Probation in Germany
Cooperation between probation
service, judges and prosecutors
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Cooperation between judges, prosecutors and
probation service in Germany
a) tasks and the cooperation (legal system)
b) Sanctions
c) Feedback system (Pre-sentence and post-sentence reports)
d) Cooperation example: risk management concept for sex
crime offenders
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Taken from: Jörg-Martin Jehle, Criminal Justice in Germany, 5th Edition 2009, Federal Ministry of
Justice Germany
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Taken from: Jörg-Martin Jehle, Criminal Justice in Germany, 5th Edition 2009, Federal Ministry of
Justice Germany
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The assignment of tasks and the cooperation (legal
system)
• Court: Probation decision and supervision of the performance of the
probation conditions
• Prosecutor: Execution of the punishment
• Probation service: supervision on behalf of the court and support of the
offender (dual mandate), reporting duty
• Other cooperation partners:
– prison service:
–
police: the probation service should use police informations
–
Govermental organizations and NGOs
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Cooperation partner
Others
•NGOs
•Drug therapy
center
•Youth welfare
institutions
•Etc.
Probation
service
• Support
• Supervision
Police
Prison
service
• Informations
• Crime
prevention
Prosecutor
Court
• statements
on request
• applications
• Probation
decisions
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Cooperation between probation service
and court
the court needs
informations for
good decisions
the probation
service needs
good probation
decisions for
effective
rehabilitation
work
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Revocation of probation decision
The difference between conditions and instructions is important for revocation (later). The
freedom to invent conditions is very important for specific interventions within the
probation term.
Conditions (concluding enumeration by law)
• to make restitution
• to pay money to a non profit organization or the public treasury
• to work for community service
Instructions, e.g. (!), the court is free to invent other proportionate instructions
• Not to change his residence without compliance of the court
• Not to contact children
• Not to work as a teacher for children
• Not to stay near to playgrounds ...etc.
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Sanctions
• Prolonging of probation term
• Modification or addition of conditions
• Revocation
• Criminal offence: Violation of mandatory supervision
conditions
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Guidance (mandatory supervision) and
probation service
Different types of probation decisions
• probation by sentence
• Probation after
suspension of the
remainder of
imprisonment
• ---------• Sanctions
• Prolonging of
probation term
• Modification or
addition of
conditions
• Revocation
• By sentence
• After full service of
imprisonment
• ------------• Sanctions
• Prolonging of
probation term
• Modification or
addition of
conditions
• Criminal offence:
Violation of guidance
(mental supervision)
conditions
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Mandatory supervision
• Mandatory supervision is mainly an instrument of prevention
• It is aimed on assistance and guidance for resocialisation in difficult cases
because of a high risk of re-offending or a high need for resocialisation
because of long time of imprisonment
• Main case: Mandatory supervision as a rule by law (no sentence necessary)
after full service of a sentence of imprisonment
• of at least 1 year in case of sex crime
• of at least 2 years in (all!) other offenses with intent
• Probation service is obligatory
• Court fixes probation term and conditions
• Sanctions: no revocation, no remainder of imprisonment, but crime
offence: the violation of conditions in case of guidance is punishable with
Scherrer, probation in germany,
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cooperation and risk management, 2011
The probation sentence in Germany
Decision (seperate but simultaneous with the sentence)
In the case of
• no more than 2 years prison
• Positive prognosis
• special circumstances
Term of probation: 2-5 years
• begins when sentence becomes final,
• subsequent reduction or prolongation possible
Court places a Probation service social worker :
• Youth: regular when youth custody law (-18 years; - 21 years when like youth)
• Young adults -27 years: regular when sentence more than 9 months
• Adults: when advisable for prevention of comitting crimes
Probation service social worker
• Support /Help
• Supervision/Control
• Reporting (later more about reporting and feedback system )
The court may impose conditions and instructions
• Important:inventive instructions at court´s discretion
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Revocation of probation decision
The preconditions of revocation
Grossly and
persistently
Violation of
conditions
and
or
Is it sufficient to prevent
re-offending by
Violation of
instructions
Commitment
of a crime
during
probation
prolonging the probation
Avoidance of
supervision
of probation
officer
term or
modifying conditions or
instructions?
and
thereby
risk of reoffending
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Revocation
Re-offender
Not every committed crime has to cause revocation. First of all the guilt has to be proven.
Because of the presumption of innocence, the re-offending crime has to be sentenced
first.
If the new sentence of the court (which could be another court) includes a new decision
of suspension and probation in most cases the court which supervises the first probation
will follow and not revoke.
If the new sentence e.g. disposes a fine it depends on the decision of the court whether
the relapse of crime gives a bad prognosis or not, e.g. a crime in point could be more
relevant for the revocation prognosis.
Also in this case the court has to verify if it will do to give further conditions or instructions
or to prolong the term.
If the re-offendering sentence disposes a non-suspended imprisonment the probation
court will follow in most cases and revoke the suspension of the earlier sentence.
The wording of the law shows: Revocation is ultima ratio.
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Revocation
-formal proceedings Before every decision about the suspension or the remake of probation, whether it is about
prolonging the term or revocation, the court has to hear the prosecutor which is in the
position to apply a specific decision. The court shall also inform the probation service
social worker if a revocation is expected and request for a report. The court has to
give the convicted person the opportunity for a hearing before revocation. If revocation is
expected the convicted person can also be arrested under the preconditions of custody
(e.g. Risk of escape).
The prosecutor and the convicted person have the right to complain against a revocation
decision. It has to be an immediate complaint (1 week). The complaint comes to a higher
court (local court - regional court; regional court – upper regional court. The higher court is
able to replace the decision and reform the probation modalities. The supervising of the
reformed probation is task of the primal court even if a higher court decided.
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Cooperation between probation service
and court
the court needs
informations for
good decisions
the probation
service needs
good probation
decisions for
effective
rehabilitation
work
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Feedback system
•
Probation service
– Probation reports for the court
• on request
• immediately in case of special incidents
• at least every 6 months
• At the end of probation
•
Court
– Decisions (even other proceedings)
•
Prosecutor
– Indictments (other proceedings)
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The legal foundation and the practical use of reports for the courts and
prosecutors
post sentence reports
Different types of post sentence reports
Regular probation reports
Irregular probation reports
Revocation report
Report before Remission of
sentence
Other reports
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The legal foundation and the practical use of reports for the courts and
prosecutors
post sentence reports
Different types of post sentence reports
Regular probation reports
Irregular probation reports
• Section 56d GCC (Probation Assistance)
• “(3) The probation officer shall assist and care for the
convicted person. With the approval of the court he
shall supervise the fulfillment of the conditions and
instructions as well as the offers and promises. He
shall report on the way the convicted person is
conducting his life at intervals determined by the
court.”
• Section 56d Probation Assistance
• (3) …He shall inform the court as to gross or persistent
violations of the conditions, instructions, offers or
promises.
• In many cases the court does not explicit determine
intervals, but it is usually expected to report every 6
months or later every year. It depends on the local
habits.
• The probation service social worker may have a
problem with data secret and duty of discretion (next
sheet)
• The probation officer has to decide whether the
violation is gross or persistent and he has to write an
irregular report for the court.
The wording of the law differentiates between regular and irregular reports and makes clear that the
probation officers has not to report every detail but only “gross” or “persistent” violations.
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The legal foundation and the practical use of reports for the courts and
prosecutors
post sentence reports
Duty of discretion
There is no explicit law about the duty of discretion and the confidential data for probation officers so many
discussions are about the range of discretion secret . IThe duty of discretion between probation officer and
offender as an essential precondition for a successful probation work. The violation of private secrets is a
criminal offence in the German Criminal Code. The wording of the law is as following:
Section 203 German Criminal Code (Violation of Private Secrets)
(1)Whoever, without authorization, discloses a the secret of another, in particular, a secret which belongs to the realm of personal
privacy or a business or trade secret, which was confided to, or otherwise made known to him in his capacity as a:
…5. a state-recognized social worker or state-recognized social education worker;
But the prevailing opinion of the law commentaries is that probation officers does not violate this law when
reporting confident details to the court because of the supervision mission of probation officers.
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Probation service in Germany
-range of service/risk managementDual mandate by law
help/support
control/supervision
Probation service supports the
resocialisation process with
dialogues, advice and case
management and reports the court
Probation service supervises and
reports the court about the
performance of conditions appointed
by the court and the way of life of the
offender
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The legal foundation and the practical use of reports for the courts and
prosecutors
post sentence reports
Duty of discretion
Summary: The probation officer has to decide if he reports details regarding his supervision
mission or if he holds back “private” secrets of the offender to protect the confident
relation if it is only relevant for his support mandate.
The dual mandate is sometimes a discretion dilemma for the probation service social
worker.
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The legal foundation and the practical use of reports for the courts and
prosecutors
post sentence reports
Different types of post sentence reports
Revocation report
• The report of the probation service is important for the
following revocation decisions of the court:
• The reason of revocation
• The prognosis if it is sufficient to give further
conditions or instructions and not to revoke
• The revocation report can also be used as new presentence report. If an imprisonment sentence or a new
probation is expected, the probation officer will be
invited to the new court proceeding. His revocation
report may in this case also be a new pre-sentence
report.
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Reporting as a method …
Which contents and which volume do the reports have?
Name, address, family status, occupation and profession, competence and
social skills, income, debts, compliance with the probation rules,
information about the criminal attitude, medical status, regulatory
requirement.
Each report and information has to be restricted to the relevant facts. For
example: The medical status of the client is very important if the offender
has committed a drug-related crime. If the offender has committed acts of
fraud the medical status is less relevant.
IT based reports have been developed in most states
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Reporting as a method …
- basic principles of reporting-
When the probation officer start to work with his client he should inform
him about his reporting duties. A professional probation officer should
discuss the content with the offender and implement the point of view of
the offender in the report.
The reports shall explain the goals and challenges of the probation.
Due to its criminal justice context the report has to describe the criminal
and social attitude of the offender.
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Regular report
Housing situation:
Mr. X still lives under his known address in ….
Social situation:
Mr. X still joins the 3-room-apartment with his parents and has no steady relationship.
Orders and instructions:
Mr. X has successfully finished his education in gastronomy as a waiter (see applicated certificate) and served his instruction so far.
He has also served his community service of 60 hours from … to …
He managed to attend 14 dates of the social training programme. He has been released from the regular programme to share the
special programme against violence. The training against violence starts on ... and will take 8 dates plus a weekend with overnight
stay. I will report about the further fulfilment in the next report.
Work/school:
Since his education in gastronomy he is without work. He started only 4 applications in the last months but he is willing to
strengthen his efforts and I will mainly support him this way.
Financial situation:
He is living from unemployment benefit (344 €) and is trying to get some more social welfare.
Cooperation:
I have constant and continuous contact with Mr. X. He is reliably coming to our meetings.
New offences:
Mr. X has been caught to use the bus without paying. The new offence will be on trial at the local court. Nevertheless Mr. X is in a
quite steady situation and well cooperating. He tends to ignore his social problems but he already begins to realize that his
ignorance brings trouble. He should be more organized and force his own career but the situation is getting better.
The next report is going to be send in 6 months if no earlier report will be requested by the court.
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Signature
cooperation and risk management, 2011
Cooperation example
Special intervention program for sex crime offenders
•
Aim: Reducing the re-offending risk of sex crime offenders
•
Better research and collection of informations
•
Better coordination between police, probation service, prison service, courts and prosecutors
•
Special risk assessment
– in case of imprisonment by psychologists of prison service
–
in case of psychiatric hospital by psychologists of hospital
–
in case of no-stationary sanction: comission probation service and special central police
unit
•
Special qualified staff of probation service
•
Contact probation service and police, round tables
•
Police, central special unit
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Special intervention program for sex crime offenders
- risk assessment and interventionsCategory A (acut risk)
• high risk
• no protective factors
• re-offending risk at any time
Kategorie B (latent risk)
• high risk
• protective factors
• re-offending risk if protective
factors get lost
Kategorie C (all others)
• all others
•Special qualified probation service social worker
• Regular probation
•First six months: weekly personal contact
service social worker
•intervision obligatory with expert adviser risk
management
• first report to the court after 8 weeks
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Special intervention program for sex crime offenders
Prison service
Risk assessment
I
n
f
o
r
m
a
ti
o
n
Prognosis of re-offending
4 months before release
information of prosecutor
Prosecutor (which is responsible for execution of
imprisonment)
3 months before release
Police
application for the probation decision
•Special central
Court
decision
police unit
• special ontact
persons
•Central
database
Probation service
supervision and support
•Collecting
informations
•Transmitting
informations to
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•Round tables
Example: sex crime offender with a probation instruction from
the court not to stay near playgrounds, a neighbour informs
the police that a suspect is hanging around playground, police
control, sex offender mark in database, report to special unit,
analysis, transmission of information to probation service,
report to the court, court hearing, police will visit him to
prevent re-offence, probation officer will talk with him, the
offender knows he is under social control
Other example: an offender has been sentenced because of
child abuse, served imprisonment, probation instruction from
the court after release, instruction not to have children in
household, regular police control of driving licence on the
street, offender with child in car, sex offender marked in
database, informationflow
A good feedback system reduces the risk of re-offending.
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•
•
•
•
Challenges
development of risk management
continuation of qualification of probation
service
improvement of cooperation
esp. between prison service and probation
service
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Thank you!
Stefan Scherrer, judge, deputy director of local court in
Göttingen, Germany
[email protected]
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