Recommendation CM/Rec(2014)3
of the Committee of Ministers to member States
concerning dangerous offenders

(Adopted by the Committee of Ministers on 19 February 2014

at the 1192nd meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Considering that the aim of the Council of Europe is to achieve greater unity between its members, in particular through harmonising laws on matters of common interest;

Considering the specific approach necessary with regard to dangerous offenders detained in the prisons in its member States;

Recognising the challenges which European States face in balancing the rights of dangerous offenders with the need to provide security in society;

Bearing in mind the relevance of the principles contained in previous conventions and recommendations and in particular:

- the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5);

- the Convention on the Transfer of Sentenced Persons (ETS No. 112);

- the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201);

- Recommendation Rec(82)17 of the Committee of Ministers to member States concerning custody and treatment of dangerous prisoners;

- Recommendation Rec(92)17 of the Committee of Ministers to member States concerning consistency in sentencing;

- Recommendation Rec(97)12 of the Committee of Ministers to member States on staff concerned with the implementation of sanctions and measures;

- Recommendation Rec(98)7 of the Committee of Ministers to member States concerning the ethical and organisational aspects of health care in prison;

- Recommendation Rec(2000)20 of the Committee of Ministers to member States on the role of early psychosocial intervention in the prevention of criminality;

- Recommendation Rec(2000)22 of the Committee of Ministers to member States on improving the implementation of European rules on community sanctions and measures;

- Recommendation Rec(2003)23 of the Committee of Ministers to member States on the management by prison administrations of life sentence and other long-term prisoners;

- Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorder;

- Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules;

- Recommendation CM/Rec(2008)11 of the Committee of Ministers to member States on the European Rules for juvenile offenders subject to sanctions or measures;

- Recommendation CM/Rec(2010)1 of the Committee of Ministers to member States on the Council of Europe Probation Rules;

- Recommendation Rec(2014)4 of the Committee of Ministers to member States on electronic monitoring;

Taking into account the constitutional principles, legal traditions and the independence of the judiciary in its member States;

Acknowledging that this recommendation does not contain any obligation to member States to introduce secure preventive detention or preventive supervision into national law;

Acknowledging that this recommendation could be applied in accordance with national law mutatis mutandis in other cases than those referred to in the recommendation;

Recognising that a range of authorities and agencies deal with dangerous offenders and that such bodies are in a need of a coherent set of guiding principles in line with Council of Europe standards,

Recommends that Council of Europe member States:

- be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation;

- ensure that this recommendation and its accompanying commentary are translated and disseminated to all relevant authorities, agencies, professionals and associations which deal with dangerous offenders, as well as to the offenders themselves.

Appendix to Recommendation CM/Rec(2014)3

Part I – Definitions and basic principles

Definitions

1. For the purpose of this recommendation:

a. A dangerous offender is a person who has been convicted of a very serious sexual or very serious violent crime against persons and who presents a high likelihood of re-offending with further very serious sexual or very serious violent crimes against persons.

b. Violence may be defined as the intentional use of physicial force, either threatened or actual, against persons, that either results in, or has a high likelihood of resulting in, injury, psychological harm or death. This definition identifies four means by which violence may be inflicted: physical, sexual and psychological attack and deprivation of liberty.

c. Risk is defined as the high likelihood of a further very serious sexual or very serious violent offence against persons.

d. Risk assessment is the process by which risk is understood: it examines the nature, seriousness and pattern of offences; it identifies the characteristics of the offenders and the circumstances that contribute to it; it informs appropriate decision making and action with the aim of reducing risk.

e. Risk management is the process of selecting and applying a range of intervention measures in custodial and community settings and in the post-release period or in the context of preventive supervision, with the aim of reducing the risk of very serious sexual or very serious violent crime against persons.

f. Treatment includes, but is not limited to, medical, psychological and/or social care for therapeutic purposes. It may serve to reduce the risk posed by the person and may include measures to improve the social dimension of the offender’s life.

g. Secure preventive detention means detention imposed by the judicial authority on a person, to be served during or after the fixed term of imprisonment in accordance with its national law. It is not imposed merely because of an offence committed in the past, but also on the basis of an assessment revealing that he or she may commit other very serious offences in the future.

h. Preventive supervision means measures of control, monitoring, surveillance or restriction of movement imposed on a person after he or she has committed a crime and after he or she has served a prison sentence or instead of. It is not imposed merely because of an offence committed in the past, but also on the basis of an assessment revealing that he or she may commit other very serious offences in the future.

Scope, application and basic principles

2. This recommendation shall not apply :

a. to children;
b. to persons with mental disorder who are not under the responsibility of the prison system.

3. Dangerous offenders, like all offenders, should be treated with respect for their human rights and fundamental freedoms, and with due regard for their particular situation and individual needs while at the same time protecting society effectively from them.

4. Any decision that could result in the deprivation or restriction of liberty of a dangerous offender shall be decided or agreed by the judicial authority. Restriction and intervention measures should not be disproportionate to the level of risk and the least restrictive measure consistent with the protection of the public and the reduction of risk should be applied.

5. Careful adherence to criteria for identifying the “dangerous offender” should take into account that this group is a small minority of the total offender population, without, however, compromising public safety. Such criteria should include evidence of previous serious violence, sexual offending, the characteristics of the offender or his/her offending that indicate the likelihood of substantial and continuing risk of violence, or sexual offending, as well as evidence of the inadequacy of lesser measures, such as the offender’s previous failure to comply and persistent offending despite the application of lesser measures. The length of the sentence or the offender's general recidivism cannot constitute the only criteria for defining an offender as dangerous in this sense.

6. The risk management of dangerous offenders should, where appropriate, have the long-term aim of their safe reintegration into the community in a manner consistent with public protection from the risk posed by the offender. This should involve an individual plan that contains a staged process of rehabilitation through appropriate intervention.

7. Positive steps should be taken to avoid discrimination and stigmatisation and to address specific problems that dangerous offenders may face while in prison and while undergoing preventive supervision in the community.

8. The protection of the individual rights of dangerous offenders, with special regard to the legality of the execution of the measures (secure preventive detention, preventive supervision), should be secured by means of regular and independent monitoring, according to national rules, by a judicial authority or other independent body authorised to visit and not belonging to the prison administration.

9. Special risk-related needs of dangerous offenders should be addressed throughout the period of the intervention and sufficient resources should be allocated in order to deal effectively with the particular situation and specific needs.

10. Risk assessment and management practices should be evidence based.

11. The effectiveness of risk assessment and management of dangerous offenders should be evaluated by encouraging and funding research that will be used to guide policies and practices within the field. Risk assessment tools should be carefully evaluated in order to identify cultural, gender and social biases.

12. Appropriate training in assessing and dealing with dangerous offenders should be provided for the relevant authorities, agencies, professionals, associations and prison staff, to ensure that practice conforms to the highest national and international ethical and professional standards. Particular competencies are needed when dealing with offenders who suffer from a mental disorder.

Part II – Judicial decisions for dangerous offenders

General provisions

13. Risk assessment should be commissioned by the judicial authority.

14. The alleged dangerous offender should have the possibility of commissioning a separate expert report.

15. The judicial authorities should, where possible and appropriate, be provided with pre-sentence reports about the personal circumstances of the offender whose dangerousness is being evaluated.

Secure preventive detention

16. The decision of a judicial authority to impose secure preventive detention against a dangerous offender should take into account a risk assessment report from the experts.

17. A dangerous offender should only be held in secure preventive detention on the basis of an assessment establishing that he or she may with high likelihood commit a very serious sexual or very serious violent crime against persons in the future.

18. Secure preventive detention is only justified when it is established as the least restrictive measure needed.

19. When secure preventive detention takes the form of detention beyond the period prescribed for punishment, it is essential that those detained are able to challenge their detention, or the limits on their freedom, before a court at least every two years after the expiry of the period prescribed for punishment.

20. Anyone held for preventive reasons should be entitled to a written plan which provides opportunities for him or her to address the specific risk factors and other characteristics that contribute to their current classification as a dangerous offender.

21. The aim of the relevant authorities should be the reduction of the restriction and release from secure preventive detention in a manner consistent with public protection from the risk posed by the offender.

22. Dangerous offenders in secure preventive detention should, after the expiry of the period prescribed for punishment, be held in appropriate conditions subject to the requirements of risk management, security and public protection. In any case, respect for human dignity should be guaranteed.

Preventive supervision

23. Preventive supervision may be applied as an alternative to secure preventive detention, as a condition for release on probation, or after release, and should be reviewed on a regular basis.

24. Such supervision may consist of one or more of the following measures set up by the competent authority:

i. regular reporting to a designated place;

ii. the immediate communication of any change in place of residence, of work or position in the way and within the time limit set out;  

iii. prohibition from leaving the place of residence or of any territory without authorisation;

iv. prohibition from approaching or contacting the victim, or his or her relatives or other identified persons;

v. prohibition from visiting certain areas, places or establishments;

vi. prohibition from residing in certain places;

vii. prohibition from performing certain activities that may offer the opportunity to commit crimes of a similar nature;

viii. participation in training programmes or professional, cultural, educational or similar activities;

ix. the obligation to participate in intervention programmes and to undergo regular re-assessment as required;

x. the use of electronic devices which enable continuous monitoring (electronic monitoring) in conjunction with one or some of the measures above;

xi. other measures provided for under national law.

25. When considering indeterminate supervision or life-long supervision, suitable guarantees for a just application of this measure should be guided by the principles contained in Recommendation Rec(2000)22 on improving the implementation of European rules on community sanctions and measures.

Part III – Risk assessment principle during the implementation of a sentence

26. The depth of assessment should be determined by the level of risk and be proportionate to the gravity of the potential outcome.

27. Risk assessments should involve a detailed analysis of previous behaviours and the historical, personal and situational factors that led to and contributed to it. They should be based on the best reliable information.

28. Risk assessment should be conducted in an evidence-based, structured manner, incorporating appropriate validated tools and professional decision making. Those persons undertaking risk assessments should be aware of and state clearly the limitations of assessing violence risk and of predicting future behaviour, particularly in the long term.

29. Such risk assessment instruments should be used to develop the most constructive and least restrictive interpretation of a measure or sanction, as well as to an individualised implementation of a sentence. They are not designed to determine the sentence although their findings may be used constructively to indicate the need for interventions.

30. Assessments undertaken during the implementation of a sentence should be seen as progressive, and be periodically reviewed to allow for a dynamic re-assessment of the offender’s risk:

a. Risk assessments should be repeated on a regular basis by appropriately trained staff to meet the requirements of sentence planning or when otherwise necessary, allowing for a revision of the circumstances that change during the execution of the sentence.

b. Assessment practices should be responsive to the fact that the risk posed by an individual’s offending changes over time: such change may be gradual or sudden.

31. Assessments should be coupled with opportunities for offenders to address their special risk-related needs and change their attitudes and behaviour.

32. Offenders should be involved in assessment, and have information about the process and access to the conclusions of the assessment.

33. A clear distinction should be made between the offender’s risks to the outside community and inside prison. These two risks should be evaluated separately.

Part IV – Risk management

34. Interventions for the prevention of reoffending should be clearly linked to the ongoing risk assessment of the individual offender. It should be planned for both the custodial and community settings, ensuring continuity between the two contexts.

35. All plans developed with this aim in mind should include: rehabilitative and restrictive measures to reduce the likelihood of reoffending in the longer term, while affording the necessary level of protection to others; measures to support the individual to address personal needs; contingency measures to respond promptly to indications of either deterioration or imminent offending; and appropriate mechanisms to respond to indications of positive changes.

36. Such a plan should facilitate effective communication, co-ordinate the actions of various agencies and support multi-agency co-operation between prison administration, probation workers, social and medical services and law enforcement authorities.

37. Plans should be realistic and have achievable objectives and should be structured in such a way as to allow the offender to understand clearly the purposes of the interventions and the expectations of him or her.

38. The above processes should be subject to regular review, with the capacity to respond to changes in risk assessment.

39. In addition to these recommendations, risk management in the community should be guided by the principles contained in Recommendation CM/Rec(2010)1 on the Council of Europe Probation Rules and Recommendation Rec(2000)22 on improving the implementation of European rules and community sanctions on measures.

Part V – Treatment and conditions of imprisonment of dangerous offenders

Conditions of imprisonment

40. Imprisonment, through the deprivation of liberty, is punishment in itself. The conditions of imprisonment and the prison regimes should be guided by the principles contained in Recommendation Rec(2006)2 on the European Prison Rules.

41. Security measures should be set to the minimum necessary, and the level of security should be revised regularly.

Treatment

42. As soon as possible after admission and after an assessment of the risks, special risk-related needs and characteristics of the offender, appropriate treatment in a suitable institution should be prepared in the light of the knowledge obtained about individual special risk-related needs, capacities and dispositions. This should take into account proximity to relatives and specific conditions. The implementation should be supervised by a competent authority.

43. Treatment may include medical, psychological and/or social care.

44. Those who have, or develop, a mental disorder, should receive appropriate treatment. The guidance given in Recommendation Rec(98)7 concerning the ethical and organisational aspects of health care in prison should be followed. The medical or psychiatric service of the penal institutions should provide or facilitate the medical and psychiatric treatment of all dangerous offenders who are in need of such treatment.

45. The purpose of the treatment of dangerous offenders should be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will help them to lead law-abiding and self-supporting lives.

Work, education and other meaningful activities

46. Persons under secure preventive detention should have access to meaningful activities and access to work and education guided by the principles contained in Recommendation Rec(2006)2 on the European Prison Rules.

Vulnerable people

47. Special attention should be given by the prison administration to the special needs of elderly offenders and to the education of young adult offenders.

Part VI – Monitoring, staff and research

48. Staff and agencies dealing with dangerous offenders should be subject to regular government inspection and independent monitoring.

49. All staff, including relevant authorities, agencies, professionals and associations involved in the assessment and treatment of dangerous offenders should be selected on the basis of defined skills and competences and professionally supervised. They should have sufficient resources and training in assessing and dealing with the specific needs, risk factors and conditions of this group. Particular competencies are needed when dealing with offenders who suffer from a mental disorder.

50. Training in multi-agency co-operation between staff inside and outside prisons should be arranged.

51. Research on the use and development of reliable risk and needs assessment tools should be undertaken with special reference to dangerous offenders.

52. Evaluative research should be conducted to establish the quality of risk assessment.

Part VII – Follow-up

The European Committee on Crime Problems (CDPC) should play a significant role in the effective implementation of this recommendation. It should make proposals to facilitate or improve its valuable use. The CDPC should include the identification of any problems. It should also facilitate the collection, analysis and exchange of information, experience and good practice between States.



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