Informed consent as a requirement for probation work with (in)voluntary clients: Probationers’ and probation officers’ perspectives
| DOI | 10.1177/2066220314549525 |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| Subject Matter | Articles |
European Journal of Probation
2014, Vol. 6(3) 260 –277
© The Author(s) 2014
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DOI: 10.1177/2066220314549525
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Informed consent as a
requirement for probation
work with (in)voluntary clients:
Probationers’ and probation
officers’ perspectives
Ines Sučić
Institute of Social Sciences Ivo Pilar, Zagreb, Croatia
Neven Ricijaš
University of Zagreb, Croatia
Renata Glavak-Tkalić
Institute of Social Sciences Ivo Pilar, Zagreb, Croatia
Abstract
Offenders’ consent is incorporated in Croatian legislation as a necessary element for
the execution of probation measures and sanctions. However, legal provisions, which
are in accordance with contemporary European recommendations, provide only a basic
framework for the implementation of such measures and sanctions. In this article, we
argue that some elements of consent may be questionable and that changes to related
practices are possible. After describing legal documents on this topic, we present the
results of focus groups with probation officers and probationers with regard to the
implementation of consent. Their perceptions and personal experiences provided us
with valuable insights about and for practice and served as additional support for future
recommendations.
Keywords
Probation, community sanctions, consent, involuntary clients, suspended sentence,
offender supervision
Corresponding author:
Ines Sučić, Institute of Social Sciences Ivo Pilar, Marulićev trg 19/1, 10 000 Zagreb, Croatia.
Email: ines.sucic@pilar.hr
549525EJP0010.1177/2066220314549525European Journal of ProbationSučič et al.
2014
Article
Sučić et al. 261
Introduction
The European Probation Rules (Council of Europe’s Rec, 2010) define probation as an
implementation of community measures and sanctions that includes a range of activities
and interventions (like supervision, guidance and assistance) aiming at the social inclu-
sion of an offender. Croatia has an almost 100-year-old legislative basis for implement-
ing such probation sanctions. The Criminal Code from 1922 provided an opportunity for
imposing protective supervision on offenders receiving suspended sentences (Uzelac,
2002), but throughout the years, only the ‘simple’ (unsupervised) suspended sentence
became a regular community sanction; protective supervision was not implemented until
the end of 2001 when new legislative and organizational possibilities existed. At that
time, probation officers were so-called probation commissioners who performed their
activities as part-time work (Šimpraga et al., 2014). Full professionalization of the proba-
tion system started in 2009, with implementation of a specific Law on Probation (2009)
and the establishment of the first probation officers (Kovčo Vukadin et al., 2009). In
2013, a wider reform of criminal laws (sanctions and procedures) was made, with imple-
mentation of a new Criminal Code (Official Gazette, 125/11, 144/12), a new Criminal
Procedure Act (Official Gazette, 152/08, 76/09, 80/11, 121/11, 91/12, 143/12, 56/13,
145/13) and a new Law on Probation (Official Gazette, 143/12).
The fundamental values of Croatian criminal law legislation are being harmonized
with international conventions, standards and European recommendations. Criminal
process, organization and implementation of probation sanctions through legal provi-
sions were therefore guided by Council of Europe’s Recommendations No. R(92)16 on
Community Sanction and Measures (ERCSM), Recommendation Rec(200)22 on
Improving the Implementation of the European Rules on Community Sanctions and
Measures (ERII-ERCSM) and European Rec(2010)1 on Probation Rules (ERProb).
Offenders’ (informed) consent is one standard that is also important when implementing
probation sanctions.
In order to understand consent and the modalities of its implementation, different
definitions and types of consent will be discussed, together with a brief legislative intro-
duction to community (probation) measures and sanctions in Croatia. Broadly defined,
we can differentiate between (1) implied or nominal, hypothetical, passive consent and
(2) informed or active consent. Implied consent1 is not explicitly granted by a person,
but inferred from a person’s action, or even by a person’s silence or inaction. In some
cases, the courts conclude that the absence of a specific objection at the trial level con-
stitutes a waiver of the defendant’s right to challenge a probation condition. Thus, there
is just the nominal or hypothetical nature of any purported consent to probation condi-
tions negotiated under the threat of incarceration (Hucklesby, 2009: 86–87). On the
other hand, informed consent2 requires provision of approval or agreement, particularly
and especially after thoughtful consideration granted in full knowledge of the possible
consequences (Faden and Beauchamp, 1986; Morgenstern and Larrauri, 2013). Consent
can be regarded as related to voluntarism, which refers to respecting the offender’s deci-
sion on whether he/she needs support and requests help (Morgenstern and Larrauri,
2013: 148). In relation to probation, in some instances, the courts find that by accepting,
or consenting to the conditions of probation, a defendant has forfeited the right
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