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(22 mars 2002) Draft recommendation on conditional release (parole)

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Dernière modification : 9 August 2010

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Strasbourg, 22 March 2002
pc-cp\docs 2002\pc-cp (2001) 11rev3 - e PC-CP (2001) 11 REV3


EUROPEAN COMMITTEE ON CRIME PROBLEMS
(CDPC)

Council for Penological Co-operation
(PC-CP)

Draft recommendation on conditional release (parole)

As revised at the 43rd meeting of the PC-CP
(20-22 March 2002)


Draft Recommendation No. [...]

As revised by the PC-CP during its 42nd meeting

of the Committee of Ministers to member states on conditional release (parole)

(adopted by the Committee of Ministers on [ ...]
at the [...] meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe ;

Considering that it is in the Council of Europe member states’ interest to establish common principles regarding the enforcement of custodial sentences in order to strengthen international co-operation in this field ;

Recognising that conditional release is one of the most effective and constructive means to prevent re-offending and to promote resettlement, providing the prisoner with planned, assisted and supervised reintegration into the community ;

Considering that it should be used in ways that are adapted to individual circumstances and consistent with principles of justice and fairness ;

Considering that the financial cost of imprisonment places a severe burden on society and that research has shown that detention often has adverse effects and fails to rehabilitate offenders ;

Considering, therefore, that it is desirable to reduce the length of prison sentences as much as possible and that conditional release before the full sentence has been served is an important means to that end ;

Recognising that conditional release measures require the support of political leaders, administrative officials, judges, public prosecutors, advocates and the public, who therefore need detailed explanation as to the reasons for adapting prison sentences ;

Considering that legislation and the practice of conditional release should comply with the fundamental principles of democratic states governed by the rule of law, whose primary objective is to guarantee human rights in accordance with the European Convention on Human Rights and the case law of the organ entrusted with its application ;

Bearing in mind the European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders ;

Recognising the importance of :

- Resolution (70) 1 on the practical organisation of measures for the supervision and after-care of conditionally sentenced or conditionally released offenders ;

- Resolution (76) 2 on the treatment of long-term prisoners ;

- Recommendation No. R (87) 3 on the European Prison Rules ;

- Recommendation No. R (92) 16 on the European Rules on community sanctions and measures ;

- Recommendation No. R (92) 17 concerning consistency in sentencing ;

- Recommendation No. R (97) 12 on staff concerned with the implementation of sanctions and measures ;

- Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation ;

- Recommendation No. R (2000) 22 on improving the implementation of the European Rules on community sanctions and measures ;

Recommends that governments of member states :

- be guided in their legislation, policies and practice on conditional release by the principles contained in the appendix to this Recommendation and, in particular, consider introducing this measure if their law does not already provide for it ;

- ensure that this Recommendation on conditional release and its explanatory memorandum are disseminated as widely as possible.

Appendix to Recommendation No. R [...]

Definition of conditional release

1 For the purposes of this Recommendation, conditional release means the release of sentenced prisoners to serve the remaining part of their sentence in the community under individualised post-release conditions and supervision. Amnesties and collective pardons are not included in this definition.

2 Conditional release is a community measure. Its introduction into legislation and application to individual cases are covered by the European Rules on Community Sanctions and Measures contained in Recommendation n° R (92) 16 as well as by Recommendation No. R (2000) 22 on improving the implementation of the European Rules on community sanctions and measures.

General Principles

3 The primary purpose of conditional release should be to assist prisoners to make a transition from life in prison to a law-abiding life in the community through post-release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community.

4.a. In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee community safety, the law should make conditional release available to all sentenced prisoners, including life sentenced prisoners.

4.b. An exception to this rule may be made for prisoners who serve very short sentences

5 When starting serving their sentence, prisoners should know either when they become eligible for release by virtue of having served a minimum period (defined in absolute terms and/or by reference to a proportion of the sentence) and the criteria that will be applied to determine whether they will be granted release ("discretionary release system") or when they become entitled to release as of right by virtue of having served a fixed period (defined in absolute terms and/or by reference to a proportion of the sentence - "fixed-term system").

6 Conditional release should be regulated so as to ensure that the minimum or fixed period is neither so small as to constitute an unacceptable interference with the length of imprisonment decided by the court, nor so large that the primary purpose of conditional release can not be achieved.

7 All conditionally released prisoners should be required to refrain from engaging in criminal activities. It should furthermore be possible to impose additional conditions, which have to be adapted to the circumstances of each individual prisoner.

8 In principle, conditional release should also be accompanied by supervision consisting of help and control measures. The nature and intensity of supervision should be adapted to each individual case. Adjustments should be possible throughout the period of conditional release. There may be circumstances where supervision is not, or ceases to be, necessary.

9 With the exception mentioned below, no condition or supervision measure should be imposed for a period of time that is longer than the portion of the prison sentence that has not been served.

10 Conditions and supervision measures of indeterminate duration should only be applied when this is absolutely necessary for the protection of society and in accordance with the safeguards laid down in Rule 5 of the European Rules on community sanctions and measures as revised in Recommendation No. R (2000) 22.

Preparation for conditional release

11 The preparation for conditional release should start well in advance of the expected release date and be organised in close cooperation between all relevant personnel working in prison and those involved in post-release supervision.

12 Prison services should ensure that prisoners can participate in appropriate pre-release programmes and are encouraged to take part in educational and training courses that prepare them for life in the community. Specific modalities for the enforcement of prison sentences such as semi-liberty, open regimes or extra-mural placements should be used as much as possible with a view to preparing the prisoners’ resettlement in the community.

13 The preparation for conditional release should also include the possibility of forging contacts with services, organisations and voluntary associations that can assist the conditionally released prisoner to adjust to life in the community. To this end, various forms of prison leave should be granted.

14 Early consideration of appropriate post-release conditions and supervision measures should be encouraged. The possible conditions, the help that can be given, the requirements of control and the possible consequences of failure should be carefully explained to, and discussed with, the prisoner.

Granting of conditional release

Discretionary release system

15 The minimum period that a prisoner has to serve to become eligible for conditional release should be fixed in accordance with the law.

16 The relevant authorities should initiate the necessary procedure to enable a decision on conditional release to be taken and implemented (unless it is negative) by the time the prisoner has served the minimum period.

17 Only in exceptional circumstances defined by law should it be possible to postpone the moment of decision-making.

18 The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit. They should also be realistic in the sense that they should take into account the prisoners’ personalities and social and economic circumstances as well as the availability of resettlement programmes.

19 The lack of possibilities for work on release should not constitute a ground for refusing or postponing conditional release. Efforts should be made to find other forms of occupation instead. Nor should the absence of regular accommodation constitute a ground for refusing or postponing conditional release. Temporary accommodation should be arranged instead.

20 The criteria for granting conditional release should be applied so as to grant conditional release to all prisoners who are considered as meeting the minimum level of safeguards for becoming law-abiding citizens.

21 If the deciding authority decides not to grant conditional release it should set a date for reconsidering the question. In any case, prisoners should be able to reapply to the deciding authority as soon as their situation has changed to their advantage in a substantial manner.

Fixed-term system

22 The period that the prisoner must serve in order to become entitled to release should be fixed by law.

23 Only in exceptional circumstances defined by law should it be possible to postpone release.

24 The decision to postpone should set a new date for release.

Imposition of conditions

25 When considering the conditions to be imposed and whether supervision is necessary, the deciding authority should receive reports from, and preferably hear in person, personnel working in prison who are familiar with the prisoner and his or her personal circumstances. Professionals involved in post-release supervision or other persons knowledgeable about the prisoner’s social circumstances should also report and preferably be heard.

26 The deciding authority should make sure that the prisoner understands the imposed conditions, the help that can be given, the requirements of control and the possible consequences of failure to comply with the conditions.

Implementation of conditional release

27 The implementation of conditional release and supervision measures should be the responsibility of a professionally competent implementing authority in compliance with Rules 7, 8 and 11 of the European Rules on community sanctions and measures.

28 Implementation should be organised and dealt with in compliance with Rules 37 to 75 of the European Rules on community sanctions and measures and with the basic requirements for effectiveness set out in principles 9 to 13 of Recommendation No. R (2000) 22 on improving the implementation of the European Rules on community sanctions and measures, as applicable.

Failure to comply with imposed conditions

29 Any significant failure to observe imposed conditions should be promptly reported to the authority deciding on possible revocation. This authority should, however, consider whether further advice, a further warning, stricter conditions or temporary revocation would constitute a sufficient penalty. Minor failures should be dealt with by advice and warning. The conviction for a criminal offence committed during the period of conditional release should lead to an assessment of the need to initiate the procedure for revocation.

30 In general, the failure to observe imposed conditions should be dealt with in accordance with the provisions of Rules 76-88 of the European Rules on community sanctions and measures, as applicable.

Procedural safeguards

31 Decisions on granting, postponing or revoking conditional release, as well as on imposing or modifying conditions and measures attached to it, should be taken by authorities established by law in accordance with procedures surrounded with the following safeguards :

a) Convicted persons should have the right to be heard in person and to be assisted by a person of their choice, including a lawyer.

b) The deciding authority should give careful consideration to any elements, including statements, presented by convicted persons in support of their case.

c) Convicted persons should have access to the file.

d) Decisions should state the underlying reasons and be notified in writing.

32 Convicted persons should be able to make a complaint to a higher deciding authority against the substance of the decision as well as against non-respect of the procedural guarantees.

33 Complaints procedures should also be available concerning the implementation of conditional release.

34 All complaints procedures should comply with the guarantees set out in Rules 13 to 19 of the European Rules on community sanctions and measures.

Methods to improve decision-making

35 The use and development of reliable risk and needs assessment instruments to assist, in conjunction with other methods, decision-making should be encouraged.

36 Information sessions and/or training programmes should be arranged for decision-makers, with contributions from specialists in law and social sciences and all involved in the resettlement of conditionally released prisoners.

37 Steps should be taken to ensure a reasonable degree of consistency in decision- making.

Information and consultation on conditional release

38 Politicians, judicial authorities, deciding and implementing authorities, community leaders and associations providing help to victims and prisoners should receive information and be consulted on the functioning of conditional release and on the introduction of new legislation or practice in this field.

39 Deciding authorities should receive information about the numbers of prisoners successfully completing or failing to complete conditional release.

40 Media and other campaigns should be organised to keep the general public informed on the functioning and new developments in the use of conditional release and its role within the criminal justice system. Such information should be made speedily available in the event of any dramatic and publicised failure occurring during a prisoner’s conditional release period. Since such events tend to capture media interest, the purpose and positive effects of conditional release should also be emphasised.

Monitoring, research and statistics

41 In order to obtain more knowledge about the appropriateness of existing conditional release systems and their further development, evaluation should be carried out and statistics should be compiled to provide information about the functioning of these systems and their effectiveness in achieving the basic aims of conditional release.

42 In addition to the monitoring and evaluation recommended above, research into the functioning of conditional release systems should be encouraged. Such research might well, for example, include the views, attitudes and perceptions on conditional release of judicial and deciding authorities, implementing authorities, victims, members of the public and prisoners. Other aspects that should be considered include whether conditional release is cost-effective, whether it produces a reduction in the re-offending rates, the extent to which conditionally released prisoners adjust satisfactorily to life in the community and the impact the development of a conditional release scheme might have on the imposition of sanctions and measures and the enforcement of sentences. The nature of release preparations should also be subject to research scrutiny.

43 It is desirable that statistics be kept on such matters as the number of prisoners granted conditional release in relation to eligibility, the length of the sentences and the offences involved, the proportion of time served, number of revocations, reconviction rates as well as the criminal history and socio-demographic background of conditionally released prisoners.