House Arrest with Electronic Monitoring and Placement Under Electronic Surveillance: Explanations from the Ministry of Justice

For a better appropriation of the conditions and methods of application of House arrest with electronic surveillance (Arse) and Placement under electronic surveillance (Psse), the Ministry of Justice has published a circular for the benefit of all actors affected by the implementation of these measures.

El Hadji Malick Ndiaye, communications officer of the Pastef party, was placed under judicial control accompanied by the wearing of the electronic bracelet. If two defendants were placed under electronic bracelet Wednesday by the Court of Pikine-Guédiawaye, the measures have been extended in recent days to several people arrested on the sidelines of the events of March 16. If some in the midst of the Pastef party denounce this measure, the circular of the Ministry of Justice containing the legal and regulatory provisions relating to House arrest with electronic surveillance (Arse) and Placement under electronic surveillance (Psse) is unequivocal on the conditions of its wear:  As such, the document states that there must be “an expression of will”.

Thus, it is explained that « the principle of wearing an electronic bracelet presupposes the agreement of the person concerned in the case of an adult » and « for a minor, the agreement of their father or mother or the person ensuring their care is necessary ».  On the legal basis, the ministry recalled that « the need to obtain this consent is enshrined in articles 44-10 of the Penal Code and 707-38 of the Code of Criminal Procedure for convicts ».

With regard to the accused, they added, « it stems from article 138-2 of the CPP which, for the terms of its execution, refers to article 707-38 of the same code ». Likewise, it is also specified that in all cases, “the consent of the owner or the holder of the rental contract must be obtained for the persons to be assigned to the home of others”.

With regard to the justifying reasons, it is noted in the circular that to “benefit from a measure of Arse or Psse, the person must appear before the competent judicial authority or at the hearing unless duly established impossibility (art 707-39 of the Cpp)”.  This provision, informs the circular, « applies as much to the condemned as to the accused ». In addition, it specifies that « the placement measure must take into account his family situation, his advanced age, the need for him to undergo medical treatment, a professional activity, education or training… ».

In addition to the subjective conditions common to the Arse and the Psse, there are objective ones. With regard to these conditions, the authors of the document inform that they « mainly relate to the technical feasibility of the placement measure, which requires the availability of equipment, a home or a fixed residence, but also the compatibility of wearing the bracelet with the health of the person concerned ».

The circular also returned to the conditions specific to the Arse, specifying that this measure « is a bit like the warrant of committal applicable to the accused incurring a custodial sentence of more than three years ». According to the services of the department headed by Ismaïla Madior Fall, « it is also applicable, regardless of the length of the prison sentence incurred, to the accused who have been previously convicted of a crime or to a prison sentence of more than three months without suspension, for an offense under common law”.

The Psse Framed for Those Convicted of Embezzlement of Public Funds or Customs Offences

What about the specific conditions for the Psse? The Ministry of Justice explains in its document that this measure « can take place during the pronouncement of the sentence or at the time of its execution, even if it is framed for those convicted of embezzlement of public funds or customs offences ». Moreover, for the latter case, it is specified that « persons convicted of embezzlement of public funds can only benefit from placement under electronic surveillance if they have reimbursed or returned the full amount of the misappropriated or subtracted value, and those convicted for customs offences, only after payment of the value of the object of the fraud and, if necessary, of all the duties and taxes due (art.44-2 al.3 of the Cp)”.

However, it should be specified that for the Psse to be able to intervene during the pronouncement of the sentence, « the sentence would have to be a prison sentence equal to or less than three years (art. 44-9 of the Cp), or a suspended prison sentence, the fixed part of which is less than or equal to three years”. Taking this aspect into account, the Ministry of Justice maintains that “we thus understand that the trial court must first pronounce the sentence and then decide that it will be executed under the system of placement under electronic surveillance”.

It should be noted that if the Psse must intervene during the execution of the sentence, in this case it « applies to convicts who have yet to serve a deprivation of liberty whose duration is equal to at least 6 months, and does not exceed one year (art. 707-37 al.1 CPP)”.

However, the authors of the document stated that « it applies without taking into account the remainder of the sentence to be served, to any one sentenced for the need of medical treatment or in view of his advanced age (art. 707 al. 2 Cpp )”.

Another aspect specified in the document is the monitoring of the electronic surveillance measure. On this point, it is stated that « the public prosecutor may at any time during the execution of the Arse or Psse decision request that the investigating judge or the sentence enforcement judge, as the case may be, modify the methods of implementation of the measure”. According to the Ministry of Justice, “they can also request its revocation in the event the person concerned violates one of their obligations”.

By Dieynaba Kane / dkane@lequotidien.sn