UNDERSTANDING BREACH PROCESSES IN A EUROPEAN CONTEXT Chair: Miranda Boone Chair: Miranda Boone

women and (2) on studying whether the norm has been effective; this indicates if the prohibition norm are being fulfilled, or if it was possible to have reacted properly to the non-performance of the norm by means of enforcement of law. Both indicators lead us to (3) the efficiency analysis of the legal reforms in order to evaluate the cost/benefit relation of the current model.

From our three main hypotheses and a qualitative and quantitative methodology, some of the preliminary main results are:

1. Spanish Criminal Policy Model in gender-based violence is not efficacious because there is not a reduction of battered and killed women.

2. Spanish Criminal Policy Model in gender-based violence is effective since most of the resources of penal intervention and social resources linked to penal ones have been activated.

However, all the resources are not working appropriately. The educational resources for example have not been sufficiently developed.

3. Spanish Criminal Policy Model in gender-based violence is not efficient since there are the following costs:

- A progressive rejection of women to go to the criminal justice system to solve their problems.

- A criminalization of women, who misinformed go to the criminal justice system without knowing which implies putting it in operation.

- The Impact of criminal justice system is relapsing principally on victims and offenders with certain social characteristics tied to most socially excluded groups.

- The automatic application of the protection orders. This legal tool can become dangerous because sometimes the aggressor becomes more violent with his couple or his children.

- The overload of the capacities of management of restraining orders in the criminal justice system.

1.11 UNDERSTANDING BREACH PROCESSES IN A EUROPEAN CONTEXT

49 Different parties are involved in decision-making processes around breach and recall in different European countries. In case of non-compliance with a community sentence, in most jurisdictions there are at least three parties involved: direct supervisors, probation officers and judges. In the early release phase the main actors are parole officers/Boards, Prison directors and judges. Empirical research based on the use of vignettes, however, reveals the existence of further and less obvious actors, such as team coordinators for probation staff and public prosecutors. After describing the various actors and their roles, the analysis looks at (1) how the various actors cooperate and communicate to produce decisions stemming from non-compliance by offenders during community sentences; (2) how the role of the offender differs in different phases of the decision-making process and in the various jurisdictions; (3) differences between law and practice in the distribution and exercise of power, and (4) the rationalities and aims that the different actors pursue. The final analysis of the empirical research conducted reveals a complex picture in which the issue of control of the information on the offender and final control of the decisions does not always correspond to the one depicted in the written law.

0041 - BREACHING COMMUNITY SENTENCE IN THE EU: SOME REFLECTIONS ON STATISTICS Klara Kerezsi (Hungary)¹; Alfredas Laurinavicius (Lithuania)²

1 - National University of Public Service Faculty of Law Enforcement; 2 - Vilnius University The presentation deals with the statistics on breaches. After having collected the available statistics on breaches in some EU jurisdictions, we are looking for answers to the question:

‘Who needs the statistics?’ The available data show how many decision-makers are involved in the breach process, they orient us concerning the decisions to be made, as well as about the outcomes. However, it would be good to know whether the tighter probation enforcement may increase the numbers of prisoners / probationers back to prison after release. The authors deal with the relevance of available statistics concerning the stages and outcomes of breach process, and what remains invisible from the statistics (e.g. the rate of technical vs criminal violations). As a consequence the lack of reliable and comparable statistics in the field of probation and parole, it should be worked out as the common ground of importance, what kind of data ought to be collected by European countries concerning breach and breach procedure.

0042 - LEGITIMACY, FAIRNESS AND JUSTICE IN THE BREACH PROCESS: EUROPEAN PERSPECTIVES

Christine Morgenstern (Germany)¹; Luisa Ravagnani (Italy)² 1 - University of Greifswald; 2 - University of Brescia

Art. 5 of the European Convention on Human Rights protects every person from arbitrary interference by the state with his or her right to liberty; Art. 6 enshrines the Right to be treated fairly throughout the criminal process. These two guarantees therefore are the common legal pillars of procedural justice in all 47 Member States of the Council of Europe and the jurisprudence of the European Court of Human Rights has helped enormously to develop a better understanding and practice in many of these states.

Both rights, however, are only applicable to a very limited extent to those undergoing supervision as a part of their sentence and being confronted with a breach procedure, although their rights and liberties are at stake (again). Our paper explores how relevant concepts of the ECHR can and must be translated to these processes of breach: How robust do the reasons for negative consequences have to be, which standard of proof can we require?

What does the right to be heard encompass – does it require a personal encounter between decision-maker and the person involved? Does this include the right to legal representation (and will it be paid for?) To answer these questions, additional Recommendations made by the Council of Europe, namely the European Rules on Community Sanctions and Measures and the European Probation Rules will be of use.

0043 - ‘TO BREACH OR NOT TO BREACH?’ DISCRETION IN BREACH DECISION-MAKING PROCESSES

Kristel Beyens (Belgium)¹; Gill Mcivor (United Kingdom)²; Anders Persson (Sweden)³ 1 - Vrije Universiteit Brussel; 2 - University of Stirling; 3 - Lund University

As in other areas of criminal justice making, also in the analysis of breach decision-making, discretion emerges as a central theme. It could be argued that too much discretion leads to a lack of certainty with regard to the consequences of their behaviour for those who are subjected to a breach procedure. Too much leeway may also result in unequal treatment of people who violate the rules. However, individualised decision-making, allowing situational factors to be taken into account may be perceived to result in fairer decisions.

When studying discretion in the field of breach we distinguish between the existence and nature of the rules that regulate breach decision-making on the one hand and how strictly these rules are followed on the other.

This paper will present some preliminary findings from a comparative analysis of breach decision-making in several European jurisdictions. In particular it will discuss some themes that have emerged from the study of the breach regulations and the views of practitioners that have been involved in their implementation. We will link these themes to wider theoretical concepts, such as procedural justice, Managerialism, professionalism and risk.

51 0044 - 'LEGITIMACY, FAIRNESS AND JUSTICE IN THE BREACH PROCESS': COMPARATIVE PERSPECTIVES?

Niamh Maguire (Ireland)¹; Jose Cid (Spain)³; Anthea Hucklesby (United Kingdom)²; Maria Anagnostaki (Greece)⁴

1 - Waterford Institute of Technology; 2 - University of Leeds; 3 - Universitat Autonoma Barcelona; 4 - National & Kapodistrian University of Athens

Significant attention is paid to the rights of those suspected or accused of criminal offences.

However, there has been much less focus on the rights of offenders who breach supervisory sentences, including community orders, or those who breach conditions of early release from prison despite the consequences of such infractions sometimes being severe. These may include being sent or recalled to prison for significant periods of time, additional conditions such as electronic monitoring being imposed or being resentenced. Due process rights such as the right to a public hearing and legal representation and standards of evidence and proof often depart significantly from those applied prior to conviction. This paper will examine the breach and recall processes in several European jurisdictions to explore the extent to which due process protections are enshrined into law and operate in practice in relation to both community sentences and early release from prison.

1.12 LOCATING THE ROOTS OF INSECURITY AND VIOLENCE: COMMUNITY TRAUMA