Study on minimum sanctions in the EU Member States

Minimum sanctions are understood as minimum levels of fines and imprisonment that should be imposed by a court when a person is held liable for a criminal offence. The study is concentrating on minimum sanctions depending on the severity of the offence. Apart from NL, all Member States provide for minimum sanctions in their laws. There are big differences between the Member States, both between the sanctioning systems and the levels of minimum sanctions. In the majority of the Member States minimum imprisonment sanctions are foreseen for many offences and form an integral part of the sanctioning system. Some states, however, regard minimum sanctions as a far-reaching restriction of the free discretion of judges and provide for minimum sanctions only for a few offences. Only a few Member States provide for specific minimum levels for financial penalties.

In all Member States there are various mechanisms to impose penalties below the minimum level provided for by law. For this purpose, there are in many Member States different sentencing regimes for special groups. These regimes provide for lower or no minimum levels for imprisonment sanctions. In some Member States minimum sanctions are inadmissible for juveniles in certain cases. Furthermore, all legal systems contain specific/general provisions according to which judges may or have to impose a lower sentence than the minimum penalty. Such provisions are mostly found in substantive law (e.g. provisions on mitigating circumstances), but a few Member States also have such provisions in procedural law. Mitigating circumstances taken into consideration are largely the same in all Member States, but they are not always listed in the laws. If they are, the list is often not exhaustive or there is a “catch-all clause” allowing for more flexibility. Systems, which do not know a “catch-all clause” and have a list of exhaustive mitigating circumstances, are EE, DE, HR, HU, PL and SK. In some Member States there is a wide discretion as to the individualisation of penalty where mitigating circumstances are present, but in many Member States the criminal code itself determines the level of reduction.

Another way to avoid the (full) execution of minimum sanctions are alternatives to (the execution of) imprisonment sentences. The most common option is to suspend the execution of the sentence. Other alternatives include fines, community services or home confinement. Furthermore, almost all prisoners have a possibility to be released before the end of their imprisonment term.

The statistical analysis has been based on a mixture of statistical data, samplings of court judgements and perception of practitioners. For most offences no clear relation between the level of minimum sanctions and the imposition of sanctions across Member States can be seen. In relation to deterrence, there is a wide agreement among experts that there is no relation between minimum sanctions and deterrence. It has also been noted that the implementation of minima by politicians is mainly motivated by a desire to demonstrate a tough line in the fight against crime.