THE FRENCH PROBATION SERVICE SYSTEM: History, Actual Trends and Legal Bases

Thomas Gilly,
Jean-Claude Salomon

 THE FRENCH PROBATION SERVICE SYSTEM
History, Actual Trends and Legal Bases
[1]

Historical Development of the Probation Service System,

The French Probation Service is a part of the Penitentiary Administration, and consequently it comes under the authority of the Ministry of Justice. This does not mean, however, that it is an exclusively public Service. Today, both sectors work hand in hand. In community service, for exa­mple, there is a strong culture of participation with private project agencies. As a result of New Prevention policing, NP ("nouvelle prevention"), which started in the 1980s and the reform move­ment in the criminal justice system, undertaken by successive French governments over the last two decades, a strong network of co-operation and co-ordination has developed between both sectors. This network operates in the spirit of the reform movement, which sets out to ensure that criminal justice is implemented at a local level, and furthers the development of communi­ty justice.

In contrast with this, the primacy of the private sector remains a strong characteristic of 19th century intervention. This is of particular significance for the period from the end of the 19th century up to 1945. The general principle was to entrust only private, mainly Christian, chari­table organisations with the provision of post-sentence assistance and the care of offenders. Until 1945, when the penitentiary system was reformed, post-sentence care and assistance was essen­tially the work of societies or clubs. These societies joined together and formed the Union des sociétés de patronage in 1893. In order to help develop this movement, the State limited its intervention (legislation, August 14th 1885) and only gave financial support. The public servi­ce's involvement in post-trial care and assistance has developed steadily from 1945 to the pre­sent day. Undoubtedly, France has a long public service tradition and history. This is particular­ly true of several traditional probation measures, such as fines, short periods of imprisonment, pardon, the supervision of the `dangerous', and the concept of community service. Indeed, the revolutionary and Napoleonic Penal Codes already provided for these initiatives.

In France, the development of the Probation Service cannot be considered independently of the wider European context. The Italian positivist movement was responsible for conditional release ("liberation conditionelle ) (August 14th 1885), the suspended sentence ("sursis d l' execu­tion") (March 26th 1891), introduced for first offenders, and finally the exclusion of an indivi­dual from specified locations ("interdiction de sejour"). The latter aimed to prevent recidivism and took the place of a special scheme of police supervision ("surveillance de la haute police") (May 29th 1885). It is also important to take onto account the alternative sanctions' movement in Europe. This movement developed in the 1970s as a response to rapid growth in the prison population. Several reports and official statements, e.g. that of the President of the French Association of Special Sentencing Judges (Association nationale des juges d' application de peine", ANP) on proba­tion (February 7th, 1997 in the French Senate)2, brought out the fact that the French concept of probation refers to the concept of community service as defined by the European Council, i.e. "sanctions and measures executed in the community".

In addition, Marc Ancel's3 new social defence movement has clearly had a very important inf­luence on the French system. History shows that the Probation Service in France is a synergy of classical social defence and Ancel's new movement: The French concept of NP is a good illust­ration of the exciting development and enforcement of this synergy.

NP is synonymous with the French model of community safety policy (`politique de la securite interieur"). This policy aimed to extend traditional schemes of crime prevention to different local / community policies e.g. policing, social, housing. It started in the 1980's as a result of the famous Bonnemaison report4. As a result of local safety contracts ("contrats locaux de securite", CLS) and territorialisation, the different local policies introduced by the Bonnemaison report developed into an urban safety policy. This policy took into account all positive available resour­ces to form a strategy that could integrate all aspects of safety prevention, education, protection, and surveillance. A network was developed between central and local government, the judiciary and the police. This network has enabled the development of local policing (`police de proximite") and the implementation of criminal justice at a local level. In line with the newly formed con­cept of community safety policy, all these organisations work hand in hand, including education and health and the private and public sectors.

Today, probation is far less the individualised sanction it used to be, with work based around the traditional concept of the individual relationship, and is instead more to do with risk and target group management. Several facts illustrate this new focus: Firstly, the Probation Services' objectives are no longer focused primarily on the offender. In accordance with community pre­vention, the Probation Service is increasingly entrusted with the protection of victims and socie­ty. Secondly, probation is now part of community safety policy. As a result of this, probation measures can no longer be defined along traditional lines, i. e. as community sanctions and more generally, alternative sanctions. Thirdly, prison reform instigated by the Jospin Government encompassed a role for the Probation Service that is much more in line with public safety than previous legislation. Finally, Guillonneau and Kensey underlined in a recent report5 that, even if the development of PALs during the 1980s went hand in hand with a steady decrease in the prison population, the problem of prison overcrowding has not been resolved. The authors recommend reinforcing the concept of conditional release, by emphasising its relevance to public safety and/or to reduce the number of available sanctions. It is, however, the opinion of the authors that the use of PALs should not fall into disrepute.

There is further evidence that Probation has become part of risk and target group manage­ment:

· Pre-trial intervention by the Probation Service through participation in the, national, depart­mental and local CP Councils and involvement in local urban safety appraisals ("Diagnostics locaux de l' insecurity urbaine").

In the reform of the legal framework for juvenile and minor delinquency (Ordinance of 1945), emphasis is put on the development of a synergy between punitive, social/education­al and medical treatments. The reform provides for the renewal of the judicial Protection of Youth Services ("Protection ,Judicaire d la Jeunesse") and centres for social/psychological / psy­chiatric treatment.

· In accordance with the Reform Bill for the Penitentiary System, 1998, centres for the arran­gement of sanctions ("Centres pour peines amenagees'), or CPAs were created. These are small centres designed to prepare for the offenders' release into the community and to involve prison probation workers much more in the overall objective of public safety. The CPAs were the response of the Jospin Administration to the Services' shortcomings in the treatment and care of those offenders sentenced to short prison terms and recidivists. In addition, their cre­ation reflects concern about those offenders with high levels of social disintegration and as a result, where difficulties arise in applying traditional PALs and intervening in the usual way e.g. in focusing on access to work, and professional development. The need for greater invol­vement of such offenders in their progress and in any arrangements for the implementation of the sanction was recognised.

· Electronically monitored home detention ("surveillance electronique") was established in law on December 19th 1997.

· A post-trial social/educational support and supervision regime was established in law on June 17th, 1998 for the prevention of sexual re-offending. This can be applied up to a maximum period of 10 years when the offence is a misdemeanour ( delit") i.e. an offence which is punis­hable with a correctional penalty. If the offence is a crime, i.e. an offence punishable with a criminal penalty, the measure can be applied up to a maximum of 20 years (more details are provided on this distinction in Chapter 2). The regime involves, amongst other conditions that must be fulfilled by the offender, compulsory medical treatment. Re-imprisonment can result if the offender does not abide by the condition of medical treatment and / or other requirements.

Due to this new situation, both an increase in the number of probation staff and the diversifica­tion of the Service's work have become apparent. Community service ("Travail d' Interet General", TIG) is no longer the principal and only measure, and has lost much of its importance as a sti­mulus for the link of the Service into community. With regard to this, difficulties in management and other structural problems helped developing the crisis of community service. According to Faget6, the latter was partially the result of bureaucracy and profit -making with community ser­vice. These factors speeded up the decline of the socio - educational aims. This situation belongs to the past, to those times when community service was at the core of Probation.

The history of the Probation system is in part the history of what is referred to by some aut­hors as `probation's original paradox'7. The paradox is that of giving a Service whose role is to implement penal sanctions the objective of social rehabilitation. This contradiction has had a sti­mulating effect on the reform movement, which has involved the Probation Service's principle actors. These actors being; the Probation Committees ("Comites de probation et d' assistance aux liberes ; CPAL), the specialist judges who supervise the implementation of the sentences (juge d' application des peines", JAP), the Prison Directorate, and the Prison Social Education Service ("Services Sociaux Educatifs," SSE). The movement led in 1999 to the creation of the Prison Service of Rehabilitation and Probation or SPIP ("Service penitentiaire d' insertion et de probation,')

(Decree no. 99 - 276 13th April 1999). The SPIP is a unified structure encompassing the SSE and the CPALs, i. e. the closed prisons ("milieu fermé", SSE) and the open institutions ("milieu ouvert". CPAL).

Undoubtedly, Probation has become synonymous with the development, from a traditional criminal justice background, of a new concept of local justice. This now provides alternative mechanisms for conflict resolution and prosecution schemes.

II
Legislative Basis and Mission Statement

General

All aspects of the French Probation Service system have a legal basis, consisting of legislation and government regulations e.g. Constitutional Court decisions, laws, decrees, regulations, circulars. As a part of the penal system Probation is governed by European guidelines. The European Convention of Human Rights is also very relevant; this is particularly true for articles 7 and 8 concerning the offender's right to refuse TIG. The International Convention of Civil and Political Rights came into effect in France on February 4th 1981. By virtue of Article 55 of the Constitution the normative value of the Convention is stronger than that of the national law.

According to the legal system of the Conseil Constitutionnel, the two functions of a penalty, those of rehabilitation and individualisation, stand above ordinary legislative rules. Nevertheless the constitutional value of rehabilitation and individualisation give rise to controversial juris­prudence. Criminal law and criminal procedure comprise the most important part of the nation­al legal system; the Penal Code (PC) and the Code of Criminal Procedure (CCP) form the core. The Penal Code encompasses the sanction system. The latter covers principal, complementary (Article 131 - 10 PC) and alternative penalties, introduced by the Act of 29th December 1975, and the basic rules for Community Service created in 1983. The legislative basis for the aims, organisation and structure of the Prison Service of Rehabilitation and Probation is decree no. 99­278 of 13th April 1999. With this decree the relevant rules of the CCP, which governed service in the past, were reformed, and SPIP was created. Section XI (Article D 572 - 587) includes three chapters, each of them dealing respectively with the aims of the Service, the new powers of the JAP and other magistrates playing a leading part, and finally the organisation and work of the Service. SPIP's intervention covers the three different aspects of the execution of penalty: the closed prison environment ("milieu ferme'), the semi-open and open environment ("milieu semi ouvert / ouvert") and implementation of the penalty in the community ("milieu libre").

Public administration law, employment regulations, several measures of the Social Welfare Code and the social security legislation make up the other parts of the legal framework. The rules of the Code de travail and the social security legislation govern prison work and the work of the TIG. Some parts of the Road Traffic Code are relevant for the work of the TIG as a sanc­tion for traffic offences.

Sanction system

Amongst the characteristics of the sanction system the most important element is the tripartite of criminal offences - "crime, delit, and contraventions" i.e. crimes punishable with a "peine cri­minelle", "delicts" or misdemeanours punishable with a "peine correctionnelle" and finally minor violations of the law punishable with a "peine contraventionnelle".

The penalties applied to crimes are:

· life imprisonment;

· imprisonment for a period of 15, 20 and 30 years;

· the minimum period of imprisonment for criminal offences is 10 years.

· imprisonment does not preclude fines and complementary penalties.

The penalties applied to misdemeanours are:

· imprisonment from 6 months up to a maximum period of 10 years;

· fine of a minimum of 375 Euro, variable up to 5 million Euro for fencing and up to 50 million for drugs offences and daily fines;

· community service;

· A new citzenship training period initiated under the Perben II law of March 9th, 2004.

· penalties of Art. 131 - 6 PC, e.g. complete or partial revocation of the driving licence, confis­cation, prohibition of the accused from carrying out a particular occupation or other activi­ties;

· complementary penalties e.g. Article 131 - 10 PC, e.g. withdrawal of particular civil rights, prohibitions, confiscation, closure of a business, conditional medical treatment.

The penalties applied to minor violations of the law ("contraventions") are:

· fine from 38 to 1,524 Euro;

· penalties defined by Article 131 -6 PC (for "contraventions de 5 me classe", which are the most serious of the minor violations).

Offenders and offences

As a broad concept, the use of probation is relevant for all citizens, regardless of the nature of their social behaviour. This incorporates the traditional as well as the new meaning of probation i.e. prevention and community justice, alternative conflict resolution and prosecution. In the tra­ditional and restrictive sense, probation is used as a penalty for three categories of offences: offences of common law; political crimes; offences committed in the army. In contrast to this, probation is used for all minors or juveniles as a measure that is educational, and assists and pro­tects. It is used for minors and juveniles (8 to 18 years) regardless of whether they have com­mitted a crime. Probation can be used wherever a minor is at risk, e.g. where there is social dis­integration or there are health problems. Minors and juveniles are currently placed under the supervision of a special Youth Protection Office ("Protection Judiciaire de la Jeunesse"). Treatment is a combination of social and/or medical primary prevention, together with those measures that are formally part of the criminal justice system (secondary and tertiary prevention).

According to the French tradition, the original concept of probation is very restrictive. It covers the traditional probation sanctions:

· suspension combined with probation (Article 132- 40 New PC)

· deferment of the penalty combined with probation (Article 132 - 63 PC)

· TIG as the principal or complementary penalty (Article 131- 8; 131- 117 PC), or as

a condition of suspension (Article 132 - 54 PC)

conditional release (Article 729 etc. PC)

exclusion from specified locations (Article 131 - 10 PC)

aftercare (Article D. 544 CCP).

Due to French sentencing tradition, imprisonment is the sanction French judges use as their star­ting point. In contrast with this, the fine is the most frequently used sanction. Suspension com­bined with probation is most frequently applied to violations of the rights of custody to children ("abandon de famille"), and to family and corruption cases (`infractions contre les moeurs"). TIG, alone or combined with a suspension, is much more frequently used for property offences e.g. theft or damage, than for offences against the person. TIG is also frequently used in traffic offences. In all these cases probation is used for sentenced offenders.

The most important legal underpinning of SPIP's aims is decree no. 99 - 276 of 13th April 1999, referred to in Chapter 1. The 6th October Circular, 1999 provides more detailed information on SPIP's aims, organisation and relationships with the judiciary and penitentiary administration.

SPIP's new general aims: SPIP seeks to provide more continuous and efficient support, care and rehabilitation services to offenders. From now on offenders are subject to a treatment regi­me that covers both the milieu ferme and milieu ouvert, and which combines the aims previously assigned to SEE and CPAL.

SPIP's aims in the milieu ouvert are as follows (Article 574 CPP):

· control and supervise any conditions applied to the "population placée sous main de justi­ce" especially in the following cases: suspension of enforcement combined with probation, conditional release, TIG, the exclusion of persons from specified locations, deferment com­bined with probation

· conduct investigations on the accused or convicted offender, when preliminary enquiry/ investigation reports are prepared before any decision is taken by the Court or before a sanc­tion with a restriction of liberty is implemented

· implement, if necessary with the participation of public and/or private organisations, meas­ures aimed to ensure the social reintegration of the offender

· undertake accompanied prison leave, if requested by the offender.

The CPALs and SPIP's participation in various Community Safety Councils ("Conseil Communal de Prevention de la Delinquance", CCPD, "Conseils Departemental de la Prevention de la Delinquance", CDPD) is a good illustration of the Services' increasing involvement in central and, even more important, local crime prevention and risk management. This growing importance is in line with and in the spirit of the Services' reform, that of the prison system and the overall criminal justi­ce system$ introduced by the Jospin Government. It is also in the spirit of the Circular of 28th October 1997, which provides the legal basis for local security agreements. ("Contrats locaux de securite", CLS), i.e. contracts signed by the Prefect, the prosecutor in the primary court ("Procureur de la Reublique") and the major courts. These are the three principle contracting par­ties. The agreements were drafted by the Delegation Interministerielle a la ville et au developpe­ment social urbain (DIV), i.e. the central government institution which was entrusted in 1988 with the tasks and responsibilities of the National Council of Community Safety and the Departmental and Local Community Safety Councils. The safety agreements are aimed to be produced in a way that encompasses local community safety by involving the participation of jus­tices, the police, the education system, central and local government, traders, shopkeepers, social educators etc. The content of the community safety agreements and their production is defined in Local and Departmental Community Safety Plans ("Plan locaux + departementaux de securite ").

The 1998 statistical report of the Prison Directorate underlines that: "CPALs develop and build relationships with all those local, community organisations that contribute to social and educa­tional activities in the field of accommodation facilities, medical treatment, professional educa­tion, employment and the social reintegration of people with problems. The CPAL helps to develop and implement urban policy through its participation in the work of Crime Prevention Community Councils and all those other organisations and networks set up with similar aims. The SPIP seeks to improve co-ordination between the Prison Administration's objective for reha­bilitation and public policies in the field of social action"9.

1. Reception, individual treatment and supervision of offenders.

2. Development and implementation of a partnership network (Article D. 573 CCP); the deve­lopment of positive initiatives focusing on

· social reintegration and access to social rights;

· the prevention of destitution;

· organisation of professional training, education and employment;

· access to culture and education in order to prevent illiteracy;

· medical treatment and sporting activities to prevent drug abuse, and to develop learning

about medical health.

3. Judicial support, preparation of reports to help sentencing, arrangements of the sanction and the development of supervision initiatives.

SPIP's general aims in the milieu ferme, in accordance with Article D. 460, D. 461, are as fol­lows:

· to prevent the breakdown of family and community networks as result of imprisonment

· to keep family and social relationships stable

· to provide support and to prepare for prison leave

The tasks related to these aims are the same as for the milieu convert i.e. the management of professional training and education; the prevention of drug addiction; education for medical health.

III
The Organisation of Probation Service(s)

The re-formed Service is part of the new social control network, encompassing the recently deve­loped focus on prevention and local justice.

The dynamics of the Service's networks: competencies, powers and decision-makers

The work of the Service is based on a network of three principal actors: The sentencing judge who orders the Probation Service measure; the JAP, or specialist judge, who supervises the imple­mentation of sentences and decides the individual treatment plan for each offender, and finally the Probation Service itself. As set out in Chapter 2, the specific authority and role of the JAPs and their relationship with other mandated judges, especially the sentencing judge, is newly defined. The new responsibilities of the JAPs are essentially as follows:

· to decide the general orientation of probation measures undertaken by the SPIP

· to evaluate their practical details

· to undertake these tasks in close co-operation and consultation with the judges who order the measures and the Service. Co-operation between JAPs and other magistrates is defined and written. The judges can ask the Service to see the relevant files; they have the power to give specific instructions concerning the future implementation of the order. The Presidents of the courts supervise this teamwork.

The JAP no longer has administrative authority over the Service, having lost the power to grade workers and to intervene in the Service's internal organisation. Due to new responsibili­ties, the JAPs are likely to be increasingly involved in offenders' appeals against their original sentence; the practice of contradictory debate will increase. Sentences will be transferred from the courts that have the power to sentence offenders, Tribunaux Correctionnels to the JAPs. Due to the developing situation, the traditional powers of the JAPs will increasingly be extended to sentencing.

The reform has seen an extension of the Service's power to manage its own financial resour­ces and budget. Unlike in the past, the management of the Service's financial resources no lon­ger depends on the authority of the directors of the prison establishments. The loss of the JAPs' power over the Service's organisation and working practices goes hand in hand with the loss of the prison directors' budgetary control. In other words the Service has become much more inde­pendent and powerful in its own right. The SPIP also has the power to agree prison visitors. In the past, it was the JAP who controlled this; they now only have the power to rescind any agree­ment.

Organisation and work of the Youth Protection Service

Compared to the Probation Service's structure with its focus on the treatment of adults, the Youth Service is a collaboration between the Children's judge ( Juge d'enfants"), the JAPs, the Court for Minors and the Judicial Protection of Youth (`Protection Judiciaire de la Jeunesse") with its directorate, and the Education Service (SEAT). Article 6 of the ordinance of July 24th 1964 defines the Youth Protection Service's aims as follows: "The Directorate of the Judicial Youth Protection Service takes responsibility for all issues and problems relevant to the protection of young people". This is in line with the concept of young people at risk ("mineurs en danger").

The Youth Protection Service has the power:

a) to undertake research projects, investigations and enquiries; these activities contribute to the development of the legislative basis for crime prevention and the protection of young peop­le

b) to supervise the work of the private sector and co-ordinate public services in the re-educa­tion of young people, offenders and those at risk.

The Service assists the juvenile court judge and co-ordinates the implementation of the rele­vant measures; the Service organises professional training for young probationers and children at risk, as well as for the Service's social workers. What the CPALs and SPIPs does for adults, the Youth Protection Service does for young people.

In 1987, SEAT, the Education Service, was founded and introduced into each juvenile court. Its main task is to help the juvenile court judge in the process of sending a young person to an observation and socio - educational treatment centre. As a permanent advisor to the judges, SEAT has to co-ordinate services between the public and private sectors and manage informa­tion concerning socio- educational measures and PALs. SEAT depends on the Departmental Directorate of the Youth Protection Service, and teamwork with the juvenile court judge is very important. Even though the latter has lost the power to organise the type of custodial treatment for sentenced minors and juveniles, the juvenile court judge has exactly the same powers as the JAP in the following cases: suspended sentence of imprisonment with probation, suspension combined with TIG, and TIG.

The re-formed organisation

Caseload

As of lst January 2004 the number of individuals who were either at the pre-trial stage ("suivi pre-sentenciel") or the post-trial phase and supervised or assisted by the SPIP on account of at least one measure was 123,492. On this date the Service was implementing 135,721 probation orders,of which;

· Suspended sentence with probation

· TIG

· Judicial control at request of magistrates

· Adjournment with probation

During 2003, the Service undertook 42,900 interventions, of which 23,957 were inqui­ries according to Article D. 49.1 (the JAP has the power to order semi-liberty, conditional relea­se or prison work undertaken outside the prison under the supervision of the prison administ­ration ("placement a l' exterieur") as part of any prison sentence up to a maximum of 12 months). These inquiries focus on the verification of the financial, familial and social situation of the offender; the Service task is to suggest in each case the best treatment plan to ensure social inte­gration. The Service also undertook 8,330 fast-track investigations at the request of the Prosecution Office or the investigating magistrate; 4,011 enquiries were made in preparation for conditional release projects.

Staffing

SPIP is under the administrative authority of the Regional Directors of the Prison Administration ("Direction Regionale", RD) (D. 572 C.C.E). The decentralised services comprise 9 regional directorates. In addition there are: an Overseas Mission for the Prison Service; a National School for the Prison Administration ("Ecole Nationale dAdministration Penitentiare ; ENAP); 188 penal establishments and one national health centre based at Fresnes prison ("E eta­blissement public de sante national de Fresnes ", EPSNF) and 101 SPIPs. The latter have the power to undertake their responsibilities within the administrative districts of the "Departements" 10.

As of 2004, there are 136 operational mixed units, 24 dedicated operational units linked to several pentitentiaries and 34 operational units dedicated units linked to judical jurisdictions.

Each RD covers several administrative regions, and each region comprises several Departements 0 (100 Departments altogether). According to the actual state of service reform, a SPIP is imple­mented in each of the Departments; the different DSPIPs depend on the authority of each of the 9 RDs. The Directorate of the Prison Administration (central administration) comprises several sub-directorates and offices. While all these sub-directorates and offices are involved in the Probation Service system to a greater or lesser extent, it is also worth considering the role of the sub-directorate of PPMJ with its office of social and "insertion" politics, the office of employment and professional training, and the sub-directorate of the organisation of the decentralised servi­ces.

Professional training

The professional training of Prison Administration staff is undertaken, on the one hand, by ENAP - responsible for initial professional training as well as continuing training at a national level. On the other hand, a decentralised training structure also carries out continuing training. The appointment of education and probation staff is done on the basis of a national competiti­ve examination and a psychological examination. The majority of those who participate in the competitive examination come from university social science departments, regional Social Work Institutes, the social science departments of the university Institutes of Technology etc. Continuing training, and skills and development training is also organised.

Public Health Service

The organisation of medical services and treatment within the prison system falls to the Public Health Service (law of January 18th 1994). The penal establishments that are part of "program­me 13,000"i1 are the exception; in their case the work is done by 21 medical teams from the pri­vate sector. Today every penal establishment, through protocol arrangements, is connected to local public health facilities. The hospitals that provide general treatment have set up in each of the 149 penal establishments a unit for medical consultation and treatment ("Unite de consulta­tion et des soins ambulatoires", UCSA). The public hospitals have been able to provide psychologi­cal treatment since 1986. Teams within the Department of General Psychiatry provide peripate­tic treatment (125 Departments in 1998) and the Regional Psychiatric Services (SMPR) offer more diversified treatment (26 SMPR in the penal system cover the whole of the prison popu­lation).

Social Services and Voluntary Sector

Since the creation of the National Centre for the Cure of Alcoholism in 1958, many private orga­nisations, e.g. Croix Bleue, Croix d' Or, and other organisations fighting drug and alcohol abuse, work together. Private organisations, e.g. the Patronage de St. Leonard in Couzon au Mont d' Or (for men), and L oeuvre de St.e - Marie Madeleine at Ferte Vidame (for women) per­form very important work with conditionally released and ex-offenders. Social housing centres and other centres providing accommodation facilities are also important. Their legal basis is to be found in the decrees of November 29th, 1953 and September 2nd 1964 (Article 185 Social Welfare Code). According to the latter, "released offenders who are either exposed to the risk of prostitution or effectively prostitute themselves, may be placed, at their request, in the private or public housing centres". The President of the Aide Sociale that meets the cost of these meas­ures (entirely or in part) decides admission to these centres. The released offenders who are admitted to these centres must work within the centres or in the general community: they con­tribute personally to financial costs, either through their work or accommodation payments. They are subjected to medical and psychological examination while at the centre. Many of these associations and organisations are charitable bodies; the Salvation Army is strongly involved in running the centres. All of them help the offender by providing financial help, work and / or hostel accommodation.

The structure of crime prevention and local justice

Within this context, one of the most important objectives for Probation is the development of a strategy which combines CP with alternative models of conflict resolution, i. e. measures that are not formally part of the criminal justice system and do not involve traditional prosecution sche­mes.

The cross-ministry Security Council and the Government's Delegation of the Cities ("Delegation Interministérielle a la ville"), the Departmental and Communal Councils of CP are each responsi­ble for the co-ordination and performance of the security plans and strategies according to the different levels of their administration. Each of them participates in the development of what is called the security policy, based on safety plans and contracts: Local security plans, (PLS) and local security contracts, (CLS); departmental security plans, (PDS) and departmental CP plans, (PDPD). All these schemes are based on the network between the Prefects, the Majors, the Prosecutors, and the police, the national education and voluntary sector.

The following structures are worth mentioning:

Social and educational judicial supervision ("contrôle judiciaire socio-educatif").

Ninety seven associations, recognised by the Ministry of justice, work within the 130 TGIs ("Tribunaux de Grande Instance"), i.e. the trial courts of general jurisdiction. In 1996 these asso­ciations undertook 78% of all judicial supervision measures. The prison administration is also mandated to undertake supervision.

Citizens' access to justice, and information on law and justice

In addition to a number of schemes for court / trial assistance, used in 1997 by 710,000 indivi­duals, the Departmental Councils for access to law/ justice ("Conseils Departementaux d'acces au droit'; CDAD) were implemented by the act of 18th December 1998 ("loi relative a l'acces au droit et a la resolution amiable des conflits"). Their targets are: consulting and assisting during the pre­trial stage, providing alternative schemes for conflict resolution, providing information related to problems of justice and law to local people involved in community safety, the prosecutors and magistrates, as well as citizens.

Development of alternatives to traditional prosecution (100,000 dossiers in 1997) and new con­flict resolution, such as mediation, conciliation and bargaining

The Centres for Justice and Law, MJD ("Maisons de justice et de Droit") developed as a result of the Minister of justice's intervention on access to law and justice (Sorbonne, October 1997), the Villepinte Security Symposium (24th October 1997) and the resultant Circular of 28th October 1997, that formalised the structure. The Inter-ministerial Council on Inner Security (8th June 1998) led to the Reform Bill for alternatives to traditional prosecution and the above­mentioned law of 18th December 1998. As a result of the latter, the MJD received judicial sta­tus; they work under the administrative authority of the Presidents of the TGIs ("Tribunaux de Grande Instance"). By March 1999, 34 MJD were functioning; the implementation of a further 41 MJD is planned. The MJD has three principal aims: to develop/organise alternative schemes, such as mediation, reparation, conciliation, transaction; to develop access to justice and law, especially support for victims; to inform community safety workers, prosecutors and magistrates, and citizens about any problems with the work or organisation of the justice system. The MJD is the most important point for collaboration between the criminal justice, private associations, and the Victims' Protection Service.

IV
Probation work in different stages of the criminal justice process

In order to describe the system at work in the three stages of the criminal justice process, it is worth summarising the main principles governing French criminal procedure.

The preliminary phase, also called the phase de police, begins with initial investigations con­ducted by the police under the authority of the Public Prosecutor's Office. This is the first part of the pre-trial stage. It ends with the Public's Prosecutor's decision, either to dismiss or to prosecute the case. If the case is to be prosecuted, the investigative stage of the criminal justice pro­cess begins ("phase d'instruction"). This is the second part of the pre-trial stage. Due to French tradition, prosecution is differentiated from investigation. The investigation is conducted by the special investigating magistrate (juge d'instruction") who is entrusted with research into and col­lection of the evidence. The prosecution is conducted by the Public Prosecutor. Investigation is obligatory for crimes; it is optional for misdemeanours. It is optional for minor violations of the law ("contraventions"); it is obligatory in the case of contraventions de 5me classe against minors (see description of tripartite, Chapter 2).

This stage ends with the closing of the investigation. The decisions of the investigating magi­strate during this phase (also called lst degree investigation) can be the subject of appeal.

The chambre d' accusation (2nd degree investigation) is the court of appeal. However, it also has the power to investigate crimes, by virtue of a special order that transfers authority from the investigating magistrate to the Prosecutor's Office. When the 1 st and 2nd stages of investigation are complete, the sentencing phase begins. This is the trial stage. The post-trial stage occurs when the sanction is implemented and the offender is re-integrated into society.

There is a distinction between general and special courts ("Juridictions de droit commun et juri­dictions d'exception"). Amongst the general sentencing courts are the Police Courts ("Tribunaux de police") that sentence the minor violations, the sentencing courts for misdemeanours, and the Criminal Courts (Cours d' Assises") that sentence crimes. The Court of Appeal is the "Chambre criminelle de la Cour de Cassation".

Amongst the special sentencing courts there are: the Courts for Children and Minors, the sen­tencing courts for offences related to the army and national safety, the Court for political offen­ces ("Haute Cour deJustice"), and the Court for offences committed by the members of the gover­nment ("La Cour de Justice de la Republique").

The special Children's Courts and the juvenile court judge have sentencing powers for crimes, misdemeanours and contraventions de 5 me classe. Other minor violations of the law are sen­tenced within the general sentencing Police Courts. The juvenile court judge is a special magi­strate from the TGI; he/she has the power to undertake the tasks of the investigation judge and the sentencing courts. He/she has sentencing powers in the case of 18 years old minors who com­mit misdemeanours and contraventions de 5 me classe. The Court for Children and Minors comprises three juvenile judges and two assessors who are not magistrates. The Court has sen­tencing power for contraventions de 5 me classe and delits committed by 18 year old minors; its sentencing power is extended to crime committed by 16 year old minors. In addition there is the juvenile Courts for crimes ("Cour d' assises des mineurs"), i.e. the sentencing court for crimes committed by minors from 16 to 18 years of age and by adults who are accomplices or co-def­endants.

In contrast to the juvenile judge, the Court has the power to decide probation measures, e.g. remission of penalty, dismissal of charges, socio- educational measures, and supervision in the community. Appeal can be lodged against the sentences of the Police Court, the juvenile judge and the Children's Court; the court of appeal is a special division or chamber of the general Court of Appeal.

PRE TRIAL STAGE

The investigation of the case and the examination of suspects sometimes result in the imple­mentation of short periods of detention, judicial supervision and control orders. There are three different kinds of restriction of liberty at this stage: police detention ("garde a vue"), judicial supervision ("controle judiciaire") and temporary detention (`detention provisoire"). The legal con­ditions underlying their application are different for each scheme.

With the introduction of the Law reinforcing presumption on innocence and victim’s rights (Law 2000-516 of June 15th, 2000), a new judge, (Juge des libertés et de la détention, JLD) the judge of liberties and detention came into being. This is the result of seperation of the investigative work of the investigating magistrate and his former responsability for temporary detention mesures. This is now the function of the JLD though the investigating magistrate must also approve temporary detention, both for minors and adults. This has actually increased temporary detention.

A further development in the pre trial stage was the introduction of a French form of plea bargaining, called “Plaider coupable, Comparution sur reconnaissance préalable de culpabilité’ included in the 2004 Perben II law. By this procedure, a trial is avoided, thus reducing trial costs, case overloads and similar problems. However, several recent 2005 higher court rulings have found several elements of this new procedure to be illegal and minor changes will be made regarding thid procedure.

The system in action and the Service at work

Probation is a function of criminal policy and has three objectives, i.e.

· promote social rehabilitation

· reduce prison overcrowding through the use of PALs

· develop crime prevention and local justice, including alternatives to traditional prosecution and conflict resolution.

Apart from the measures used for juveniles, probation work and mediation schemes applied in the pre-trial stage are not aimed at social change and rehabilitation. During this stage the role of probation is as set out in the last two points, above. Judicial supervision is the exception, because it seeks not only to prevent recidivism but also to bring about rehabilitation and social integration; this measure applies to juveniles as well as to adults.

• During this stage, SPIP supervises the implementation of judicial control, undertakes investi­gations and preliminary enquiry reports, and contributes to crime prevention through partici­pation in the various community safety councils. Youth Protection contributes to the develop­ment of legislation for minors. The appearances of the three probation objectives during this stage are the following.

• Probation as social rehabilitation: (Ordinance of February 2d,1945 - modified several times). In addition to social enquiry work, it is worth underlining that Youth Protection intervention is obligatory if the juvenile judge or the investigating magistrate decides to make the young pers­on subject to pre-trial detention. This decision needs the advice of Youth Protection; the imple­mentation of the measure depends on the Service's preliminary assessment. The juvenile judge or the investigating magistrate has the power to order several, temporary measures, many of which are reminiscent of those education measures, implemented after sentence. These can return the juvenile and place them under the authority of their parents or a tutor; place them in a Childcare Services reception centre ("Service d'Assistance d l' Enfance") or a centre for medi­cal treatment, education or professional training (private or public). If a period of observation is necessary in order to ensure that rehabilitation will be successful, the young person can be placed in a special observation centre or made subject to supervised observation in the commu­nity ("liberte surveillee d'observation"). The young person can also be made subject to a special regime of supervision in the community combined with a probation period (Article 8 - 8, 1945 Ordinance). This measure is ordered by the juvenile judge before sentence according to the merits of the case.

In addition there is a special procedure instigated by the Prosecutors (Article 5, 1945 Ordinance): This stands in contrast to penal mediation, which aims to keep offenders out of the system through using alternatives to criminal prosecution and custody, e.g. bargaining (Act of January 1993 that completes article 44 of the PPC by adding a new section). Mediation-repara­tion (article 118 of the January 1993 act, completing article 12-1 of the 1945 Ordinance) is a scheme that is used essentially for young people and is underpinned by the idea of rehabilita­tion and the prevention of recidivism. Mediation and reparation is proposed by the Prosecutor before the prosecution process begins. The measure can also be ordered by the investigating magistrate or by the sentencing judge. In contrast to penal mediation, which is focused on repa­ration to the victim, mediation-reparation involves both victim reparation and community ser­vice. Concerning adult offenders, the most important probation activities during the pre-trial phase are those outlined in Chapter 2 - the SPIN consultation and social investigation respon­sibilities.

• Probation as CP, alternative prosecution and conflict resolution: As previously mentioned, all other probation activities applied to young people and adults during the pre-trial phase are not underpinned by the concept of rehabilitation. This does not mean that rehabilitation as an aim is not part of those activities related to CP and local justice. This is particularly true for several activities related to the implementation of local community safety contracts (Chapter 3). Social mediation is very important, in addition to penal mediation. As a strategy for alternative con­flict resolution, social mediation is performed in accordance with NP and justice de proximity, or MJDs, and similar schemes like the Community workers for social mediation, or AMLS (Agents locaux de mediation sociale"),12 whose role is to develop local community safety through the use of mediation. They are most important organisations; the focus of intervention and the responsibilities of these social workers are stated in the CLS.

All these initiatives and alternatives prosecution schemes, e.g. the potential for the Prosecutor to close the case after a reminder of the law (possibly combined with internment in a medical or social/ educational centre) or to decide that the offender whose offence is punishable with imp­risonment for a period of less than three months, has to pay the victim a maximum of 1,524 Euro , or give them any gains from the offence etc, were addressed recently by two pieces of legislation:

1) Act of 18th December 1998 ("loi relative d l' acces au droit et d la resolution amiable des conflits")

2) The Reform Bill, that makes provision for alternatives to traditional prosecution and the development of more efficient criminal procedure ("Projet de loi relatif aux alternatives aux poursuites et renforcant l' efficacite de la procedure penale").

Due to the Code de la famille et de 1' aide sociale, or CFAS, a scheme that combines special prevention with social re-adaptation within the family receives the status of a real public service. Article 45 of the CFAS states: "In those areas that are exposed to a risk of social problems, the Department participates in the organisation and implementation of activities that aim to pre­vent social disintegration and to develop social harmony or the social promotion of young peop­le and their families. These activities include special prevention strategies for young people and minors, as well as for those families running the risk of fragmentation (in social terms)".

Other schemes essentially aim to prevent recidivism. The socio-educational assistance and supervision (the law of 17th June 1998, mentioned in Chapter 1) applied to those who have committed sexual offences on minors, can include a condition that the offender follow medical treatment. Treatment can only be ordered after the preparation of a preliminary psychiatric report. This report is required before treatment can be decided (Article 706 - 46 CPP). The report is ordered by the Prosecutor during the investigation phase, or by the judge at the begin­ning of the preliminary investigation.

Victims' support and protection: There are actually 150 Services running in France, belonging to the voluntary and private sector or to Local Community administrations. Most of them are grouped together within the National Institute of Victims' Support and Mediation, or INAVEM ("Institut national d' aide aux victimes et de mediation"). The Service has the following aims: to recei­ve and consult with any person who considers themselves to be the victim of an offence; to pro­pose solutions to any kind of difficulties, e.g. mental problems, isolation; to inform victims about their rights and their chance to access justice; to help them to contact and consult psychologists or other medical services, and to have medical reports prepared. However, the Service neither represents victims in the justice system, nor participates within the criminal justice process.

TRIAL STAGE

During this phase, the SPIP is generally not requested to intervene. Sometimes, however, Service staff will be present to provide the sentencing court with more detailed information about the defendant's background.

Principles governing the sentencing process: The courts are not bound by the charges; this means that they have power to re-qualify the nature of the offence that the offender was accu­sed of having committed. The sentence is based on the circumstances of the case and can inclu­de: deferment of the pronouncement of penalty; total or partial dismissal of penalty ("dispense de peine"), exemption from penalty ("exemption de peine"), release, and finally condemnation, i.e. the implementation of the penalty for which the offender has been sentenced.

Lawyers and victims: As part of the judicial reform process, the role of lawyers has increased in importance. Their new responsibilities and extended powers in the pre-trial, trial and post-trial stages go hand in hand with the activities of victims and victims' associations. The latter take an increasing part in the various stages of the trial process. The Circular of 13th July 1998 defines the general rules for the care and support of victims. The services of the judicial Court and Trial Assistant (Aide juridictionnelle") are also very important. This service aims to help poor people to pay their court costs. It works in collaboration with the service that provides information related to the problems of law and justice and access to justice. Together these services form the judicial Support Service (Aide Judiciaire")

Probation at work: As previously stated, several legal provisions concerning probation for young people enable the magistrate to order measures during the sentencing stage. If mediation and reparation is not proposed during the pre-trial stage, the juvenile courts and the sentencing courts can decide to use it at this point. Similar powers are given to the Children's Court (Article 15, Ordinance 1945, the law of February 8th 1995). Article 8.8, Ordinance 1945, gave far-reaching powers to the juvenile judge. If the offender is convicted, the judge can order several measures: from total and partial dismissal of charges to judicial supervision, supervised in the community or in a special establishment for socio-educational and / or medical treatment. Similar powers are given to the Children's Court (article 15, Ordinance 1945).

Furthermore, there are several schemes for the dismissal of charges and remission of penalty that are applied to convicted offenders. Most of them have been previously mentioned, e.g. dismis­sal of ("dispense de peine" - article 132 - 58 NCP) and the early termination of the socio-edu­cational measures applied to minors (articles 8 - 10, Ordinance 1945). In the first case this deci­sion is taken by the sentencing court and in the second, by the juvenile judge; in both cases this only happens after the offender has been found guilty. The offender can ask the withdrawal of the deprival of the exercise of certain civil rights; this can occur during the sentencing stage or prior to this stage.

POST TRIAL STAGE

The work of the Probation Service is outlined in its aims. A detailed description of the latter is given in Chapter 2, however, a brief overview of the Service's main points of intervention may be usefully considered. There are 3 regimes:

1. The milieu convert or semi- convert is the transitional regime between imprisonment and supervision in the community, or sentences served entirely in the community. It aims to pre­vent the negative consequences of long-term imprisonment and to improve life after relea­se. The most important methods of implementation in this regime are:

· detention in a open prison ("etablissement ouvert")

· placement outside the prison (`placement d l'exterieur")

· semi-liberty. With this measure, the offender may spend part of the day outside prison for purposes of work, education or other activities that contribute to their reintegration into society.

2. The milieu libre refers to the total or partial implementation of a penalty involving a res­ triction of liberty, without either detention or imprisonment. It covers:

· suspension of the enforcement of the penalty, combined with probation ("sursis avec mise à l'epreuve")

· suspension of the pronouncement of conviction, combined with probation ("ajournement avec mise à l'épreuve")

· TIG

· conditional release

· excluding a person from specified locations

· electronically supervised home arrest.

3. The milieu ferme refers to the various prison regimes: imprisonment in the “maisons d'ar­ret", "maisons centrale" or "centres de detention".

There is another important area of intervention for the Service. As already mentioned in Chapter I, the Act of June 17th, 1998, aims to prevent recidivism in sex offenders, through the creation of a post-sentence socio-educational support and care regime (Article 221 - 9 - 1 and 222 - 48 - I and 227 - 31 PC). Even if this measure has been put in place to start on release, it can also be applied during the prison sentence. The initiative is taken by the sentencing court; the offender is made subject to measures that provide support and supervision, combined with a probationary period (Article 132- 44 - 132 - 64 CP). The supervision is implemented under the control of the JAP or SPIP. The JAP has the power to change the conditions to which the offen­der is made subject and /or to add other conditions; even if the court initially had not provided for medical treatment, the JAP can decide that it will be undertaken during the implementation of supervision. The Act completes these obligations by adding three new ones (Article 131- 36­2, 1- 3), i.e. exclusion from specified locations, in particular those locations where young peop­le get together; being prohibited from meeting specified persons; being prohibited from under­taking a professional or voluntary activity that makes it easy to meet minors and to get in con­tact with them.

As mentioned already, the sentencing court decides the duration of the measure; it cannot be longer than 10 years for misdemeanours and 20 years for crimes. The convicted offender can make a request of the court for total or partial remission of this penalty; this is decided in accor­dance with a psychiatric report. A breach of conditions is sanctioned by imprisonment. The sche­me is also applicable to young people; the juvenile judge and Youth Protection have the powers and responsibilities of JAPs and SPIPs in this respect. If the scheme is applied in combination with a prison sentence, then the initiative commences only on release from prison. Apart from this general rule, the suivi socio-educatif can also be applied during the suspension or the frag­mentation of the penalty, placement in the community without supervision, or during semi­liberty.

Amnesty

This is applicable either before sentencing or afterwards. Pre-sentence it puts an end to the pro­secution process; post-sentence it leads to the penalty being quashed. Amnesty is applied either by virtue of special laws and decrees (Article 34 of the French Constitution) or by a decision of the President of the Republic. Sometimes, the measure depends on a judge's decision. The laws and decrees of amnesty provide for the rules that govern each amnesty; frequently these rules contain special conditions, e.g. payment of a fine. The legal basis of amnesty is enclosed in the New PC (Articles 133 - 9, 10 and 11).

There are three amnesty schemes:

Amnesty applied after or within situations of social and political struggle, e.g. the amnesty put in place after the end of World War II, the Algerian war, the political struggles of 1968.

Amnesty applied as an instrument to make up a legal deficit e.g. a legal disposition that pro­vides for a penalty which public opinion no longer understands. Examples of the latter inclu­de the law of 15th January 1990, where amnesty was provided for offences related to the financial support of political parties, and the law of 19th January 1991, where amnesty was applied to customs officers who helped the Prosecution by committing offences related to drug trafficking. This type of amnesty has been applied more recently.

Amnesty applied by the President.

There are three types of amnesty:

· amnesty applied to offences ("amnesty reelle")

· amnesty applied to offenders and particular types of offenders ("amnesty personnelle")

· amnesty as a combination of these two cases ("amnesty mixte").

Amnesty developed from the first the other two; amnesty applied to offences, i.e. the tradition­al scheme, has lost its importance.

The consequences of amnesty:

· Pre - sentence: In the case of multiple offences, amnesty applies to all offences if it is applied to the most dangerous amongst them (except from offences that are excluded by the law of amnesty)

· Post - sentence: The penalty is quashed and sentence is struck from the criminal record. As the result of this, suspension comes into play

· If amnesty comes into play within the period of the implementation of the penalty, it also applies to safety measures, e.g. suspension of the driving permit, closing of the stock-in­trade, confiscation. This new situation is due to the 1995 law of amnesty. The situation befo­re was that amnesty did not apply to measures of safety (except that the law provided for amnesty being applied to a particular measure of safety).

· Amnesty, however, does not result in the refund of a paid fine

Pardon

A pardon applies to offenders not to offences. It results from a decision taken by the President of the Republic (article 17 of the Constitution). In general, pardon ("grdce") comes into play if the penalty is too severe. It leads to a partial or total remission of the penalty. A special medical pardon ("grace medicale") also exists; the penalty of medical treatment is quashed.

V
Finances, Accounting, Registration Systems and Evaluation Procedures, Societal Support and Clients' Views

To detail the finances of all institutions, offices, private and public associations involved in pro­viding Probation services in the broadest sense, would be an enormous task. Moreover, it is not possible to detail the finances of each SPIE For these reasons an overview of the finances of the Penitentiary System will be provided.

The Penitentiary Administration and Justice Budget13

The budget for these services is part of the Penitentiary Administration's budget (PA).

The PAs 1999 budget allocation was 1,131,320,000 Euro, a 5. 79 % increase on its 1998 budget. Between 1995 and 1999, the PA s budget allocation was increased by 17. 21 % and justice's budget allocation by 18.64 %. Between 2003 and 2004, the budget increase is 7,7%. Overall the PA budget is 30,4% of the Ministry of Justice budget for 2004. The budget increase since has risen but the major increase is not staffing but equipment due to new installations.

The PA’s 2004 budget in euros is allocated as follows:

Staffing

(52,19 %)

838,328,890

Organisation

(28,84%)

463,798,205 EEURO Euro

Equipment

(10,8%)

173,615,000

Interventions

(0.38%)

6,041,175

Accounting system

In 1999 a new accountancy system was put in place enabling SPIN to undertake their own accounting, i.e. through a specially appointed in-service manager. The legal basis of the new accounting system is a special decree called decree portant organisation des services comptables et financiers des SPIP The decree authorises the creation of state owned/ controlled companies ("regies"). Two further decrees define the functioning of their accounting systems.

SPIP has responsibility for rehabilitation expenses. The DSPIP (SPIP's Director) is mandated by the DRSP (Director of the regional prison administration) to authorise SPIP's expenses and to register its receipts. He/she undertakes this task within SPIP's Head office and SPIP's decentra­lised units. A substitute (temporary) Director, Service Chief or social worker, can be designated head of the office. The registration of expenses and receipts is formalised by means of written documentation, which must specify the nature of various operations (loans, credits etc.). The Chief of the DRSP's Accounts Department is responsible for SPIP's expenses, in particular those that result from the Service's new responsibilities.

In the past each CPAL had its own registration system. Data was collected in biannual and annu­al reports. These report were communicated to the Penitentary Administration, PA (Administration Penitentiaire"), and after analysis and evaluation of the information, the PA pre­pared the final statistical report on probationers, probation measures and demographic trends. This activity is ongoing; the results are published once a year, or more frequently in special reports such as "Infostat justice", the annual statistical report of the PA. Quantitative and quali­tative evaluation of probation work, orders, measures etc. is published in special Penitentiary Administration research reports.

One of the most recent and important reports to be published is that of M. Guillonneau and A. Kensey ("Mesures et sanctions d' interet general en France", Ministery of Justice Direction of the Penitentiary Administration 1998). Research documents are also available from National or University Research Institutes, e.g. CNRS - CESDIP, "Centre National de la Recherche Scientifique - Centre de Recherches Sociologiques sur le Droit et le institutions penales", "Equipe De Recherche Sur La Politique Criminelle" of the "Centre de Recherche sur la politique crimi­nelle" (published in the "Revue Archives de politique criminelle"), the Institute of Criminal Sciences of the University of Poitiers, and finally research projects sponsored and initiated by the Ministry of justice (see bibliography, Chapter 7). In the past, essential research was undertaken at the Vaucresson Centre. Comparative evaluation and European statistics are available from CNRS - CESDIP S. Pace provides extensive information and the empirical research of E Tournier is also worth consideration.

More recent, extensive and highly critical is the report by Jean-Luc Warsmann (‘Les peines alternatives à la détention, les modalités d’exécution des courtes peines, la préparation des détenus à la sortie de prison, Rapport de la mission parlementaire auprès de Dominique Perben, Garde des Sceaux, Ministre de la Justice, confiée à Jean-Luc Warsmann, député des Ardennes’), April 28th, 2003. This report gives a detailed and critical overview of alternative sentencing and probation, with stress on quicker sentencing, effective sanctions and increased means for the Penitentiary Administration. Several points have been incorporated in the new Perben II laws (‘Loi portant adaptation de la justice aux évolutions de la criminalité, loi 2004-204) Law adapting justice to new developments of crime, of March 9th, 2004.

Both society's views about probation and the views of probationers' themselves have been the subject of evaluation and analysis. Several of the most important of these have already been mentioned in preceding chapters. More details are available in a number of significant research studies, most of them undertaken in the1980s, which took a critical approach to probation in general and to TIG in particular. The following represent the most significant findings:

· Wyvekens' study ('justice penale et environnement local. Le milieu ouvert et L insertion locale des juridictions", in Archives de politique criminelle" Nr. 18, 1996, p.47) shows us how the various social players perceived one other, their tasks and the work of the CPALs.

· Research undertaken by N. Boucher, L. Cirba, J. Faget, A. Kensey, M- Tomic - Malic and E.Tournier provides a valuable evaluation of community service. The latter can be seen in aspecial Ministry of justice research report, published in 1994 (See Bibliography).

· The Journal "Actes" no. 73, December 1990, contains several critical analyses and evalu­ ations about the implementation of probation measures.

· The "rapport de synthese du groupe du travail sur le TIG", published in 1987 (Director of Research, J. Selosse ; rapporteur, N. Boucher) contains information about various viewpoints and the nature of perception. More recent research on this subject is documented in A. Wyvekens' book: "h insertion locale de la justice penale" (Paris 1997), which gives a detailed overview and analysis of the most important surveys about clients' views and public opinion about probation.

· A detailed research report about community service can be found in: A.M. van Kalmthout, EJ.P Tak, Sanctions-systems in the member-states of the council of Europe - Part 1, p. 71­147, Deventer/Arnhem 1988.

· In the past, several studies and research undertaken by C. Faugeron and P Robert have con­tained detailed information of both public opinion about the criminal justice system and sen­tencing practice, e.g. "La justice penale et son public. Les representations sociales du systeme penal" (Paris et Geneva, Medecine et Hygiene 1978) and "Les attitudes des juges a propos des prises et decision" (Paris SEPC 1972).

· The JAPs' opinions are documented in the "Revue de l' Application des Peines" (RAP is edited by the ANJAP, Annexe du Palais de Justice - 24 rue du Moulin a Vent - 86020 Poitiers Cedex).

V1
Probation Clients' Rights

The probationer, like any other suspect or convicted offender, is protected by the basic rules that govern the criminal justice and prison systems.

The practical consequences of the inherent right to rehabilitation

The Right to refuse TIG: While TIG is an integral part of the rehabilitation process, the French legal system does not expressly make provision for the special right to rehabilitation. However, in some cases the latter does exist in reality; this can be said in particular of the Ordinance of 1945. With regard to TIG, the right to rehabilitation exists, albeit tendentiously. The reason being that the probationer does not really have the right to consent to the order, only to refuse it. This means that TIG is less a result of real and free consent, i.e. a proper contract between the probationer and the State, but rather a result of a decision that is imposed on the probatio­ner. As a result of this, some law teachers argue that the right to refuse TIG results less from the idea of or the right to rehabilitation, and owes more to Article 4 of the European Convention of Human Rights and Article 8 of the New York Convention that provide for the prohibition of for­ced labour.

The situation concerning prison work is similar, in that the sentenced prisoner cannot be for­ced to undertake work in prison. According to Article 720 PPC, working in prison is optional and is offered to those prisoners who requests it. The rights of the sentenced person are quite different in each case.

The following rights derive from TIG as an independent penalty i.e. TIG as a principal penalty of substitution or as a complementary penalty): TIG is subject to the rules of the Code de travail, especially those concerning night work, hygiene, safety, and work for women (Article 131 - 23 PC). The individual subject to TIG is not paid for their work. The State is responsible for any damages caused by the person subject to TIG during their work, if the damage results directly from the implementation of the order (Article 131 - 24 PC). The same protective rules apply to young people, but in contrast to TIG for adults, the community activity must have a rehabilitative aim.

Working in prison: In contrast to those subject to TIG, the prisoner who undertakes work in prison is not protected by the Code de travail and, in all honesty, is not protected. The reason is that Article 720 - 3 PPC does not recognise the prison worker as a salaried wor­ker; their pay is "a tarif de main d' oeuvre", which is generally defined by reference to the indexed minimum wage (SMIC). For a long time there was no social protection for prisoners working in prison and even now it is embryonic. In accordance with Article D 109, the working conditions in prison are defined by the legislative and administrative rules that govern security and hygie­ne in industrial establishments. All trade union activities are forbidden and the Decree of 2nd April 1996 (organising prison reform) provides for a very restrictive approach to any demonst­ration. However, prisoners that undertake work in prison are similar to those workers in the community in that they are eligible for Social Security protection, and they also receive family allowances. If the work is undertaken within the „work contract"-regime (,,concession") the agent is obliged to pay a partial indemnity against unemployment; but prisoners working within a state controlled company ("regie") have no social protection against unemployment and layoffs. This means that they cannot be registered as unemployed and thus be entitled to unemployment benefits. A new development is increasing cutback in work available in prisons. This is due to the fact that even with very low wages, compagnies are using even cheaper labour in developping countries. As a result, there has been a severe cut in contracts with prisons.

The right to claim rehabilitation in court: With an inherent right to rehabilitation, the proba­tioner can claim this right in court and ask the judge to recognise it. The right to rehabilitation can be claimed even before the penalty or the probation order comes to an end. The right to lodge an appeal against the decision that defines the implementation of the sanction follows from the same right to rehabilitation. Apart from the cases already stated and in contrast to amnesty, which is only the manifestation of pardon, discharge ("rehabilitation") and early termi­nation of the implementation of the sentence presuppose rehabilitation. Four cases can be dis­tinguished:

1. Legal discharge after the implementation of the sanction ("rehabilitation légale de plein droit")

2. Discharge during the implementation of the sanction: In this case rehabilitation implies eit­her a) total or partial withdrawal of the consequences and effects of the sentence or b) withd­rawal of interdicts, declining civil rights etc. and/or the expunging of the sentence from poli­ce records.

3. Early termination of the implementation of the sentence:

4. Discharge at the point of sentence: The offender has the right to claim exemption from the implementation of the penalty during the sentence or even beforehand. He/she can also claim the immediate withdrawal of interdicts and decline their rights.

VII
New Developments

Probation will increasingly become an integral part of the new concept of social control. According to the motto of current French criminal justice and policy, every offence must have a response that is clear, appropriate and understood by the public. Therefore, probation is seen as a broad concept - of organisations, responses and strategies - that are no longer determined by and based on an antagonistic structure that traditionally focuses on the opposition of repression and prevention, control and socio-educational measures, criminal and civil justice, offenders and victims. Central and Local Government are now the funders and energisers of community safe­ty policy and crime prevention. From this viewpoint probation can be considered the mirror that reflects the new synergy.

Traditional and alternative approaches to prosecution, mediation and imprisonment go hand in hand. Probationers' rights will be reinforced and harmonised with the increase in victims' rights. As a result of the New PC and case management, the aims of rehabilitation and social re­education will be collectively received. Social control will develop into a more open system; measures and strategies will take their place with equal footing, each of them being systemati­cally applied to specific cases and target groups. Probation is now synonymous with a social con­trol system (formal and informal) that is open to empiricism, to scientific and technological dimensions.

It should be noted, however, that in the past two-three years, several new developments indicate a trend towards harsher sentencing measures based on political debates on the part of the right in French parlement. Already the new Perben laws indicate this trend. Shortly after the introduction of the Perben II law in March 2004, a parlementary proposal was issued in October 2004 regarding recidivism (Proposition de Loi relative au traitement de la récidive des infractions pénales, présentée par MM. Pascal Clément et Gérard Léonard, Députés, N°1961, Assemblée Nationale, le 1er décembre 2004).

The proposal, by Mr.Pascal Clement and Gérard Léonard propose among other measures, limiting the possibilty of probation and reinforcing the staffing of the SPIP. This last point is significant because in the Warsmann report, page 65, staffing of the SPIP was already qualified as chronically under staffed, with case loads of 100 per I and over.

Another issue, developed in the Warsmann, 2003, report as well as the Clement-Léonard, 2004, proposal is increased mandatory use of electronic supervision (PSE) which in practice will become a new form of pre and post trial sanction rather than an alternative. This change in philosophy of use the PSE is sharply critized in the National Bar Consul (Conseil National des Barraux) report of December 11th, 2004.

The Warsmann report also recommends a significant increase in SPIP staffing with the creation of probation agents (3,000 agents, proposition n°83) who would monitor the PSE program, check employment, housing and other facilities of those under probation.

One last point of interest in the Warsmann report is development of partnerships with universities to establish evaluation programs badly needed by the judicial administration concerning the various programs and their effects, short and long term.

VIII
Main addresses, Phone & Fax Numbers, E-mail addresses,

Home Pages and Relevant Publications

Direction de 1' Administration Penitentiaries

113, Place Vendôme,

75042 - Paris CEDEX 01

Tel: 01 44 77 60 60 (Ministry switchboard)

8/10, Rue du Renard,

7504 Paris

Tel: 01 49 96 + 28 82 (E Azibert, Director), 28 29 (E. Rebeille - Borgella Assistant Director); 26 32 (Chief of the Probation and Rehabilitation Office); 28 12 (Chief of the Office of International Relations - SCERI); 26 12 (Sub - Directory of Research and Evaluation).

CLCJ (Comite de liaison des associations de controle judiciaire)

23, Rue Desfourniel,

BP 38 - 33023 Bordeaux CEDEX

Tel: 05 56 99 29 24 Fax: 05 56 99 49 65

INAVEM (Institut National d' Aide aux Victimes et de Mediation)

4 - 14, Rue Ferrus, 75014 Paris

Tel: 01 45 88 19 00 Fax: 01 45 88 94 02

RELEVANT PUBLICATIONS

All relevant information, annual and regular Ministry publications, e.g.:

INFOSTAT -,JUSTICE, Etudes et Statistiques JUSTICE, Les chiffres - clefs de lAdministration Penitentiaire Les chiffres - clefs de l` Administration Penitentiaire, Courrier de la Chancellerie, "oil Annuel d' Activite de l' Administration Pgnitentiaire, RAP etc are available from:

SCERI (Service de l`Information et de la Documentation du Ministere, 13 Place Vendome, 75 0 42 Paris, Cedex 01 or on the Internet at http:// www justice.gouv.fr

Research undertaken by CNRS / CESDIP is summarised in the publications of the CESDIP:

FRANCE 231 Rapport scientifique 1997 - 1999; 1995 - 1995. CESDIP, Immeuble Edison; 43 Boulevard Vauban. F.­7280 Guyancourt. Tel. 33 (0) 1 34 52 17 00.

RELEVENT RESEARCH

Research:

1) V, Lagandre Projet de these: Suivi, en milieu ouvert, des populations condamnees par la jus­tice penale et pecarite socio- economique et sanitaire

2) A.-M. Favard & V. Moulin I: execution par 1' administration penitentiaire des mesures de milieu ouvert. rapport intermediaire Sept. 1998

3) A. Chauvennet, F Orlic, C. Mouhannna & C. Gorgeon Contraintes et possibles: les prati­ques d' execution des mesures en milieu ouvert. rapport intermediaire Oct. 1998.

4) R. Ottenhoff et al Suivi de cohorte (1999/ 2000)

Social Sciences Research:

1) C. Burricand & C. Hatal Sursis avec mise a I' epreuve, Travail d' interet general. Rapport d' etude. Ministere de La Justice Decembre 1997. Dix ans de peines de probation. INFOSTAT 49, Oct. 1997

2) J. Faget Le TIG, beaucoup d' espoir..des resultat mitiges. Bulletin du CLCJ no. 1, February 1997

3) J. Faget, L. Cirba, N. Boucher, P. Tournier et al Le Travail General a dix ans. Le resultat en vaut la peine. Etudes et Recherches, Ministere de la justice, March 1994

4) M Guillonneau & A. Kensey Mesures et sanctions d' interet general en France. Ministere de la justice Paris, August 1998

OTHER DOCUMENTS

1) La Libération conditionnelle : Rapport à Madame Le Garde des Sceaux, Ministre de la Justice,Commission de la Libération Conditionnelle, Février 2000, sous la présidence de Daniel Farge, Conseiller à la Cour de Cassation, Président du Comité Consultatif de Libération Conditionnel.

2) Rapport de la mission parlementaire auprès de Dominique Perben, Garde des Sceaux, Ministre de la Justice,confiée à Jean-Luc Warsmann, députée des Ardennes, 28 avril 2003.

3) Rapport au Garde des Sceaux, La Détention provisoire, Edition 2003-2004, Commission de suivi de la détention provisoire, Juin 2004, Ministère de la Justice.

4) Conseil National des Barraux, Rapport sur la proposition de loi sur la récidive adapté par l’Assemblée Générale le 11 Décembre 2004, Daniel Ligier, Commission Libertés et Droits de l’Homme.

5) Direction de l’Administration Pénitentiaire, Les chiffres clés de l’administration pénitentiaire, juillet 2004, Ministère de la Justice.

1. With special thanks to Annie Kensey, Directory of the Prison Adminstration and to Christine Schoubben, SCERI- Documentation, Ministry of Justice, Direction of the Penitentiary Administration.

2. P. Faucher, Quelle probation pour demain?, RAP no. 21 March 1997, p. 9.

3. M. Ancel, La Defense Sociale Nouvelle, un mouvement de politique criminelle humaniste 6me edit. Paris Cuyas.1996 (1 ere edition 1954). Cf. Th. Gilly, Deutsche und franzosische Strafrechtskultur im Kontrast,in: O. Beaud & V Heyen (Ed.), Eine deutsch - franzosische Rechtswissenschaft? Une science juridique franco - allemande?, Nomos Verlagsgesellschaft Baden - Baden 1999, p. 325 - 340, in particular p. 326 - 330.

4. Bonnemaison, Face a la delinquance: prevention, repression, solidarite, Paris. La Documentatio Francaise 1982, C£ IHESI, Guide Pratique.- Contrats locaux de securite. La Documentation fran~aise, Paris 1998; Forum Europeen, Urban Security. Interim Report, Tools for action (Security & Democracy), edited, with the support of the European Union, Paris 1996. - For a detailed ana­lysis of the development of community safety, see amongst others J.- J. Gleizal, Chronique de poli­ce, in: Rev, sc. crim. no 4 1998, p. 841 seq.; S. Roche, Sociologie politique de 1' insecurite. Violences urbaines, inegalites et globalisation. Paris 1998, p. 193 seq.; G. Damon, La politique de la ville. La documentation fran~aise: Problemes politiques et sociaux no 784, 9 mai 1997 Th Gilly, Die franzo­sische Gesetzgebung zur inneren Sicherheit im Lichtre der Loi Pasqua, Kriminologisches journal 3 (1997), p. 186 - 210..

5. M Guillonneau & A. Kensey, Mesures et sanctions d' interet general en France, Ministere de la Justice Paris, Aout 1998, p 3.

6. J. Faget, La bureaucratisation du travail d' Interet General, Actes no. 73, December 1990, p. 23 - 27.

7. A. Wywekens, justice penale et environnement local. Le milieu ouvert et 1' insertion locale des juri­dictions", in: Archives de politique criminelle No. 18, 1996, p. 47.

8. Courrier de la Chancellerie, Minist&e de la justice, May 1999, No. 44, p. 2-9, See also J.-P Jean, Les reformes de la justice, in: La Documentation fran~aise (Ed.), regards sur 1' actualite, no. 248 February 1999. p. 17 - 36.

9. Les chiffres de 1'administration penitentiaire, Oct. 1998 (op. cit.), p.10.

10. The French administrative districts are made up of several levels, i.e. commune, ville, departe­ment, r6gion, Etat.

11. In accordance with "programme 13,000" the construction of 25 new penitentiary establishments was projected from 1987. As of 1998, 21 of them are functioning.

12. Forum Fran~ais pour la Securite Urbaine (with the support of Mission Emploi - Jeunes, the Directorate of the national State Police and the Ministry of Interieur), Profils, Missions et Perspectives des Adents Locaux de Mediation Sociale. Paris Paris 1999.

13. For more details see "Les chiffres cl6s de la justice, October 1998". Ministere de la justice, Sous - Direction de la Statistique, des Etudes et de la Communication.


[1] This is the re-edited, reviewed and actualized version of Gilly, Th., (2000), France in: Anton van Kalmthout and Jack T.M. Derks, eds, “Probation and Probation Systems. A Europeaan Perspective”. Wolf Legal Publishers, Nijmegen, The Netherlands.