permit a detailed assessment of the resources necessary and
feasible timescales for rolling out alternative sanctions across the whole country.
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Report from Raymond Swennenhuis
The Serbian System of Alternative Sanctions and Probation:
Assessment Visit 11-12 October 2006
The focus of the three assessment reports of the mission team is generally on alternative
sanctions and probation. My report will focus in particular on the organization of a
commissioner service responsible for alternative sanctions and probation (hereafter ‘the
Service’) and the development of products and services. It will also touch upon the
issues of staff recruitment and training. Hereby I have tried to make as much as possible
a link with the anticipated work of the Commissioner’s Service as stipulated in the
present legal framework: community work and supervision of offenders with a
suspended sentence. The reports by Professor Jacqueline Tombs and Ms Luisa Gandini
(my colleagues during the Assessment Visit) will focus on key issues surrounding the
implementation and evaluation of alternative sanctions and the legal framework.
My report emphasizes firstly the necessity for the Service to adopt a clear mission
statement. This is closely linked to the remarks made by Professor Tombs regarding the
importance of a clear articulation of the objectives behind the introduction of alternative
sanctions. Secondly my report emphasizes that from the mission statement other
important key elements of the Service can and should be derived and developed. This
includes a suitable organizational framework, development of products and services, a
balanced body of employees and forms of training and education. Several of these
issues are touched in this report, indicating areas where attention can and should be
paid. At the end of the report, I will sum up the main conclusions and recommendations.
General
In general a compliment should be made to the Serbian authorities for the speed with
which they have made the necessary adjustments in the legislative framework. The
mission team also sensed a great deal of readiness and sense of urgency to tackle the
issues that are still ahead before alternative sanctions can effectively be used in the
criminal law system. There did not seem to be obstacles related to a good co-operation
between the various agencies and partners in the field. However, there has not been
much work done in establishing concrete working arrangements or an operational plan.
According to the representatives we spoke, this was largely because of the absence of a
more precise legal framework (e.g. by-laws). Moreover, due to the absence of the
operational infrastructure and the lack of commissioners, no action has been taken yet to
start concrete developments.
It was difficult to assess what in general the position and opinion of the public at large
towards alternative sanctions in general and community work in particular was. Also it
is difficult to assess the opinion and attitude of the potential ‘users’ of community work
sanctions (e.g. elderly homes, municipalities, and others). It will be instrumental to have
their cooperation, with the assistance of the local social welfare agencies.
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Based upon general experience in other countries it would be safe to say that it is wise
to invest in developing good relations with both the general public and the potential
partners. A strategy should be developed to inform them about the concept of
community work and to convince them to take a positive stand.
It was also encouraging to see interest and involvement from NGOs as well as from
academic circles. This is important for a stable basis when the implementation of
alternative sanctions gets off the ground.
It seems to be most important to finalise the necessary by-laws as soon as possible.
After the first group of commissioners has been appointed, it would be possible to start
one or more pilots to develop good practice in executing alternative sanctions. This
experimental development is a good practice to test operational plans and quickly adapt
them when necessary. In the report of Professor Tombs more will be said about the
possibilities of a pilot project.
Mission statement of the Commissioner Service
The Law of the Execution of Penal Sanctions (hereafter LEPS) provides for the
establishment of a “special organisational unit of Prison Administration” (art 181 LEPS)
that will be responsible for the execution of community service orders. By-laws still
have to be drafted regulating in more detail the organisation of the commissioner
service.
It should be recommended that attention is paid to formulating a clear mission statement
for the Service, either directly in the by-laws or in any strategic policy document
underlying the by-laws. Any mission statement should of course be in line with the
general strategic objectives of the Ministry the Service belongs to. Nevertheless, it is
important to engage in a process of developing a mission statement so that general
goals, strategic objectives and operational targets may be derived from that mission
statement.
Generally recognized important elements of mission statements of other European
probation services include: public protection, reducing re-offending, risk assessment,
effective execution of penalties and alternative (community-based) sanctions, assistance
to offenders aiming at reintegration and rehabilitation. An explicit policy statement
should also “include such matters as offenders' obligations and rights, the effective
delivery of interventions and programmes for the resettlement of offenders, the
legitimate interests of victims, organisational responsibility for community safety, and
collaboration with the staffs of prisons, relevant agencies and organisations, and
individuals drawn from the community”. (R (2000) 22, appendix 2, art. 11) Such a
mission statement should fit in the particular social-political context Serbia finds itself
in and suits the role of the Service amidst other partners in the judicial chain.
A clear mission statement can give guidance to a number of processes the Service will
be engaged in the near future. Firstly the choice of specific tasks, products and services
depends heavily on the strategic goals that are set. Furthermore its role and position
between other actors in the judicial chain depends on the mission statement and
strategic objectives. In this respect any mission statement should be “supplemented by
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service plans and practices devised with a view to raising the awareness of the various
organisations and individuals involved in the implementation of community sanctions
and measures concerning the importance of working towards common goals and sharing
a mutual understanding of working methods.” (R (2000) 22, appendix 2, art. 12)
Organisation
At present the Service is envisaged to be integral part of the Ministry of Justice and is
positioned in the Department for the Execution of Penal Sanctions. This is a logical and
practical choice as the Service will be responsible for the implementation of penal
sanctions, such as supervised suspended sentences and community sanctions. This
organisational model is used in a number of other European countries.
At the same time, there might be a development for other products and services to be
developed within the Service. This will depend on a number of factors such as the
mission statement and the desire to become more involved in other stages of the penal
procedure.
As for the application of alternative sanctions, various recommendation of the Council
of Europe point at the importance of an advisory function before community sanctions
or measures are imposed. In R (92) 16 rule 31, it is stated that “community sanctions or
measures shall only be imposed when it is known what conditions or obligations might
be appropriate and whether the offender is prepared to co-operate and comply with
them”. Furthermore, “any conditions to be observed by the offender subject to a
community sanction or measure shall be determined taking into account both his
individual needs of relevance for implementation, his possibilities and rights an well as
his social responsibilities”. (R (92) 16 rule 32) This means that the judicial authorities
need to receive proper advice before imposing such a sanction. And the “advice to the
court or public prosecutor concerning the preparation, imposition or implementation of
a community sanction or measure shall only be provided by or through professional
staff, or by an organisation that is laid down in law”. (R (92) 16 rule 56) The Serbian
Criminal Code as well refers to the necessity for the court to have sufficient information
about “the personality of the perpetrator and his readiness to perform the community
service”. (art. 52 Criminal Code) The same is applied to suspended sentence and the
attached obligations where the court has to consider the “personality of the offender”
and other social information (art. 72 and 74 Criminal Code).
This could mean that the Service will become more involved in other, earlier, stages in
the penal procedure, from the early start when advice is given to judicial authorities up
to the moment of implementation of the sanctions.
At first advisory functions might be connected only to the possibilities to impose
community sanctions, as mentioned above. Later on, these advisory functions may be
extended to other decisions by the judiciary or the prosecutor’s service, such as the
imposing, lifting or suspending pre-trial detention, or early release of prisoners. Thus
the service might become a partner with continuous tasks in the judicial chain:
diagnosis/assessment – advice – implementation of alternative sanctions – and possibly
aftercare.
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When making a more permanent choice where the Service will be placed, both in
organisational and physical terms, the products and services of the Service have to be
taken into account. At the moment, with the present range of activities planned for the
Service, the setting within the Ministry of Justice closely connected to the Prison
Administration is a logical choice. In the (near) future, when an extension of the tasks
and responsibilities of the Service are considered, this can have consequences for the
organisational setting. Internally, various tasks should be assessed with a view to their
mutual compatibility. Especially care must be taken that the professionalism and
objectivity of the products are not compromised. This can e.g. be the case when the
Service has tasks as a provider of information and advice regarding community
sanctions to judicial authorities on the one hand, and the other hand is responsible for
the implementation of those community sanctions. (See also the paragraph on the
products and services of the Service). Therefore is might be considered to take into
account a certain degree of flexibility in the organisational setting so that there are
possibilities to make adaptations when necessary and possible.
Possibilities for other organisational structures are e.g. a) as a public body, financed by
the state budget, but with a certain degree of independence regarding the
implementation of tasks; b) within the Ministry, but placing various tasks under the
responsibility of separate departments; c) as a private organisation financed by the state
under specific control and conditions; d) or a combination of the options above thus
taking into account the separation of functions if necessary. Other options are of course
also possible.
Another aspect to take into consideration when thinking about organisational setting is
the embedding into local structures. Local Service units that work in the regions will
have an important task in establishing working relations with various stakeholders.
Important partners in the implementation of alternative, community-based sanctions are:
the municipalities, local police, local branch of the prosecution service, youth care and
social welfare organisations; charity organisations, hospitals and care homes for the
elderly, etc. Any type of organisational setting should take into account a certain degree
of flexibility for the local Service units, thus making it able for local Service units to
fine-tune their specific day-to-day activities with their local partners.
As for the physical location of the local Service units, several choices can be made.
During the meetings it was mentioned that the local Service units, i.e. the units outside
of Belgrade, could possibly be placed at courts, prisons or centres for social welfare. For
financial reasons, it is not realistic to create new facilities. Making use of the existing
facilities in courts seems to be a logical choice, since connections with the judiciary and
the prosecutor’s office will probably be important in the daily operations of the local
Service units. On the other hand, a location in the offices of local prisons does not seem
to be illogical given the organisational link with the prison administration. Whatever
choice will be made, sufficient, effective and secure working space is elementary for the
well-functioning of the Service.
Tasks and responsibilities
The LEPS stipulates in broad lines the tasks the Service will have. Generally spoken,
based on the current legal situation the Service will have the task to monitor the
14
implementation of the penalties of community work, suspended sentence with
protective supervision. From a comparative point of view, a probation service like the
Commissioner’s Service could have a wide range of other additional tasks and
responsibilities. Some examples are:
- provide information to judicial authorities in order to assist them in sentencing
and other decisions (including risk assessment of re-offending)
- developing, implementing and monitoring community sanctions and measures
- provide practical and social help, care and aftercare to the offender during his
contact with the criminal law system
- implement interventions that aim to prevent recidivism (incl. individual or group
training programmes ultimately aiming at changing criminal behaviour)
- support (ex-)detainees and assist them during preparations for release
- control and supervise conditions applied to offenders
- involve community interests, including governmental and non-governmental
organisations
It is important to understand the importance of the link between the various tasks and
products. All products and services should fit into the general aims of the organisation,
but some elements are linked so organically that they should be considered even if they
are at this moment not explicitly laid down in legal texts.
Currently, it is foreseen that the Service will focus on the implementation and
monitoring of alternative sanctions. It is recommended that the Ministry considers
opening the possibilities for extra products and services that are crucial for the success
of these core tasks. In particular assessment of the risk of re-offending and the advisory
functions towards judicial authorities should be considered.
Providing the judicial authorities with high-quality information and assessments is
firstly important for correct and fair judicial proceedings. Advice on appropriate
sentencing is important and should take into account the personality of the offender and
the effect the sentence will have on him. In particular this is applicable to alternative
sentences. This is underlined in R (92) 16 rule 31: “community sanctions or measures
shall only be imposed when it is known what conditions or obligations might be
appropriate and whether the offender is prepared to co-operate and comply with them”,
and R (92) 16 rule 32: “any conditions to be observed by the offender subject to a
community sanction or measure shall be determined taking into account both his
individual needs of relevance for implementation, his possibilities and rights an well as
his social responsibilities”. Moreover, “advice to the court or public prosecutor
concerning the preparation, imposition or implementation of a community sanction or
measure shall only be provided by or through professional staff, or by an organisation
that is laid down in law”. (R (92) 16 rule 56) “The selection of a non-custodial measure
be based upon an assessment of established criteria in respect of both the nature and
gravity of the offence and the personality and background of the offender, the purposes
of sentencing and the rights of the victim”. (Tokyo rules art 3.2) “If the possibility of
social inquiry reports exists; the judicial authority may avail itself of a report prepared
by a competent, authorized official or agency. The report should contain social
information of the offender that is relevant to the person’s patterns of offending and
current offences. It should also contain information and recommendations that are
relevant to the sentencing procedure. The report shall be factual, objective and unbiased,
with any expression of opinion clearly identified”. (Tokyo rules art 7.1)
15
The mission team was informed about the trainings by the Judicial Training Centre on
the legal framework regarding alternative sanctions. We were impressed to hear that all
2300 judges have already participated in the training course. Judges now have relevant
information on the available alternative sanctions and the group of offenders that may
be eligible for these sanctions. This is important for at least two reasons. Firstly it is
good for the motivation of judges to apply the alternative sanctions. Secondly, it may
now be assumed that judges have more information on some of the objective criteria on
the basis of which offenders may receive a community sanction and for what type of
offender it would be useful.
It is recommended that in addition to this knowledge, judges and prosecutors may
receive more specific advice (high quality assessment and advice) on the suitability of a
particular individual to receive a community service. Next to the objective criteria, these
more subjective criteria are important to determine the potential risks and chances for an
individual offender to complete a community sanction.
Chances of a successful completion of an alternative sanction will have to be assessed
by professional body. It can be expected that the implementation of new alternative
sanctions, such as community service and suspended sentence under supervision will be
monitored critically by both professional legal field as well as the public at large. This is
also why it is important to establish from the outset a plan of implementation that
includes proper assessment of risks and potential success of alternatives to
imprisonment. In pilot projects (see the report of Professor Tombs) such procedures can
be tested and adjusted if necessary before being rolled out country-wide.
A similar role for the Service can be foreseen in the stages of early release of prisoners.
Here a similar advisory position can be taken based upon good assessment practice.
Any change or extension of tasks and responsibilities of the Service will have
consequences for its organisational structure. All tasks should be assessed regarding
their compatibility. Care must be taken that the professionalism and objectivity of the
products are not compromised. When the Service has advisory tasks towards the
judiciary regarding community sanctions as well as tasks in the implementation of those
sanctions, this might be the case. (See also the paragraph on the Organisation of the
Service).
Furthermore it is recommended that the Service invests in the design of its products and
services. Much can be mentioned in this regard, but for the sake of simplicity and
briefness, I will mention some brief elements that need to be considered. It is important
that attention is paid to defining the products and services. Not only in quantitative
terms but also in qualitative terms the products can be described thus contributing to a
transparent and verifiable Service. It makes it more easy and efficient to measure results
and adjust policies and practice if necessary. Of equal importance are qualitative criteria
for internal procedures. Qualitative criteria can give guidance when operational and
administrative procedures are being developed, and are crucial for a proper division of
tasks and responsibilities. Quantitative criteria and time norms can be developed as
well. This could develop into an important tool for management control in order to
increase efficiency and to have more control over the output of activities of the Service.
16
It might be assumed that the reduction of crime and recidivism and thus increasing
safety in society is one of the main goals for the Commissioner Service. Having proper
and up-to-date knowledge on the causes of crime and recidivism in general and
criminogenic or crime-producing risk factors in particular is therefore important. When
choosing and developing products and activities, the Service might want to strive for
methods that have a good record in this respect. It is wise to join developments of
products and tools that are scientifically justified and have proven its effectiveness. This
is important for the support basis in society and the preparedness of the general public
to accept alternative sanctions and probation as well as to accept the Service as a useful
and credible organ in the judicial chain.
Staff selection, recruitment en training
During the meetings we understood that a start has been made or will be made shortly
with the selection of a first group of 10 commissioners for the Belgrade region. The
educational level of the potential candidates in general seems to be high. Schooling is
often in the field of social sciences or laws. When proceeding with the recruitment and
selection of future commissioners care must be taken that there will be “no
discrimination” and that it should “take into consideration the specific polices on behalf
of particular categories and the diversity of the offenders to be supervised”. (R (92) 16
rule 37)
Moreover, “the staff responsible for implementation shall be sufficiently numerous to
carry out effectively the various duties incumbent upon them”. Furthermore “norms and
policies shall be developed to ensure that the quantity and quality of staff are in
conformity with the amount of work and the professional skills and experience required
for their work”. (R (92) 16 rule 38)
In addition to proper recruitment, attention is also necessary for adequate training of
staff so that they are enables to “have a realistic perception of their particular field of
activity, their practical duties and the ethical requirements of their work.” Furthermore
their “professional competence [should] be regularly reinforced and developed through
further training and performance reviews and appraisals.” (R (92) 16 rule 39)
The Service as a whole is going to be responsible for a set of different tasks. The
individual commissioner will be responsible for tasks that are new to him. It is therefore
important that initial and permanent training is taken seriously in order to increase the
chances of successful introduction of alternative sanctions.
It is assumed that commissioners will work with clients who have given their consent to
the fulfilment of a community sanction or measure. Nonetheless, the activities always
take place in a judicial framework. Non-fulfilment of community sanctions or measures
may have consequences for the client. Moreover, the consent of the client does not
mean however that clients will always be most cooperative. At least a part of the work
by the commissioners will therefore not only be done from the perspective social work
with voluntary clients who are cooperative. This requires special knowledge and skills.
It is recommended that in due course time and energy is devoted to developing a proper
working methodology for commissioners aiming at the specifics of working with
17
probation clients (i.e. for the purpose of this report: clients who are sentenced to a
community sanction or measure or a suspended sentence with supervision). This
specific working methodology can then be integrated in the initial and permanent
training programme for the commissioners.
Another aspect to consider is the possibility for commissioners to specialise in specific
tasks. Advantages could be that individual workers can focus on specific deepening in
knowledge and skills and thereby improving the quality output of their work. This
might become more important in the future, when Service will possibly expand its
activities with an advisory function for the judicial process.
Task specialisation may also play a role when the mutual compatibility of various tasks
of the Service is considered. This might become an issue when the Service has tasks in
both providing information and advice regarding community sanctions to judicial
authorities as well as being responsible for the implementation of those community
sanctions. In such a scenario, taking into consideration the professionalism and
objectivity of the Service, a choice might be made to separate those tasks within the
Service, thereby making a case for task specialisation of commissioners.
From our interviews during the mission, it seemed that many of the commissioners will
probably be selected from the prison administration. This is not illogical as the Service
is closely linked to the prison administration. Moreover, they work with the same target
group (the offenders). Nevertheless there are arguments to consider widening the group
of potential employees of the Service. In the first place, drawing staff from the prison
administration can have the effect of somewhat weakening the staff capacity of the
prison administration. It seemed that the prison administration already sometimes had
difficulties fulfilling all positions. Furthermore, the intention is that a new Service is
developed with new tasks, products and perhaps working methods. In this context,
drawing personnel from outside the prison administration with another perspective
might be effective as well to develop new activities with new working methods.
Various types of staff positions in the Service can be considered. In the framework of
this report I should just like to mention in particular that attention should be paid to
drawing expertise in communication and public relations. For the success and
sustainability of community sanctions and measures public support is important.
Therefore “appropriate information about the nature and content of community
sanctions and measures […] shall be disseminated so that the general public, including
private individuals and private and public organisations and services involved in the
implementation of these sanctions and measures, can understand them and perceive
them as adequate and credible reactions to criminal behaviour”. (R (1992) 16, rule 44)
In R (2000) 22 par. 15 and 18 this is reiterated in similar wordings, indicating that
“vigorous public relations campaigns with a view to winning public support” are
recommended.
Conclusion and recommendations
In conclusion it can be said that much has been done on the formal legal framework.
Work still needs to be done in the field of lower legislation and regulations. No action
has been undertaken to start in practice, although a start has been made with the
18
selection of commissioners and judges have already received training in the new legal
framework.
All stakeholders seem to be positive towards cooperation and are willing to start
implementation. No major obstacles seem to be in the way of starting with
implementation pilots.
The idea of starting one or more pilot projects should be supported. It is good practice
which allows for improvements and adjustments before community sanctions are
introduced nationally.
Throughout this report various recommendations, options and remarks were made on
the basis of the information we received during the mission. A number of the
recommendations are repeated below.
It should be recommended that attention is paid to formulating a clear mission statement
for the Service, either directly in the by-laws or in any strategic policy document
underlying the by-laws. It is important to engage in a process of developing a mission
statement so that general goals, strategic objectives and operational targets may be
derived from that mission statement.
It is recommended that the Ministry considers opening the possibility for extra products
and services that are crucial for the success of the core tasks (i.a. supervision of
suspended sentences and community work). In particular assessment of the risk of reoffending and the advisory functions towards judicial authorities in several stages of the
penal procedure should be considered (e.g. before community sanctions are imposed).
It is recommended that any type of organisational setting of the Service should take into
account a certain degree of flexibility for the local Service units, thus making it able for
local Service units to fine-tune their specific day-to-day activities with their local
partners.
It could be considered to make changes in the organisational setting of the
Commissioner Service, e.g. when an extension of the tasks and responsibilities of the
Service (other than the execution of penal sanctions) are considered. Options are e.g. a)
a public body, financed by the state budget, or b) within the Ministry, but under a
different directorate.
It is recommended that the Service invests in the design of its products and services, e.g.
to defining the products and services in quantity and quality standards, thus contributing
to a transparent, verifiable and efficient Service.
When choosing and developing products and activities, it is recommended that the
Service strives to develop products and tools that are scientifically justified and have
proven its effectiveness. This is important for the support basis in society and the
preparedness of the general public to accept alternative sanctions and probation as well
as to accept the Service as a useful and credible organ in the judicial chain.
It is recommended that the staff of the Commissioners Service receives adequate initial
and permanent (in-service) training and that in due course a proper working
19
methodology for commissioners is developed aiming at the specifics of working with
probation clients (i.e. for the purpose of this report: clients who are sentenced to a
community sanction or measure or a suspended sentence with supervision).
It is recommended that the group of potential employees of the Service is wide and may
include former employees from the Prison Administration, as well as candidates from
other work fields.
20
Report from Luisa Gandini
Assessment Visit of the Serbian System of Alternative Sanctions and Measures:
11.10.2006 – 12.10.2006
First of all I think that a very positive consideration has to be expressed with
regard to three factors:
- the competent organisation of the visit by both the Council of Europe Offices in
Strasbourg and in Belgrade;
- the serene work atmosphere shared within the experts’ group and with all partners;
- the involvement and commitment of the Serbian counterparts, if compared in
particular with the climate we had to register during the visit on the same subject at
the end of June 2005.
One interesting aspect was represented by the fact that the three international
consultants belong to three different Probation systems, if regarded from the point of
view of the Probation Service main organisational aspects: in Scotland the Probation
Service is part of the local social services’ competence; in the Netherlands the Probation
tasks are carried out by private organisations run with public funds; in Italy the Service
for the enforcement of sentences in the community is a national structure under the
Penitentiary Administration’s authority.
When they presented their countries experiences during the various meetings the
Serbian interlocutors could realise that there is no unique “formula” to make things
work, but at the same time that a “scheme” and a strategy are needed, in consistency
with laws, regulations, directives etc., obviously connected to and depending on the
cultural, juridical, social background of the country.
In order to analyse the legal framework of the Probation system in the country we
should refer to three elements:
a) the alternative (community/non-custodial) sanctions and measures provided in
the Criminal Code;
b) the legal requirements to implement each of the alternatives envisaged in the
Law on the Execution of Criminal Sanctions (LECS);
c) the provisions specifying the mission, responsibilities and tasks of the Service in
charge of implementing alternative sanctions and measures.
From the above said point of view the situation in the European countries is not
homogeneous: provisions may be found in the Penal Codes, Laws on the Enforcement
of Penal Sanctions but also in administrative Regulations or in “ad hoc” pieces of law.
However all jurisdictions have to face questions like the following:
 what alternative sanctions and measures shall be made available?
 for what offences and for what offenders might they be used?
 who will take responsibility for implementing them?
Strategic choices are influenced by many factors such as the perception of the
national crime situation, the financial and human resources available for the various
institutions and services which deal with offenders, the importance attached to
21
creating and maintaining humane and ethically defensible practices in the handling
of offenders.
One of the most important strategic choices that has to be made is the extent to
which the legislature shall try to restrict the use of custodial sanctions and “guide”
the courts towards a greater use of alternatives. It is commonly observed that the
judicial systems of Europe differ in the degree of discretion that is accorded to the
judiciary in this matter.
The risk that the use of alternatives may lead, under certain circumstances, to
inconsistencies and inequalities of treatment before the law has to be considered.
Being unfamiliar with the conditions for application, judges fear illegal sentences
and therefore restrict their use, that becomes optional.
On the other side the lack of guidelines leaves much discretionary power to the
judge, whose personal view may become pre-eminent.
In Serbia the main factors influencing non-custodial sanctions sentencing are
certainly connected to the lack of a recognised institution in charge of implementing
them. International experience would show that other factors such as the gravity and
nature of the offence; the criminal record and the characteristics of the offender; the
nature and seriousness of damages have a significant influence on the possible
choice of alternatives.
As stressed in some of our meetings in Belgrade, the training of judges and
prosecutors is essential to promote the probation system: we certainly agree that
alternative sanctions require a criminological approach, more efforts, responsibility
and personal capabilities to overcome traditional sentencing techniques, to accept
the idea of “contract” inherent to most community sanctions, to “trust” the execution
and control of sentences by an administrative body, the Probation Service.
We could also agree that community sanctions have different objectives and that
the judges’ penal views may lead to different applications: some alternatives seem
more suitable that others; judges to whom “re-socialisation” equals “treatment”
could confine probation to specific categories of offenders. On the other hand judges
who think more “punitively” may choose other forms of probation such as intensive
supervision, fines, confiscation, etc. According to some researchers the success of
community service with judges as well could result from its punitive aspect.
Looking at the provisions of Chapter Four – PENALTIES – of the Criminal
Code of Serbia we could make the following comments and proposals:
1) First of all Suspended Sentence under the Protective Supervision
(corresponding to the French “Sursis avec mise à l’épreuve” or to the
German Probation, just to make an example) is not considered a community
sanction and, as a consequence, is not cited among the principal
punishments. Only Community Service is considered as such. We will find
Suspended sentence with Protective Supervision under the CAUTIONARY
MEASURES in Chapter Five.
If we consider the distinction between sanctions and measures adopted in the
Recommendation of the Council of Europe on the subject, we can say that there
is no clear motivation for the choice of placing a “in all respects” community
sanction among the cautionary measures.
The ratio of cautionary measures such as judicial admonition, for example,
seems totally different and is therefore understandable.
22
On the contrary protective supervision with its content of limitations,
positive obligations (orders to do), prohibitions, and supervision by a prescribed
body, has got all the characteristics of a criminal sanction, however alternative it
is.
2) Revocation of driver’s license is introduced among the Types of Punishment
(art. 43), together with Imprisonment, Fine and Community Service. Its
position there seems quite unusual as it is commonly considered as accessory
punishment when the crime is committed with the use of a motor vehicle. It
is true that the following article clarifies that it may be pronounced either as
principal or secondary sanction, but revocation of driver’s license as a
principal punishment, for criminal offences punishable by imprisonment of
up to two years results uncommon.
3) The position of Release on Parole (art.46) just after Imprisonment (art.45),
i.e. among the Sanctions in the Criminal Code, makes it difficult to qualify
Conditional Release as a MEASURE.
A lot of attention has been paid by the Council of Europe to this
alternative measure since 1970, when it was the object of “Resolution (70) 1
on the practical organisation of measures for the supervision and after-care
of conditionally sentenced or conditionally released offenders”.
The new Recommendation – Rec. (2003) 22 on Conditional Release
(parole) provides the following definition: “………conditional release
means the early release of sentences prisoners under individualised postrelease conditions. Conditional release is a community measure. ………..”.
Further considerations will be submitted later on when we deal with
alternatives to imprisonment in the post-sentencing phase.
4) Article 65 on Suspended Sentence under Chapter Five (Cautionary
Measures) presents some contradiction when it provides that “security
measures ordered together with suspended sentence shall be enforced”.
In fact the contradiction is in the ratio of applying a security measure
together with a suspended sentence. If ordering a suspended sentence is
based on the consideration that “the threat of punishment will have sufficient
effect on the offender to deter him from further commission of criminal
offences” (art.64) we may think that the same Court would not apply a
security measure, given that “the purpose of security measure is to eliminate
circumstances or conditions that may have influence on an offender to
commit criminal offences in future” (art78)
Is the Court relying on Suspended Sentence OR on Security Measure to
prevent further commission of crimes by the same offender?
How could the Court’s decision of imposing a security measure be
consistent with par.(4) of art.66 “In determining whether to pronounce a
suspended sentence the court shall, having regard to the purpose of
suspended sentence, particularly take into consideration the personality of
the offender, his previous conduct, his conduct after committing the criminal
23
offence, degree of culpability and other circumstances relevant to the
commission of crime.” ?
5) In the present Serbian Criminal Code Security Measures seem to be the most
evident heritage of the past. With the exclusion of compulsory psychiatric
treatment and confinement in a medical institution and compulsory
psychiatric treatment at liberty that are imposed on a criminal offender when
mentally incompetent, all the other security measures may be ordered where
an offender is under pronouncement of penalty.
As all kinds of security measure in this Code seem to be connected with
the kind of crime and not with the offender’s potential dangerousness, it
would be more appropriate and adequate to a modern Criminal Code to
classify “Compulsory Drug Addiction Treatment ”, “Alcohol Treatment”,
“Prohibition to practise a profession, activity or duty”, “Prohibition to drive
a motor vehicle” and the following ones not as security measures but as
ACCESSORY PUNISHMENTS.
Some of them might more adequately be provided as obligations of an
alternative sanction order as they would strengthen the aim of such a
community sanction by providing individualised treatment.
For example a Protective Supervision Order to be applied to a drug
addict offender might include the obligation of a drug addiction treatment; its
compliance with such an obligation would be supervised by the Probation
Service in co-operation with the local health service in charge of drug
treatments.
The same for alcohol abuse offenders or for those convicted persons who
should be prohibited to drive a motor vehicle.
A Protective Supervision Order to be served, for example, by a white
collar offender, might include the prohibition to practise a certain profession
or to make business under certain circumstances or to have responsibility
tasks in some administrative bodies. The Probation Service would be in
charge of controlling the respect of the Court’s order prohibitions.
A Protective Supervision order to be served by a violent offender might
include, for example, the obligation to receive counselling or to undergo a
psycho-therapy. The Probation Service would verify the offender’s
compliance with the obligation to attend an individual or group therapy.
Proposals
Thinking of a more sophisticated or a wider sanctioning system,
proposals to introduce new provisions in the penal legislation could be put
forward, once favourable conditions arise.
In fact the range of alternatives in the three stages of penal procedure:
pre-trial, trial and sentencing, post-trial, could be enriched in order to cover a
wider circle of demands and expectations and to answer to the justice needs of a
more modern penal system.
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The Serbian Penal Code and Penal Procedure Code do not provide real
and concrete alternatives to pre-trial detention; such alternatives have been
recommended on several occasions by the Council of Europe Recommendations,
the last being the Rec(2006)13 of the Committee of Ministers on the use of
remand in custody.
Pre-trial measures, that are of great significance because of the large
percentage of prisoners detained pending trial (from 25% to 50%), seek to avoid
the use of remand in custody, thus reducing prison overcrowding, the judicial
apparatus overburden and the offenders’ risk of being stigmatised and
contaminated.
In some countries supervision by the Probation Service is provided in
the law or by-law, its aim being to ensure that the suspect will appear for trial
without committing further offences or, for example, to motivate the accused
person dependent on drugs or alcohol to enter treatment.
Examples of alternatives to pre-trial detention in European countries that
might be considered suitable for Serbia are:
conditional or unconditional waiver or discharge (ex: Belgium, Czech Republic,
Norway);
financial settlement or transaction (Czech Republic, France, Netherlands);
compensation, mediation and restitution (Austria, Estonia, France);
bail (Czech Republic, Estonia),police supervision (Bulgaria, Italy, Lithuania),
prohibition to approach a specific place or person (Slovenia);
house arrest – with or without electronic monitoring – (ex: Bulgaria, England
and Wales, Estonia, France, Italy, Slovenia);
undergoing a medical treatment (Bulgaria, England and Wales, Hungary);
attending a training course (France);
provisional probation (Austria)
Among alternatives to pre-trial detention some are at the disposal of the
Prosecutor’s Office and can be applied as part of an out of court settlement.
These modalities, that are aimed at avoiding the need to go to trial, have
developed in those countries where the Prosecutor’s Office has the discretionary
power to settle the case.
We believe that the Service in charge of implementing community
sanctions and measures would have in a near future the possibility to supervise
the offenders submitted to a pre-trial community measure as well. The provision
of the present Penal Procedure Code that requires a suspected offender to reside
at a specified address and be supervised and assisted by a competent agency
could certainly be a significant step in that direction.
The Serbian Penal Code provides in the sentencing phase two alternative
sanctions (community service and revocation of driver’s license) plus a
cautionary measure (suspended sentence under the protective supervision) that
in other countries’ legislation is considered as an alternative or community
sanction (see comments above). Cautionary measures include suspended
sentence and judicial admonition as well.
According to the positive signals we had during our assessment visit, we
believe that favourable conditions will allow to enrich the range of these
sanctions in a near future, in order not only to get the Serbian legal framework
of alternatives closer to the one of other European jurisdictions, but also to make
25
the sanctioning system be more effective to differentiate the penal answer to
crime.
The Serbian way to probation, i.e. to a sentence alternative to
imprisonment, to be enforced in the community, submitted to a period of text,
under the supervision of an implementing authority, is similar to the civil law
South European legislation and not to the British probation, that is an
independent sanction imposed without pronouncement of a prison sentence. The
two forms of suspended sentence (without and with protective supervision) refer
to a prison sentence period of time in connection with the seriousness of crime
and other circumstances. The enforcement of such sentences is suspended and
conditions are imposed.
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In addition to suspended sentence under the protective supervision and to
community service – the implementation of which needs many important preconditions – and leaving apart revocation of driver’s license, that does not imply
any Probation Service’s intervention, some other community sanctions could be
considered as adequate to the Serbian situation.
We would suggest to take into consideration in particular:
Suspended sentence with a Treatment order (for offenders with drug
dependence, for drunk drivers, for sex offenders, for violent offenders etc;
Denmark, Hungary, Sweden).
Home detention (in continuity or not with the pre-trial house arrest; with or
without a curfew order; with or without electronic monitoring; England and
Wales, France); home–detention may also be an alternative measure (Italy).
Week-end detention (for short sentences, to safeguard occupation or family
responsibilities; Portugal); it may also be an alternative measure.
Semi-liberty ab initio (for sentences up to six months, to avoid losing
employment; France); semi-liberty may also be an alternative measure (France,
Italy).
Intensive supervision (for some categories of offenders): it’s a way to avoid
incarceration for those multi-problematic offenders who need stronger
supervision, continuous support and co-ordination of interventions.
Reparation/compensation/restitution order, also combined with Probation
(Ireland, Norway).
Alternatives to imprisonment in the POST sentence phase are
considered, as we said above under the paragraph of Conditional Release,
community MEASURES.
Conditional Release is the only alternative measure provided in the
Serbian Penal Codes. As the related articles have quite poor contents we would
like to remind the Council of Europe’s general principles and recommendations:
General principles refer to the use of individualised post-release conditions and
supervision together with the recommendation to make conditional release available
to all sentences prisoners, including life-sentence ones.
Under the section on Preparation for conditional release co-operation between the
prison staff and the personnel involved in post-release supervision (Probation staff)
is recommended.
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Special regimes like semi-liberty, open regimes, extra-mural placements are cited
among the modalities that prepare prisoners for life in the community, in addition to
internal pre-release programmes.
Concerning the implementation of conditional release in the community, we like to
remind that in the last decades in all Western European countries – and more and
more in the Eastern European jurisdictions – conditional release has always been
coupled with supervision during the remaining period of the sentence and this
supervision is mainly carried out by the Probation Service.
When mentioning the authority in charge of granting conditional release the
Council of Europe’s Recommendation refers to a “decision-making authority”
without specifying its nature, whether judicial or administrative. A distinction might
be found in general between common-law and civil-law countries, in the first
instance (UK and North European countries) the authorities are administrative
bodies, in the second ones (South European countries) they are high or “ad hoc”
Courts or Judges.
We know that in Serbia a lot of attention has been paid on the choice of a justice
body (the Municipal Court). Nevertheless we do not know if the procedure to be
followed can avoid the risk of having a kind of second judgement on the same
offender by the same Court that sentenced him or her in the first degree.
Furthermore we would suggest to take into consideration the possibility that
granting conditional release be assigned to a specialised Court, that could be
composed of professional judges and lay judges (different professionals able to add
elements of knowledge on the prisoner’s personality and to assess his or her
evolution on the basis of the results of the observation carried out by the prison
staff.)
Looking at the European experience in the field of alternatives in the
enforcement phase we can find a few examples of other community measures:
Fragmentation of imprisonment (for short sentences, for not less than 2 days per
week; similar to week-end detention: Albania, Belgium, Netherlands).
Temporary release/release on temporary license (England and Wales).
Home-detention curfew (before automatic release in England and Wales; for
personal and family reasons in Italy; Spain and Sweden).
Semi-liberty, semi-detention, work release, work leave, prison leave (for longer
sentences; for work, education or other reasons; for family visits etc).
The last paragraph gives us the flow to analyse, from the point of view of the
provisions on alternative sanctions and measures and on the Service implementing
them, the Law on the Execution of Criminal Sanctions (LECS).
We will pay special attention to Chapter Five, Six and Seven as they deal with
the Enforcement of the three Community Sanctions that are provided in the Penal
Code.
Chapter Five on the Enforcement of Community Service Order is composed of
only 4 articles, the last one providing that “The Ministry of Justice in co-operation
with the Ministry of Labour shall specify regulations on the enforcement of
community service order”.
The three previous articles do not provide any indication on the Commissioner’s
tasks vis-à-vis of the judicial authority. We know for sure that Community Service
is the most demanding alternative sanction in terms of organisational aspects prior
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to the judge’s decision, i.e. prior to the sentence. Especially at the beginning of the
system evolution lots of contacts are needed, together with testing activities,
evaluation of the different experiences and reactions, adjustments etc. The Judges’
and Court’s involvement would assure the progression and positive exits of the
system as a whole.
We would recommend to introduce in the Law on the Execution of Criminal
Sanctions specific provisions on the ways Judges and Probation Services are to
interact, not only in the enforcement phase but before, in the preparatory phase.
In fact, the contents of the articles give the impression that both the judge and
the offender are external to the process and that only the Commissioner (Probation
Officer) is involved in the procedure and has got total responsibility and power.
Chapter Six on the Enforcement of Revocation of Driver’s License is composed
of one single article: no task in terms of supervision or assistance is given to the
Service and because of it, according to the Council of Europe Recommendation, it
should not be considered as a community sanction.
Chapter Seven on the Enforcement of Suspended Sentence with Protective
Supervision is composed of six articles, none of them specifying the preparatory
work prior to the judge’s decision. Even in the case of Protective Supervision, where
the relationship offender – probation officer – judge is so essential, no instrument is
provided in the law to previously clarify each one’s role and competencies.
By-laws and Regulations are urgently needed to cover subjects that are now
entrusted to the common good will of the counterparts/partners.
Art.188 presents some other critical points, that confirm the choice of letting the
different partners work separately, each of them on his or her own.
On one side, and again, no pre-sentence report is asked by the Court to the
Service, in order to receive information on the offender’s personal, family, work,
background situation; the Judge seems to be alone in his or her decision.
On the other side the Commissioner has to face the duty to prepare the
programme and present it to the sentenced person. Why shouldn’t they do it
together? On what basis would the Commissioner prepare the programme on his or
her own? What kind of relationship would they create if one is intended to remain
totally passive but with the right to file a complaint and the other one is considered
the only “deus ex machina” but remains under the blackmail of a possible
complaint?
In the last sentence of art.188 it is provided that the Commissioner be required to
collaborate with the sentenced person’s family. The meaning of the sentence is clear
(the offender’s family has got an important role in getting the sanction enforcement
successful) but the family’s involvement is presented as one of the Commissioner’s
duties instead of an opportunity left to the sentenced person’s initiative, opportunity
that may be solicited and will obviously be welcome and used by the Commissioner.
Art.189 specifies the sentenced person’s duty to comply with the programme
and the Commissioner’s duty to monitor and check whether the programme is
carried out; but, again, their relationship seems to be based on the bureaucratic
guarantee that entitles the offender to file a complaint about the Commissioner’s
work to the Head of Prison Administration. The result of this way of conceiving the
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enforcement of such an alternative sanction is just the contrary of what it should be,
the opposite of a dynamic interaction aimed to motivate the sentenced person
towards social reintegration.
Art.190 states the Commissioner’s duty to notify the Court at least every six
months about the results of the enforcement of protective supervision. Paragraph 3
provides that the same duty be accomplished when the Commissioner finds that the
purpose of protective supervision has been achieved. The article does not state what
this information would be for. Might the scope be an earlier conclusion of the
probationary period? Might it be to motivate lighter obligations or less heavy
limitations?
Looking at the chapters of the Law on the Execution of Penal Sanctions
concerning the enforcement of alternatives we realise that there is no provision on
the mission, responsibilities and organisation of the Service in charge of
implementing them.
Where duties are reminded, they are always presented as the single
Commissioner’s and not the Service’s duties, i.e. the organisation’s duties and tasks,
with the risk of personalising not only the relationship commissioner – client but
also the interaction between the Service and the judiciary.
As a consequence, according to the Law, the drawing of the Service seems to
lack of a strategic line and an overall view and each provision doesn’t look to be
part of a unique and consistent framework.
The Law should provide general principles and aims, clear mission and those
organisational aspects that make the administrative bodies sure of their actions and
confident in their effectiveness.
Let’s make an example of more accurate and detailed provisions concerning
general principles and aims of implementing alternative sanctions and measures and
the Service’s mission and tasks:
General provisions on the execution of alternative punishments
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An alternative punishment shall be executed in a manner that is consistent with the
dignity and basic rights and freedoms of the convicted person and his or her family.
A convicted person whose dignity or basic rights and freedoms were violated during
the execution of an alternative punishment shall be entitled to compensation.
Prior to the imposition of an alternative punishment the Court may request a presentence report from the Service. The Service shall submit the pre-sentence report to
the Court within ………weeks of such request.
The pre-sentence report may identify which alternative punishment or punishment
would be appropriate for the convicted person in view of the objectives of
rehabilitation and prevention of the commission of criminal offences in the future.
During the enforcement of an alternative punishment, when a court receives a
Service report which contains information about a violation of the conditions
imposed or a failure to perform an obligation, the court shall consider the
revocation of the alternative punishment and inform the convicted person of the
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content of the report and shall give him or her the right to respond to the report. The
convicted person shall be advised of his or her right to the assistance of defence
counsel at his or her own expense.
During the period that the revocation is under consideration, the execution of the
alternative punishment shall be suspended.
After reviewing the report of the Service and any response received from the
convicted person or his or her defence counsel, the court shall determine whether to
revoke the alternative punishment or to take other action.
The court shall issue a motivated decision within ………days of receiving the report
from the Service. The decision shall be sent to the convicted person, defence
counsel, Service and the public prosecutor.
The decision may be appealed by the convicted person within ………days of
receiving the decision.
Execution of a suspended sentence
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When the court imposes a suspended sentence, it shall immediately send the
judgement and all information in its possession to the competent Service to execute
this alternative punishment.
If a convicted person is held in detention on remand, the court shall also send the
decision to the detention facility where he or she is held. The director of the
detention facility shall release the convicted person in order to execute this
alternative punishment.
When the court imposes a suspended sentence and orders the performance of an
obligation, the Service shall supervise the performance of the obligation.
If a convicted person fails to perform an obligation ordered by the court, the Service
shall inform the court after verifying facts and the reasons for the failure to perform
the obligation.
The successful completion of the verification period shall be reported by the Service
to the court. Upon the receipt of such report, the court shall issue a decision stating
that the alternative punishment has been served.
Execution of suspended sentence with protective supervision
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If a convicted person fails to maintain contact with the Service, the Service shall
inform the court after verifying facts and the reasons for the failure to maintain
contact.
When the court imposes a suspended sentence with protective supervision and
orders the performance of an obligation, the Service shall supervise the performance
of the obligation.
If a convicted person fails to perform an obligation ordered by the court, the Service
shall inform the court after verifying facts and the reasons for the failure to perform
the obligation.
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The successful completion of the verification period shall be reported by the Service
to the court. Upon the receipt of such report, the court shall issue a decision stating
that the alternative punishment has been served.
Enforcement of a Community Service order
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The Service shall develop a programme for community service work for a convicted
person, in accordance with the provisions of the Criminal Code, and with his or her
abilities, skills and background.
The Service shall supervise the execution of a community service order.
The Service will, in co-ordination with the organisation where the work is to be
performed, develop rules for insurance for workplace injury or illness, general
behaviour in the workplace and other relevant matters prior to the commencement
of community service work. The general rules relating to working hours, breaks,
weekly rests and workplace safety shall apply to the performance of community
service work.
If a convicted person fails to maintain contact with the Service or to perform an
obligation ordered by the Court, the Service will inform the court after verifying
facts and the reasons for the failure to maintain contact or to perform the obligation.
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The organisation where the community service work is to be performed shall
immediately inform the Service if the convicted person fails to perform the work
satisfactorily. Failure to perform the work satisfactorily, that includes late arrival to
work, unauthorised absence from work, failure to comply with work rules and
regulation disobedience, shall be assessed by the Service and reported to the court.
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If a convicted person is unable to perform the community service work due to
changed circumstances, the Service may revise the programme.
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The execution of an order for community service may be stayed or suspended due
to: sudden illness of the convicted person, which requires medical treatment and
prevents him or her from performing work; any other extraordinary circumstance
which requires the constant presence of the convicted person for humanitarian
reasons.
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The court shall issue a decision on the stay or suspension of the execution of a
community service order; the decision shall specify the period of stay or suspension.
The Service for the Execution of Alternative Punishments
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The Service for the Execution of Alternative Punishments is under the authority and
the responsibility of the competent public entity within the Ministry of Justice.
The Service shall be responsible for:
1) preparing social enquiries on minor offenders;
2) delivering pre-sentence reports when requested by the court;
3) supervising and assisting convicted persons serving alternative punishments;
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4) supervising and assisting perpetrators addicted to drugs or alcohol subject to
mandatory rehabilitation treatment which is executed in liberty;
5) supervising and assisting convicted persons granted conditional release>;
6) guiding and supporting convicted persons on the completion of their
sentence;
7) any other task defined by the competent public entity within the Ministry of
Justice.
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The SERVICE is organised on two levels: central and local.
The central level is represented by the Central Office at the Headquarters. The
Central Office is responsible for providing guidelines, planning, organising, coordinating, monitoring and checking on the activity of the local offices and has
overall responsibility for them.
The local level is made up of District (or ………) Services, which are located in
the towns where a District (or ………)Court is also located: …………
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STAFF
Recruitment of all levels of personnel except clerical staff is through a public
competitive examination within the whole area of the country (or region?)
There shall be no discrimination in the recruitment of staff on the ground of
race, ethnic origin, religion, language, sex, age, political or other opinion.
The commissioners are required to have a university diploma or equivalent in
one of the following subjects: Social Sciences or Social Work, Law, Psychology,
Pedagogy or Educational Sciences, Sociology, ………..
Once recruited, the Commissioners attend training courses organised by the
competent central authority, the objective of which is to make them aware of their
responsibilities with regard to rehabilitating offenders, ensure the offenders’ rights
and protecting society. Training will also give the Commissioners an understanding
of the need to co-operate in and co-ordinate activities with the agencies concerned.
They are not fully qualified until completing ……months training programme
which includes both instruction and on-the-job experience.
An oral performance evaluation is needed prior to the end of a probationary
period of ……months.
After being appointed to their position the Commissioners shall improve
knowledge and professional capacity by attending in-service training and refresh
courses.
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MANAGEMENT
Each District Service in an organisational Unit to which staff is assigned in
conformity with the criminal population requirements.
The Service is led by a director who is the guarantor of, and ultimately
responsible for, the running of the service.
The Director is also responsible for representing the Service with the external
organisations such as judicial authorities, public administrations, social services,
private organisations and voluntary associations, for general issues or programs of a
general nature.
The criteria used to assign a case are not related to the kind of offence
committed nor to the offender’s personal problems.
Cases are assigned through a formal procedure, with an administrative order
issued by the Director of the Service.
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DOCUMENTATION SYSTEM
All the Service activity is recorded. The documentation related to each single
case makes up the client’s file, which comprises documents from both outside the
service (sentences and orders by Judicial authorities, requests for action by the
Service, received documents, certificates, etc.) and from within (appointment of the
Commissioner, records of meetings with the client, of visits to his or her home and
of contacts with other services; reports sent to the judge, to the penal institution, to
another Service in case of transfer etc.).
All clients personal data must be handled within the provisions of the penal
legislation, the Regulations pertaining to professional confidentiality and the
provisions relating to protection of privacy.
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