Prof. Dr. Gerard de Jonge's recommendation after his review of the law draft "On Probation" on the Round Table in Astana on October 6, 2016

1. Key tasks of a modern
Probation Service
Dr. Gerard de Jonge, professor emeritus of detention law at the
Maastricht University, The Netherlands

2. Faculty of Law
General observations on the quality of
the draft and its implementation (I)
• An Explanatory Memorandum should be drafted to go with the
Law
– Makes in easier for all (future) stakeholders and the general public to understand the
legal provisions
• The draft contains the necessary elements for the
development of - over time - an effective probation service.
– But missing in Art. 1: definition of ‘community service’, as a key activity of a modern
Probation Service; should be mentioned in art. 1.4
• Level of legislation: before adopting a Probation Law perhaps
a Probation Regulation is a sufficient legal basis for the
intended Probation Service
– a Regulation is easier to adapt than a Law, which is important in the initial phase of
the (step by step) implementation of this new agency.

3. Faculty of Law
General observations on the quality of
the draft and its implementation (II)
• The draft does not state under which Ministry the probation
service will operate
– Which Minister is responsible/accountable? In most European Countries it is the
Minister of Justice, being responsible for the criminal justice system.
• The probation service is seen as a monopolist state agency
leaving no room for other (e.g. private, non-profit) probation
services.
– See: European Probation Rules, Part I, ‘Scope and application’. Art. 8 Draft law only
refers to voluntary involvement of 3rd
parties.
• The Probation Service is described as an ‘correctional agency’
– Art. 1.7 of the Draft. This runs counter with the definition used in Part I of the
European Probation Rules.

4. Faculty of Law
General observations on the quality of
the draft and its implementation (III)
• The hierarchical, spatial and functional and set up of the
Probation Service is not regulated in the draft text
– Chapter 2 of the draft defines a number of ‘Probation entities’, a confusing term;
what is meant, perhaps, is the listing of all agencies and authorities the Probation
Service has to co-operate with, like is described in Part III of the European Probation
Rules. The title of this chapter could perhaps be changed in ‘Relations of the
Probation Service with other agencies’.
– The draft should say how the Probation service shall be organized nationwide: e.g. a
central office under the Ministry of (Justice/ Internal Affairs?), with regional and/or
municipal units. These units could be functionally subdivided (assessment of
suspects/offenders, preparation for early release, supervision and counseling,
carrying out behavioural interventions, section for juveniles etc.)

5. Faculty of Law
Tasks of the probation service in the
pre-trial phase (I)
• Assisting arrestees at police station
– ‘early intervention’ – good practice in The Netherlands
– visiting every arrestee
– needs basis in Act on Criminal Procedure
– provisional assessment of problems
– basis for further
– no provision for this kind of intervention in draft law on probation

6. Faculty of Law
Tasks of the probation service in the
pre-trial phase (II)
• Advising prosecutor and court on alternatives for pre-
trial detention in pre-trial report
– This (essential) task is not mentioned in the draft text.
– Initial assessment of personality and social circumstances of
suspects and
– Advice on alternatives for pre-trial detention:
• Pre-trial detention not necessary
• Pre-trial detention - if ordered - to be suspended conditionally until trial
• Possible conditions: supervision by probation service with/ without electronic
monitoring
• no community service in this phase applicable because this is a sentence

7. Faculty of Law
Tasks of the probation service in the
trial phase
• Advising the court on type and duration and format of
sentence (pre-sentence report)
– Updating existing initial assessments of personality and social
circumstances of suspects
– Advising the court reports concerning on type, severity/length and format
of the sentence to the court (pre-sentence, not pre-trial, report)
– Result: personalized sanctions; enhancing quality of sentencing decisions
– Not to be viewed as infringement on the autonomy or independence of
prosecutors and judges
• Being present in court as an expert
– To clarify the pre-sentence report when asked to so by prosecutor, court or
defense lawyer (this task is not included in the draft)

8. Faculty of Law
Tasks of the probation service in the
post-trial phase
• Organisation and supervision of:
– community sentences (not in draft)
• Supervision of (partly) conditional sentences (art. 21
prior Draft) Why left out of the latest Draft?
• Preparation for conditional release (parole) (art. 14/15)
– timely preparation in co-operation with prison staff
– advisory report to authority deciding on parole
– during probationary period: assistance/counseling/supervision of
parolee
– Reference document: CoE Recommendation 2003, 22 on
conditional release (parole); to be mentioned in preamble

9. Faculty of Law
Other issues
• Development/ implementation of assessment tool(s)
• Training of staff
• Broadening the applicabilitity of community service to
all types of criminal offenses
• Uniforms and guns do not establish positive relations
with probationers (no ‘probation at gunpoint’)
• Regulating the legal position of probationers (complaint
procedures)

10. Faculty of Law
Other issues
• Development/ implementation of assessment tool(s)
• Training of staff
• Broadening the applicabilitity of community service to
all types of criminal offenses
• Uniforms and guns do not establish positive relations
with probationers (no ‘probation at gunpoint’)
• Regulating the legal position of probationers (complaint
procedures)