Peculiarities in the execution of judicial supervision measures and probation measures as alternatives to detention
One of the four freedoms enjoyed by citizens of the European Union is the free movement of workers. This involves the right of workers to free movement and residence, the right of entry and residence for their family members and the right to work in another Member State and to be treated equally with nationals of the Member State they arrive in.
In accordance with the statement of reasons of the Framework Decision 2009/829/JAI of the Council of October 23, 2009 regarding the application, between the member states of the European Union, of the principle of mutual recognition in the matter of decisions regarding judicial supervision measures as an alternative to preventive arrest: “with regard to the detention of persons subject to criminal proceedings, there is a risk of different treatment for those resident in the state where the trial takes place and non-residents: a non-resident suspect is at risk of being placed in pre-trial detention for the duration of the trial, although, in similar circumstances, a resident would not risk such a situation. In a common European area of justice without internal borders, it is necessary to act to guarantee that a person who is the subject of criminal proceedings, who is not resident in the state where the trial takes place, is not treated differently from a person subject of criminal proceedings and who is resident in that state”.
The recognition at the level of the European Union and the supervision of suspended sentences, of the definitive solutions to postpone the application of the sentence, of the alternative sanctions and decisions on conditional release are aimed at increasing the chances of social reintegration of the convicted person, allowing him to keep his family, linguistic, cultural or other types of ties, but also improving the monitoring of compliance with probation measures and alternative sanctions, with the aim of preventing recidivism.
Probation measures and alternative sanctions that must, in principle, be mandatorily supervised include, among others, provisions on behaviour (such as the obligation to stop drinking alcohol), residence (such as the obligation to change residence for cases of domestic violence), education and training (such as the requirement to take “safe driving classes”), leisure activities (such as the requirement to stop playing or participating in a particular sport) and limitations on the ways of performing a professional activity (such as the obligation to look for a professional activity in another work environment).
Pursuant to Council Framework Decision 2008/947/JAI of 27 November 2008 on the application of the principle of mutual recognition in the case of court judgments and probation decisions in order to supervise probation measures and alternative sanctions, by virtue of a form of consolidated judicial cooperation at the level of the European Union, the member state in which the person in question was convicted may transmit to the member state where the convicted person has his habitual legal residence a court decision and, on a case-by-case basis, a probation decision, in order to recognize them and supervise the probation measures or of the alternative sanctions provided for by the said judgment or decision.
By transposing the two mentioned framework decisions into the domestic legislation, the national legislator removed any impediment to the ordering of a non-custodial preventive measure or a solution to postpone the application of the punishment or to suspend the execution of a punishment under supervision against a Romanian citizen residing in another state of the European Union.
Equally, the two framework decisions allow the execution of supervision or probation measures in Romania when they are ordered by foreign authorities against persons who have a permanent occupation on the territory of Romania, even though they are not Romanian citizens.
Although this European regulation has been transposed into national legislation, creating as such all the prerequisites for the recognition of judicial supervision measures ordered by foreign authorities regarding persons who may be on the territory of Romania, as well as for the request for the recognition of such measures ordered by the Romanian authorities, there is still reluctance in the practical application of these procedures, not infrequently being refused a request to replace the preventive arrest measure with another non-custodial measure or a request to individualize the prison sentence in a non-custodial regime, only for the reason that the accused person is not a Romanian citizen or does not live permanently on the territory of Romania. The purposefulness of transposing the two framework decisions into legislation is to eliminate any possibility of reaching such an interpretation, totally contrary to the principles and values of the European Union.