The Role of the State Prosecutor in Relation to the Enforcement of Sanctions
Chapter IV
The Role of the State Prosecutor in Relation to the Enforcement of Sanctions
The state prosecutor has only limited competences in relation to the enforcement of penal sanctions. Enforcing penal sanctions is part of criminal law. It is regulated overall by the Enforcement of Penal Sanctions Act (EPSA), which took effect on April 9, 2000. In terms of content, the act is linked to the Penal Code (PC), the Criminal Procedure Act (CCP), the Minor Offences Act (MOA) and the Criminal Liability of Legal Entities Act (CLLEA). The Penal Sanctions Act deals with sentences passed in a criminal procedure, sentences passed in procedures of minor offences, and sentences passed on legal entities and the enforcement of other penal sanctions and it also deals with the administrative organisation of the bodies for the enforcement of penal sanctions.
Sanctions relate primarily to penal sanctions, the most important of which, a prison sentence, directly affects a fundamental human right, i.e., the right to freedom. The PC, however, also specifies as sanctions a fine, a ban on driving a motor vehicle and the expulsion of an alien from the state. Admonitory sanctions include statutorily regulated conditional sentence, conditional sentence with security supervision and a judicial warning.
In addition, a perpetrator of crimes can also be sentenced to security measures such as compulsory psychiatric treatment and protection in a health institute, compulsory out-patient psychiatric treatment, compulsory treatment of alcoholics and drug addicts, a ban on performing a profession, removal of driving license and confiscation of items.
Finally, there are also educational measures and sanctions for juveniles. Educational measures include reprimand, instructions and prohibitions, supervision by a social care body, committal to an educational institution, committal to a juvenile correction home and committal to a training institution. Punishment is intended only for senior juveniles, and they may be sentenced to a fine or to a prison sentence in a juvenile prison.
Prison sentences are served in six prison institutions, in which convicted persons serve sentences from one to twenty or thirty years. There exists a special women’s prison for all lengths of sentence and a prison institution for young offenders. All these are national institutions. Convicted persons serve prison sentences up to eighteen months in regional prisons. There are three regional prisons. Each prison has open, semi-open and closed departments. In organisational terms, prisons operate within the framework of the Prison Administration, which is a body within the Ministry of Justice. A juvenile correction home also operates within the framework of this administration, to which young persons sentenced to the educational measure of committal to a correction home are sent.
Each convicted person is dealt with in accordance with the penal law classification. They are divided into horizontal and vertical classifications. The horizontal classification is a classification of penal institutions based on the following criteria: length of sentence (institutions for long and institutions for short sentences), gender (institutions for women and for men or for both), age of convict (institutions for adults and institutions for juveniles and young adults) and security level (closed, semi-open and open institutions). The penal law classification does not divide institutions in terms of the type of crime and criminal record, for example, first offenders and recidivists.
A vertical classification of convicted persons exists according to the criterion of a need for more or less closed or secure conditions. All institutions thus have closed, semi-open, and open departments. Regimes in departments vary mainly in the level of restriction of freedom of convicts included.
The court’s role
The courts have the most important role in relation to enforcement of penal sanctions. A court enforces a finally binding and executable judgement ex officio. The court that issued the judgement at first instance is responsible for ensuring enforcement of the final judgement.
When a particular person has been sentenced to a prison term and is at liberty he is summoned by the district court on the territory of which the convict has permanent or temporary residence to serve sentence immediately, and not later than eight days after receipt of the executable decision. A convicted person who is without permanent or temporary residence is summoned to serve a prison sentence by the district court under whose jurisdiction the court that issued the judgement at first instance falls. A convicted person who is in prison is summoned to serve sentence by the district court within whose territory he is serving sentence. A convicted person who is under house arrest is summoned to serve a prison sentence by the district court on whose territory he is serving house arrest (sects. 18 and 19 EPSA).
The institution of a deferred prison sentence is regulated individually. In addition to other subjects who may request deferment of a prison sentence, the state prosecutor can do so in cases in which he files a request for retrial or a request for the protection of legality. The court of jurisdiction decides on the prosecutor’s request and can defer enforcement of sentence. The deferment lasts until such time as the state prosecutor reports to the court of jurisdiction that enforcement of sentence can begin, or until a new decision of the court is issued (sect. 27 EPSA).
The court of jurisdiction must ex officio take care that enforcement of sentence does not become subject to the statute of limitations. When the court finds by decision that enforcement of sentence has become statute-barred, it issues a decision, which it also sends to the state prosecutor, who has the right to appeal against such a decision.
Release decisions
The state prosecutor has an important role in deciding on conditional release, a release on parole of a convicted person from serving a prison sentence. Release on parole is the legally envisaged possibility that a convict can be conditionally released from further serving sentence if he has already served a prescribed part of the sentence and if, on the basis of his behaviour in the institution and other circumstances, there is the well-founded expectation that she or he will not repeat the crimes. Both formal and material conditions must be met for conditional release. A convict can be released after he has served half of a prison sentence. If a convict has been sentenced to more than fifteen years in prison, he may be released when he has served three quarters of the sentence. Exceptionally, a convict may be conditionally released when he has served only one third of the sentence if special circumstances exist relating to his or her personality demonstrating that he will not repeat the crime. A senior juvenile serving sentence in a juvenile prison can be conditionally released after having served one third of a sentence, but not before having spent at least six months in the juvenile prison. In addition to these formal conditions, the material condition must be met that it is possible to expect on good grounds that the convict will not repeat the crime, in which is taken into account mainly recidivism, possible criminal procedures which are taking place against a convict for crimes committed before starting the prison sentence, attitude of the convict to the crime committed and the injured party, his behaviour while serving sentence, success in the area of treatment of addiction and conditions for inclusion in normal life at liberty (sect. 109 CCP).
A commission for conditional release decides about conditional release. The minister responsible for justice appoints the president of the commission, his deputy and members of the commission and their deputies, from among Supreme Court judges, Supreme Court state prosecutors and personnel of the ministry responsible for justice. The commission decides in a panel of three (sect. 105 EPSA).
The state prosecutor has an important role in extraordinary mitigation of penalty. A request for extraordinary mitigation of penalty is a special extraordinary appeal by which, on the basis of new mitigating circumstances, a final judgement of conviction is changed only into a decision on sentence; in such a way that a lower sentence is passed on the convicted person or a less severe sanction is passed on him. Mitigation of final sentence is allowed if after final judgment, circumstances appear that were not available when sentence was passed or the court was unaware of them, but would clearly have led to a milder sentence (Sect. 417 CCP). In addition to the convicted person himself, his advocate and his family, who may also appeal on his behalf, the state prosecutor can also request extraordinary mitigation of penalty. Both the state prosecutor who handled the case at first instance, who can present his opinion on filing a request for extraordinary mitigation of penalty, and the supreme court state prosecutor, who appears before the Supreme Court and to whom the Supreme Court sends the record prior to deciding in order for him to put forward his proposal, take part in the procedure of hearing and deciding on the matter.
The state prosecutor has some further competences in connection with the enforcement of other penal sanctions. He can be present when a court adopts a new decision in relation to the duration and changing of security measures of compulsory psychiatric treatment and protection in a health institution or compulsory psychiatric treatment at liberty, he can be present when a court decides on the revoking of a conditional sentence if, in the operative part of the conditional judgement, the accused was required to undergo treatment at liberty but did not start this treatment or arbitrarily abandoned the treatment (sect. 497 CCP), he can propose revoking a conditional sentence in which it was specified that sentence will be imposed if the convicted person does not return the material benefit, does not compensate damages or does not fulfil other obligations, and the convicted person does not do this within a specific time limit (sect. 506 CCP). He can give his opinion, and exercise the right to appeal, in relation to erasure of a judgement from criminal records, in relation to the erasure of a conditional sentence and in relation to the ending of security measures of a prohibition on performing a profession, removal of a driving licence and cessation of the legal consequences of a sentence (sects. 509-513 CCP).
The state prosecutor does not have other competences in connection with enforcement of sanctions. Supervision of prison institutions is performed by the Ministry of Justice and presidents of district courts within whose territorial jurisdiction the institution is located (sect. 212 EPSA).
The Role of the State Prosecutor in Relation to the Enforcement of Sanctions
The state prosecutor has only limited competences in relation to the enforcement of penal sanctions. Enforcing penal sanctions is part of criminal law. It is regulated overall by the Enforcement of Penal Sanctions Act (EPSA), which took effect on April 9, 2000. In terms of content, the act is linked to the Penal Code (PC), the Criminal Procedure Act (CCP), the Minor Offences Act (MOA) and the Criminal Liability of Legal Entities Act (CLLEA). The Penal Sanctions Act deals with sentences passed in a criminal procedure, sentences passed in procedures of minor offences, and sentences passed on legal entities and the enforcement of other penal sanctions and it also deals with the administrative organisation of the bodies for the enforcement of penal sanctions.
Sanctions relate primarily to penal sanctions, the most important of which, a prison sentence, directly affects a fundamental human right, i.e., the right to freedom. The PC, however, also specifies as sanctions a fine, a ban on driving a motor vehicle and the expulsion of an alien from the state. Admonitory sanctions include statutorily regulated conditional sentence, conditional sentence with security supervision and a judicial warning.
In addition, a perpetrator of crimes can also be sentenced to security measures such as compulsory psychiatric treatment and protection in a health institute, compulsory out-patient psychiatric treatment, compulsory treatment of alcoholics and drug addicts, a ban on performing a profession, removal of driving license and confiscation of items.
Finally, there are also educational measures and sanctions for juveniles. Educational measures include reprimand, instructions and prohibitions, supervision by a social care body, committal to an educational institution, committal to a juvenile correction home and committal to a training institution. Punishment is intended only for senior juveniles, and they may be sentenced to a fine or to a prison sentence in a juvenile prison.
Prison sentences are served in six prison institutions, in which convicted persons serve sentences from one to twenty or thirty years. There exists a special women’s prison for all lengths of sentence and a prison institution for young offenders. All these are national institutions. Convicted persons serve prison sentences up to eighteen months in regional prisons. There are three regional prisons. Each prison has open, semi-open and closed departments. In organisational terms, prisons operate within the framework of the Prison Administration, which is a body within the Ministry of Justice. A juvenile correction home also operates within the framework of this administration, to which young persons sentenced to the educational measure of committal to a correction home are sent.
Each convicted person is dealt with in accordance with the penal law classification. They are divided into horizontal and vertical classifications. The horizontal classification is a classification of penal institutions based on the following criteria: length of sentence (institutions for long and institutions for short sentences), gender (institutions for women and for men or for both), age of convict (institutions for adults and institutions for juveniles and young adults) and security level (closed, semi-open and open institutions). The penal law classification does not divide institutions in terms of the type of crime and criminal record, for example, first offenders and recidivists.
A vertical classification of convicted persons exists according to the criterion of a need for more or less closed or secure conditions. All institutions thus have closed, semi-open, and open departments. Regimes in departments vary mainly in the level of restriction of freedom of convicts included.
The court’s role
The courts have the most important role in relation to enforcement of penal sanctions. A court enforces a finally binding and executable judgement ex officio. The court that issued the judgement at first instance is responsible for ensuring enforcement of the final judgement.
When a particular person has been sentenced to a prison term and is at liberty he is summoned by the district court on the territory of which the convict has permanent or temporary residence to serve sentence immediately, and not later than eight days after receipt of the executable decision. A convicted person who is without permanent or temporary residence is summoned to serve a prison sentence by the district court under whose jurisdiction the court that issued the judgement at first instance falls. A convicted person who is in prison is summoned to serve sentence by the district court within whose territory he is serving sentence. A convicted person who is under house arrest is summoned to serve a prison sentence by the district court on whose territory he is serving house arrest (sects. 18 and 19 EPSA).
The institution of a deferred prison sentence is regulated individually. In addition to other subjects who may request deferment of a prison sentence, the state prosecutor can do so in cases in which he files a request for retrial or a request for the protection of legality. The court of jurisdiction decides on the prosecutor’s request and can defer enforcement of sentence. The deferment lasts until such time as the state prosecutor reports to the court of jurisdiction that enforcement of sentence can begin, or until a new decision of the court is issued (sect. 27 EPSA).
The court of jurisdiction must ex officio take care that enforcement of sentence does not become subject to the statute of limitations. When the court finds by decision that enforcement of sentence has become statute-barred, it issues a decision, which it also sends to the state prosecutor, who has the right to appeal against such a decision.
Release decisions
The state prosecutor has an important role in deciding on conditional release, a release on parole of a convicted person from serving a prison sentence. Release on parole is the legally envisaged possibility that a convict can be conditionally released from further serving sentence if he has already served a prescribed part of the sentence and if, on the basis of his behaviour in the institution and other circumstances, there is the well-founded expectation that she or he will not repeat the crimes. Both formal and material conditions must be met for conditional release. A convict can be released after he has served half of a prison sentence. If a convict has been sentenced to more than fifteen years in prison, he may be released when he has served three quarters of the sentence. Exceptionally, a convict may be conditionally released when he has served only one third of the sentence if special circumstances exist relating to his or her personality demonstrating that he will not repeat the crime. A senior juvenile serving sentence in a juvenile prison can be conditionally released after having served one third of a sentence, but not before having spent at least six months in the juvenile prison. In addition to these formal conditions, the material condition must be met that it is possible to expect on good grounds that the convict will not repeat the crime, in which is taken into account mainly recidivism, possible criminal procedures which are taking place against a convict for crimes committed before starting the prison sentence, attitude of the convict to the crime committed and the injured party, his behaviour while serving sentence, success in the area of treatment of addiction and conditions for inclusion in normal life at liberty (sect. 109 CCP).
A commission for conditional release decides about conditional release. The minister responsible for justice appoints the president of the commission, his deputy and members of the commission and their deputies, from among Supreme Court judges, Supreme Court state prosecutors and personnel of the ministry responsible for justice. The commission decides in a panel of three (sect. 105 EPSA).
The state prosecutor has an important role in extraordinary mitigation of penalty. A request for extraordinary mitigation of penalty is a special extraordinary appeal by which, on the basis of new mitigating circumstances, a final judgement of conviction is changed only into a decision on sentence; in such a way that a lower sentence is passed on the convicted person or a less severe sanction is passed on him. Mitigation of final sentence is allowed if after final judgment, circumstances appear that were not available when sentence was passed or the court was unaware of them, but would clearly have led to a milder sentence (Sect. 417 CCP). In addition to the convicted person himself, his advocate and his family, who may also appeal on his behalf, the state prosecutor can also request extraordinary mitigation of penalty. Both the state prosecutor who handled the case at first instance, who can present his opinion on filing a request for extraordinary mitigation of penalty, and the supreme court state prosecutor, who appears before the Supreme Court and to whom the Supreme Court sends the record prior to deciding in order for him to put forward his proposal, take part in the procedure of hearing and deciding on the matter.
The state prosecutor has some further competences in connection with the enforcement of other penal sanctions. He can be present when a court adopts a new decision in relation to the duration and changing of security measures of compulsory psychiatric treatment and protection in a health institution or compulsory psychiatric treatment at liberty, he can be present when a court decides on the revoking of a conditional sentence if, in the operative part of the conditional judgement, the accused was required to undergo treatment at liberty but did not start this treatment or arbitrarily abandoned the treatment (sect. 497 CCP), he can propose revoking a conditional sentence in which it was specified that sentence will be imposed if the convicted person does not return the material benefit, does not compensate damages or does not fulfil other obligations, and the convicted person does not do this within a specific time limit (sect. 506 CCP). He can give his opinion, and exercise the right to appeal, in relation to erasure of a judgement from criminal records, in relation to the erasure of a conditional sentence and in relation to the ending of security measures of a prohibition on performing a profession, removal of a driving licence and cessation of the legal consequences of a sentence (sects. 509-513 CCP).
The state prosecutor does not have other competences in connection with enforcement of sanctions. Supervision of prison institutions is performed by the Ministry of Justice and presidents of district courts within whose territorial jurisdiction the institution is located (sect. 212 EPSA).
