Fiches Belges

Under French law, probation measures or alternative sanctions aim at facilitating the social insertion/reinsertion of the sentenced person, improve victim’s and society’s protection and facilitate the application of such measures when the offender does not live in the sentencing State. The certificate mentioning certain elements such as the infraction committed, the measure related to it, the identity of the convicted person and the language used must be transmitted with conviction or probation decision. For a probation measure or alternative sanction to be recognized in France, the convicted person must have a habitual residence, on a regular basis in France. By exception, French authorities can recognize such measure/sanction upon the request of the convicted person. In this case, the convicting State must consult French authorities before sending the certificate. The transmission of the conviction or probation decision is subjected to the consent of the French public prosecutor if the convicted person is a French national – or the Minister of the justice if the offender is not a French national. Mandatory grounds for refusal (art. 764-24 Criminal Code of Procedure): 1° The certificate has not been produced, is incomplete or manifestly does not correspond to the sentence or to the decision and has not been completed or corrected within the fixed deadline; 2° The conditions provided under articles 764-2 to 764-5 have not been met, in particular when, in accordance with subparagraph 2° of article 764-5, the recognition of the sentence or of the probation decision is conditional upon the consent of France and that consent has not been requested or has been refused; 3° The sentencing decision relates to offences for which the convicted person has already been definitively convicted by the French courts or by the courts of a State of the European Union other than the sentencing State, on condition that the sentence has been executed, is in the process of being executed or can no longer be executed according to the law of the State which passed the sentence; 4° The sentence is based on conduct which does not constitute an offence under French law; 5° The offence could have been tried by French courts and the statutory limitation period for the execution of the sentence had expired under French law on the date on which the certificate was received; 6° The sentenced person benefits in France from an immunity which constitutes a bar to the execution of the sentence or of the decision; 7° The person who is the subject of the sentence or the decision was a minor aged under 13 years on the date of the offence(s); 8° The sentenced person did not appear in person at the trial which led to the decision, except in the cases specified in subparagraphs 1° to 3° of article 695-22-1; 9° The sentence passed includes an order for psychiatric or medical care or another type of measure which cannot be executed under the rules of the French legal system or the French health care system. The ground for refusal provided under subparagraph 4° cannot be relied upon when the sentencing decision concerns an offence relating to taxes, duties, customs and foreign currency exchange on the basis that French law does not provide for the same type of taxes or duties or does not contain the same type of regulation in matters of tax, duties, customs or foreign currency exchange as the law of the sentencing State. Optional grounds for refusal (art. 764-25): 1° The length of the alternative sanction or the probation measure is less than six months on the date the certificate is received; 2° The sentence or the decision was made in respect of offences committed wholly, for the most part or in the main on French territory or in a place that is equivalent to French territory; 3° The sentencing decision relates to offences for which the convicted person has already been definitively convicted by a court of a State which is not a Member State of the European Union, on condition that the sentence has been executed, is in the process of being executed or can no longer be executed according to the law of the sentencing State.

Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions and its transposition in the Criminal Code of Procedure at articles 764-1 to 764-43.

As executing State : The public prosecutor of the Court in the jurisdiction in which the sentenced person has his habitual and regular residence or failing that, the public prosecutor of legal tribunal of Paris, is competent to receive the requests. The sentence enforcement judge of the same Court is competent to execute such request and adapt them if necessary. As issuing State : The public prosecutor of the sentencing Court or of the Sentence enforcement judge having rendered a decision on probation measures or alternative sanctions

France has not made a declaration on this matter.

Within 7 days of receiving the certificate, the public prosecutor shall refer the matter, together with his/her submissions, to the judge responsible for enforcing sentences (sentence enforcement judge) who is competent to rule on requests for recognition, adapting and monitoring (article 764-21 of the Code of Criminal Procedure); Within the 10 days following the prosecutor’s submissions, the sentence enforcement judge shall issue his ruling by making an order concerning the request for recognition (764-27 1°); The monitoring of the measure is conducted under the control of the sentence enforcement judge or of the public prosecutor if the measure does not fall within the responsibilities of the sentence enforcement judge and is regulated by the Criminal Code or by the Code of Criminal Procedure, from the date that the recognition decision becomes final or 10 days after that date in the event that it is adapted (764-34). The decision is notified to the sentence person who has 24 hours to refer the decision to the Court of appeal - to the Chamber of sentence enforcement "chambre d'application des peines". Its decision can also be referred to the Court of Cassation (article 764-31 of the Code of criminal procedure).

Nature of the sentences and measures concerned: • The sentences and decisions which can give rise to cross-border execution are the following (764-2): 1° Sentences consisting of probation orders which provide, in the event that the probation order is not complied with, a prison sentence or a custodial sentence which is, in whole or in part, suspended, conditional upon compliance with the probation orders; 2° Sentences involving an adjournment of sentencing and imposing probation measures; 3° Sentences imposing a sanction which is an alternative to a custodial sentence, imposing an obligation/order or an injunction, with the exception of financial penalties and confiscations; 4° Decisions imposing probation measures, issued within the framework of the execution of final sentences, in particular in cases of conditional release (parole). • The alternative sanctions and probation measures for which the monitoring (supervision) can be transferred to the executing State are those which impose one or more of the following obligations/orders or injunctions (764-3): 1° An obligation on the sentenced person to inform a specific authority of any change of home address or workplace; 2° An injunction prohibiting the person from entering certain premises or from entering certain areas specified by the sentencing State or by the executing State; 3° Restrictions on the possibility of leaving the territory of the executing State; 4° Injunctions concerning behavior, residence, training/education or leisure activities or including restrictions or requirements relating to the carrying out of a professional activity; 5° An order requiring the person to present himself at specific times to a specific authority; 6° An order to avoid all contact with specific persons; 7° A prohibition on possessing or using specific objects which have been used by the sentenced person or which could be used in order to commit an offence or a serious offence; 8° An order to make financial compensation for the damage/injury caused by the offence or an order to provide evidence that this requirement has been fulfilled; 9° An order to carry out community service (work in the community); 10° An order to cooperate with a probation officer or with a representative of a social service performing functions in relation to sentenced persons; 11° An order to undergo medical treatment or to undertake a program of detoxification treatment; 12° Where necessary, other orders and injunctions notified to the Secretary General of the Counsel of the European Union, which the executing State is willing to supervise. • The following orders can also be monitored and supervised in France (764-4): 1° A prohibition on the carrying out of a professional or charitable activity involving regular contact with minors; 2° A prohibition on driving a vehicle; 3° An order prohibiting the possession or carrying of a weapon for which a license is required. Procedure of adaptation of the sentence or measure (764-26): The sentence enforcement judge shall consider whether it is appropriate to adapt the sentence or probation measure that has been passed or ordered, or whether it is appropriate to adapt the length of the sentence or measure. When the nature of the probation measure or alternative sanction does not correspond to measures provided under French law, the sentence enforcement judge shall substitute the probation measure or alternative sanction with the measure which is closest to that ordered by the sentencing State which could have been lawfully imposed by a French court for the same offences. When the length of the alternative sanction or the probation measure is greater than that which could have lawfully been imposed by a French court for the same offence, the sentence enforcement judge shall reduce the length to the maximum length that can lawfully be imposed under French law for the corresponding offence. When the sentence comprises punishment for several offences he shall apply the maximum sentence lawfully applicable for the offence which corresponds to the most heavily punishable offence. The probation measure or alternative sanction thus adapted shall not be more severe or longer than that initially imposed. Outside of the EU, France is not party to a treaty or a Convention allowing the enforcement of probation measures or alternative sanctions.