The Role of the Public Prosecutor in relation to the Execution of Sanctions
Chapter IV
The Role of the Public Prosecutor in relation to the Execution of Sanctions
Introduction
The implementation of a sentence is ensured by the court. Implementation proceedings are ruled by the Rules of Procedure for District and Regional Courts. This regulation emphasises the duty of the presiding judge (or single judge) at the court that decided about the criminal case in first instance to make sure that the judgment of the court, once it became enforceable, is executed without delay, and in accordance with the law. This in order to secure that execution of the sentence takes place as soon as possible after the crime was committed, thus achieving the purpose of the sentence.
The manner of serving the sentence of imprisonment is regulated by the Serving the Sentence of Imprisonment Act and its implementing regulation – Rules of Serving the Sentence of Imprisonment.
The involvement of the public prosecution service in the enforcement of sanctions
The public prosecutor has the right to complain against the decision of court on serving a sentence of imprisonment. This for example applies to decisions, by which the court permitted a suspension of imprisonment not exceeding one year. The court may suspend such sentence of imprisonment for important reasons, and up to three months from the day when the judgment imposing the sentence became effective. The public prosecutor can file a motion with the court to decide about a change in the manner of serving the sentence of imprisonment. The court can decide to change the manner of serving the sentence of imprisonment even without the motion, or on the proposal of the prison director or the convict himself. In addition, it is possible to interrupt the service of imprisonment for health reasons of the convict, releasing the convict from serving his term or its residue due to incurable fatal disease or incurable mental disease. The court hears the case in open court where the convict must be heard. The decision takes the form of judgment that can be appealed against.
The convict serves a community service order in the district of the District Court where he lives. An appointed probation and mediation officer exercises control over the service of the sentence of community service. The authority or institution, where the community service order is to be served, has the duty to report to the court that the convict does not do the designated work without serious reason, or that the convict has served community service order.
The public prosecutor does not exercise control over serving the community service order, but he has the right to complain against the decision of the court to suspend or interrupt the service or release the convict from serving the order.
The execution of pecuniary punishment takes place as follows: as soon as the judgment is enforceable, the court calls upon the convict to pay the pecuniary punishment in a timelimit of fifteen days and warns him that otherwise a fine default detention will be implemented. At the request of the convict, the court may permit postponement of the service of pecuniary punishment for up to three months or allow the convict to pay in instalments so that the entire pecuniary punishment is paid up within one year of the effective date of the judgment. This decision has a form of resolution that cannot be appealed against.
But if the court decides to release the convict from serving the pecuniary punishment or impose an alternative sentence of imprisonment, such resolutions can be appealed against with a suspensory effect.
The supervision of suspended or conditional sentences
In the case of a conditional sentence the court that decided in first instance is obliged to systematically supervise the behaviour of the conditionally convicted person in the probationary period. The court may transfer the supervision of the convict to a probation and mediation service officer. After the end of the probationary period, the court decides whether the conditionally convicted person made good or whether serving the conditionally suspended sentence shall be imposed. The court makes this decision in open court and the public prosecutor has the right to complain. If the public prosecutor gives his prior consent to decide that the conditionally convicted person made good, the court may decide outside the open court. The public prosecutor gives his prior consent to this procedure having reviewed the evidence of the convict’s behaviour in the probationary period.
The court may impose a conditional sentence of imprisonment on the convict. In the case of this sentence, as soon as the judgment has become effective, the court appoints a probation and mediation service officer to supervise behaviour of the convict. Whether the convict has made good in the probationary period or not, is then decided in the same way as in the case of the conditional sentence without supervision.
The court decides about conditional release from prison on the motion of an authorised person such as the public prosecutor, prison director, convict, legal representative of the convict or an association of citizens, or even without such motion. The court decides about the conditional release in open court. The decision has a form of judgment that can be appealed against. If the court decides about conditional release and orders supervision over the convict, further control over the convict is handed over to a probation and mediation service officer. When deciding whether the conditionally convicted person has made good in the probationary period or not, and whether he shall serve the residue of the term, the same rules applying to decisionmaking about making good in the probationary period of conditional sentence are used. The public prosecutor has the right to complain against the decision of the court. If the court decides about conditional release of the convict from prison with prior consent of the public prosecutor, no open court is needed. The public prosecutor may file a complaint against the statement of the length of probationary period.
In addition, the public prosecutor has the right to complain against the decision of the court to deduct the period custody from the sentence. The public prosecutor may propose the court not take the period of a stay in hospital outside the prison into account, for example when the convict has caused himself intentional bodily harm.
Pardon
Pardon is granted by the President of the Republic based on the right laid down in the Constitution. The President determines, in which cases the Minister of Justice may conduct proceedings of application for pardon and dismiss an unjustified application. The President may therefore conduct the entire proceedings of application for pardon by himself, or may supplement the results of investigation carried out by the Minister of Justice at his own discretion. By contrast, the Minister of Justice may conduct investigation in cases, to which applies the decision of the President about delegating the powers in proceedings to grant pardon. In such cases the Minister may issue a decision of refusal but is not allowed to grant pardon. If the Minister is convinced that there are reasons to grant pardon, he submits the case and his opinion to the President.
Based on the decision of the President to grant pardon, the investigative, prosecuting and adjudicating body does not issue its own decision not to commence, or to discontinue, criminal prosecution, but only carries out the President’s decision. The same holds true in the case the President of the Republic orders to release a convict from custody, or postpone the service of sentence. In such case, the Ministry of Justice takes the decision and informs the court of first instance (or the public prosecutor performing supervision).
The public prosecutor in pre-trial proceedings provides materials for the decision about the application for discontinuance of criminal prosecution by pardon. If the application for pardon was delivered right to the public prosecutor who supervises respecting legality in pre-trial proceedings, the public prosecutor shall inform the Ministry of Justice about it no later than five days of the delivery of application. The public prosecutor’s task is to ascertain personal, family and property situation and reputation of the accused as a citizen and clear up the truthfulness of alleged reasons for granting pardon. The chief public prosecutor submits the report of the result of investigation and his proposal along with the case file and newly acquired materials to the Ministry of Justice. If the public prosecutor arrives at a conclusion that the application should not be recommended, he forthwith gives a detailed report to the Ministry of Justice who will decide whether or not investigation should be performed.
If the application for pardon is dismissed, the public prosecutor, who provided materials for the decision, delivers the decision of the Minister of Justice to the applicant for pardon. If the pardon is granted, the public prosecutor delivers the decision to the accused.
If criminal prosecution is conditionally discontinued by pardon of the President of the Republic, the public prosecutor checks that this condition is complied with. The procedure is similar to the procedure of supervising the accused after the public prosecutor’s decision about conditional discontinuance of criminal prosecution. The public prosecutor informs the Ministry of Justice of the results of the supervision every six months during the probation term. If the offender does not comply with the condition for pardon, the public prosecutor carries out the necessary investigation outside the term of six months and submits the results of the investigation, along with the case file, to the Ministry of Justice. If the Ministry of Justice then communicates a decision to continue criminal prosecution, the public prosecutor issues a resolution containing a decision to continue criminal prosecution and sends a copy of the resolution to the Ministry of Justice.
The Role of the Public Prosecutor in relation to the Execution of Sanctions
Introduction
The implementation of a sentence is ensured by the court. Implementation proceedings are ruled by the Rules of Procedure for District and Regional Courts. This regulation emphasises the duty of the presiding judge (or single judge) at the court that decided about the criminal case in first instance to make sure that the judgment of the court, once it became enforceable, is executed without delay, and in accordance with the law. This in order to secure that execution of the sentence takes place as soon as possible after the crime was committed, thus achieving the purpose of the sentence.
The manner of serving the sentence of imprisonment is regulated by the Serving the Sentence of Imprisonment Act and its implementing regulation – Rules of Serving the Sentence of Imprisonment.
The involvement of the public prosecution service in the enforcement of sanctions
The public prosecutor has the right to complain against the decision of court on serving a sentence of imprisonment. This for example applies to decisions, by which the court permitted a suspension of imprisonment not exceeding one year. The court may suspend such sentence of imprisonment for important reasons, and up to three months from the day when the judgment imposing the sentence became effective. The public prosecutor can file a motion with the court to decide about a change in the manner of serving the sentence of imprisonment. The court can decide to change the manner of serving the sentence of imprisonment even without the motion, or on the proposal of the prison director or the convict himself. In addition, it is possible to interrupt the service of imprisonment for health reasons of the convict, releasing the convict from serving his term or its residue due to incurable fatal disease or incurable mental disease. The court hears the case in open court where the convict must be heard. The decision takes the form of judgment that can be appealed against.
The convict serves a community service order in the district of the District Court where he lives. An appointed probation and mediation officer exercises control over the service of the sentence of community service. The authority or institution, where the community service order is to be served, has the duty to report to the court that the convict does not do the designated work without serious reason, or that the convict has served community service order.
The public prosecutor does not exercise control over serving the community service order, but he has the right to complain against the decision of the court to suspend or interrupt the service or release the convict from serving the order.
The execution of pecuniary punishment takes place as follows: as soon as the judgment is enforceable, the court calls upon the convict to pay the pecuniary punishment in a timelimit of fifteen days and warns him that otherwise a fine default detention will be implemented. At the request of the convict, the court may permit postponement of the service of pecuniary punishment for up to three months or allow the convict to pay in instalments so that the entire pecuniary punishment is paid up within one year of the effective date of the judgment. This decision has a form of resolution that cannot be appealed against.
But if the court decides to release the convict from serving the pecuniary punishment or impose an alternative sentence of imprisonment, such resolutions can be appealed against with a suspensory effect.
The supervision of suspended or conditional sentences
In the case of a conditional sentence the court that decided in first instance is obliged to systematically supervise the behaviour of the conditionally convicted person in the probationary period. The court may transfer the supervision of the convict to a probation and mediation service officer. After the end of the probationary period, the court decides whether the conditionally convicted person made good or whether serving the conditionally suspended sentence shall be imposed. The court makes this decision in open court and the public prosecutor has the right to complain. If the public prosecutor gives his prior consent to decide that the conditionally convicted person made good, the court may decide outside the open court. The public prosecutor gives his prior consent to this procedure having reviewed the evidence of the convict’s behaviour in the probationary period.
The court may impose a conditional sentence of imprisonment on the convict. In the case of this sentence, as soon as the judgment has become effective, the court appoints a probation and mediation service officer to supervise behaviour of the convict. Whether the convict has made good in the probationary period or not, is then decided in the same way as in the case of the conditional sentence without supervision.
The court decides about conditional release from prison on the motion of an authorised person such as the public prosecutor, prison director, convict, legal representative of the convict or an association of citizens, or even without such motion. The court decides about the conditional release in open court. The decision has a form of judgment that can be appealed against. If the court decides about conditional release and orders supervision over the convict, further control over the convict is handed over to a probation and mediation service officer. When deciding whether the conditionally convicted person has made good in the probationary period or not, and whether he shall serve the residue of the term, the same rules applying to decisionmaking about making good in the probationary period of conditional sentence are used. The public prosecutor has the right to complain against the decision of the court. If the court decides about conditional release of the convict from prison with prior consent of the public prosecutor, no open court is needed. The public prosecutor may file a complaint against the statement of the length of probationary period.
In addition, the public prosecutor has the right to complain against the decision of the court to deduct the period custody from the sentence. The public prosecutor may propose the court not take the period of a stay in hospital outside the prison into account, for example when the convict has caused himself intentional bodily harm.
Pardon
Pardon is granted by the President of the Republic based on the right laid down in the Constitution. The President determines, in which cases the Minister of Justice may conduct proceedings of application for pardon and dismiss an unjustified application. The President may therefore conduct the entire proceedings of application for pardon by himself, or may supplement the results of investigation carried out by the Minister of Justice at his own discretion. By contrast, the Minister of Justice may conduct investigation in cases, to which applies the decision of the President about delegating the powers in proceedings to grant pardon. In such cases the Minister may issue a decision of refusal but is not allowed to grant pardon. If the Minister is convinced that there are reasons to grant pardon, he submits the case and his opinion to the President.
Based on the decision of the President to grant pardon, the investigative, prosecuting and adjudicating body does not issue its own decision not to commence, or to discontinue, criminal prosecution, but only carries out the President’s decision. The same holds true in the case the President of the Republic orders to release a convict from custody, or postpone the service of sentence. In such case, the Ministry of Justice takes the decision and informs the court of first instance (or the public prosecutor performing supervision).
The public prosecutor in pre-trial proceedings provides materials for the decision about the application for discontinuance of criminal prosecution by pardon. If the application for pardon was delivered right to the public prosecutor who supervises respecting legality in pre-trial proceedings, the public prosecutor shall inform the Ministry of Justice about it no later than five days of the delivery of application. The public prosecutor’s task is to ascertain personal, family and property situation and reputation of the accused as a citizen and clear up the truthfulness of alleged reasons for granting pardon. The chief public prosecutor submits the report of the result of investigation and his proposal along with the case file and newly acquired materials to the Ministry of Justice. If the public prosecutor arrives at a conclusion that the application should not be recommended, he forthwith gives a detailed report to the Ministry of Justice who will decide whether or not investigation should be performed.
If the application for pardon is dismissed, the public prosecutor, who provided materials for the decision, delivers the decision of the Minister of Justice to the applicant for pardon. If the pardon is granted, the public prosecutor delivers the decision to the accused.
If criminal prosecution is conditionally discontinued by pardon of the President of the Republic, the public prosecutor checks that this condition is complied with. The procedure is similar to the procedure of supervising the accused after the public prosecutor’s decision about conditional discontinuance of criminal prosecution. The public prosecutor informs the Ministry of Justice of the results of the supervision every six months during the probation term. If the offender does not comply with the condition for pardon, the public prosecutor carries out the necessary investigation outside the term of six months and submits the results of the investigation, along with the case file, to the Ministry of Justice. If the Ministry of Justice then communicates a decision to continue criminal prosecution, the public prosecutor issues a resolution containing a decision to continue criminal prosecution and sends a copy of the resolution to the Ministry of Justice.
