Supervisory measures as an alternative to pre-trial detention

On 1 November 2013, the Act of 5 June 2013 implementing Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention entered into force (Official Gazette 2013, 250).

In summary, the Framework Decision contains the following regime.

A decision imposing obligations (control measures) on a suspect in one Member State of the European Union as an alternative to pre-trial detention or as a condition of suspension of pre-trial detention may be sent to another Member State of the European Union (by means of the so-called certificate) if the suspect has his permanent residence or domicile in that Member State.

If a Member State receives such a decision, it is, in principle, obliged to recognise the decision and monitor compliance with the obligations imposed on the suspect. The manner in which such monitoring is carried out shall be governed by the law of the Member State where the monitoring is carried out.

The Member State in which the criminal proceedings take place shall remain competent to take all decisions relating to pre-trial detention. If the suspected or accused person does not comply with the obligations, he may be arrested and surrendered to the Member State where the criminal trial takes place on the basis of a European Arrest Warrant.

The regime set out in the Framework Decision covers the following supervision measures imposed on the suspect:

• the order to inform a particular authority of any change of residence or domicile;
• the prohibition to enter certain sites, places or demarcated areas;
• the commandment to be present at a certain location at certain times or for a certain period of time;
• the limitation of the right to leave the executing Member State;
• the order to report to a certain authority at certain times (obligation to report);
• the prohibition to make contact, or have contact, with certain persons or institutions (prohibition of contact).

The Framework Decision also provides for the possibility for a Member State to indicate which obligations, other than those mentioned above, can be monitored. The Framework Decision lists some of these obligations: the prohibition to carry out certain activities, a driving ban, the lodging of a deposit, the obligation to undergo therapy or addiction treatment and the obligation to avoid contact with certain objects related to the alleged offences. Each Member State may thus itself extend the scope of the Framework Decision by designating more surveillance measures.

The Netherlands has designated undergoing Electronic Surveillance as a supervisory measure that can be carried out in the Netherlands.

The new law is regulated in Title 3 of the Fifth Book of the Code of Criminal Procedure.