What is the removal of probation?
Probation is a sanction that seeks to reduce the risk that the convicted person will continue to commit crimes. The person sentenced to probation is under supervision for one year and must then meet a supervisor regularly. A probation officer also has a probationary period of three years when the convicted person must take care of himself. When a convicted person has been sentenced to probation, it is often the case that this probation is carried out. Sometimes, however, it can be the case that the convicted person mismanages this probation – then it may be relevant to remove, ie. remove probation, and replace probation with a prison sentence.
The requirements for removing a probation supervisor are that the convicted person has seriously breached his or her duties and it can be assumed that such measures that the Supervisory Board may take will be ineffective (ie warning). It is the prosecutor who normally sees such an action for removal.
If probation is removed, the court shall determine another sanction for the crime and then take reasonable account of what the convicted person has undergone as a result of the sentence of probation and of the fine or imprisonment imposed. In such a case, the court may sentence to imprisonment for a shorter period than what is prescribed for the crime.
How do you argue as a lawyer?
As a lawyer in a case concerning the removal of probation, you usually want the probation to last, so that it is not replaced by a prison sentence. It is often a question of pointing out in writing to the court why someone did not misbehave, that there were excuses for the behavior, and trying to shorten the prison sentence that may be imposed. You are then called to a hearing in court, where you and the client try to get the court to change their attitude and retain probation, as probation is to be regarded as a milder punishment than imprisonment.
Miss or miss meetings
It seems in case law that repeated missed meetings with Frivården (without a valid reason) can actualize a removal. Absence from a single meeting, however, according to the case NJA 2011 p. 511 is not serious negligence. As I said, serious negligence is required for an elimination. To be absent from meetings repeatedly is normally considered serious. As well as not participating in the treatment according to the treatment plan or interrupting the treatment.
In case law, there are cases where the Court of Appeal (the court) has changed the district court's decision, and instead extended the supervision and not removed the probation supervision. It has been a question of using ex. assisted living or short-term housing has come from a difficult socially vulnerable situation and at the time of the verdict there have been new conditions, for example that one has come away from abuse and received an orderly housing situation. In that case, the court has considered that the supervision can be extended as the measures that the Supervisory Board would take cannot be excluded would be without effect. Otherwise, there are other legal cases where personal reasons have been taken into account in practice, e.g. sick leave, serious illness of a relative and other personal reasons can be taken into account.
In many cases it is possible to avoid that probation is replaced by a prison sentence, in other cases it is not successful. However, it is usually possible to shorten the length of the prison sentence that is imposed. In a case like this, you as a client are always assigned a lawyer who represents you in the case before the court. If you want, you can wish for some of our skilled lawyers.
Here we address some interesting lawsuits regarding probation and elimination:
NJA 2011 pp. 511
One person was absent from a meeting with Frivården, and actually two more, but then he had said that he was ill but did not call until the following day, and once he had simply called the wrong person the following days, this was considered mitigating and probation was maintained.
Ö 5578-18 Court of Appeal for Western Sweden
At the hearing in the Court of Appeal, the person had arranged his housing situation and thus his addiction. The Court of Appeal saw this as positive changes. Despite missed meetings and negligence in following the probation supervision before, the Court of Appeal changes the district court's judgment and does not remove the probation supervision. Here, only the housing situation has come into play.
Ö 3023-18 Court of Appeal over Skåne and Blekinge
Been in short-term housing for two months and recovered from his addiction during this period. Despite previous negligence with the probation supervision, the Court of Appeal changes the district court's ruling and decides that the supervision shall continue and that the probation supervision shall not be removed. This is where the accommodation and more orderly situation came into play.
The person had been given a supported housing and a more orderly situation. But still abuse. Therefore, there are no conditions for not removing the probation supervision. This could possibly have gone differently if he continued to be polite and not abused. So I still interpret it as that missed meetings that are associated with a difficult housing situation can be cured.
RH 2001: 68
Lack of interest in attending meetings, no other valid reason – 4 missed meetings: Conditional sentence with community service removed because the convicted person did not contribute to the establishment of a work plan for community service. In the present case, the Swedish Prison and Probation Service has on three occasions called in writing to meetings at Frivården and also once a scheduled meeting with convicts by telephone. The convicted person has not attended any of these meetings. The explanations that the summonses – with the exception of one – as a result of the mail handling did not reach him are not credible.
RH 2002: 52
Serious illness of a close relative of the convicted person, which means that the convicted person alone is forced to take care of a small child, should for a limited time be able to constitute a valid obstacle to performing community service (see NJA II 1998 p. 411). If, on the other hand, such an obstacle were to become more long-lasting, it should be up to the convicted person to resolve the situation, e.g. by arranging a preschool place or otherwise ensuring that he can perform the condemned community service.