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ПРАВОВОЙ ОПЫТ ПРОТИВОДЕЙСТВИЯ ПРЕСТУПНОСТИ
LEGAL EXPERIENCE IN COMBATING CRIME
DOI: 10.33693/2223-0092-2020-10-3-95-114
Analysis and evaluation
of the legal regulation, de lege lata,
concerning the imposition
of a custodial sentence
in the Slovak Republic
S. Ferencikova ©
Pavol Jozef Safarik University in Kosice, Kosice, Slovakia
E-mail: [email protected]
Abstract. In the article, the author dealt with imprisonment as a type of criminal sanction. He pointed out the fact that the said punishment has the status of ultima ratio in the system of punishments in the Slovak Republic and at the same time that this punishment can be considered a universal type of punishment, as it can be imposed for any criminal offense. The author characterized the basic principles of sentencing in general, the substantive conditions of imprisonment contained in the Criminal Code, the various forms of serving this sentence and also pointed out the application problems related to imprisonment, as well as institutes of punishment related to imprisonment. In particular, he addressed aspects that modify custodial sentences, including the issue of concurrence and recidivism. She also characterized the position of imprisonment as an ultima ratio in the context of imposing alternative sentences. To this end, it analyzed the relationship between imprisonment and selected alternative sentences, as well as relevant statistics. She pointed out how imprisonment determines the imposition and specific sentences of house arrest as an alternative sentence. She concluded by considering how the existence of private prisons, which are the place where a custodial sentence is served, could affect the extent to which it is imposed by the courts. In relation to the individual partial issues addressed, he also formulated de lege ferenda proposals.
Keywords: sanction, imposition of punishment, imprisonment, prison, Criminal Code
Acknowledgments. The presented article was created with the support and is the output of the solution of the research project APVV-16-0362 "Privatization of criminal law - substantive, procedural, criminological and organizational-technical aspects"
DOI: 10.33693/2223-0092-2020-10-3-95-114
Анализ и оценка правового регулирования действующего законодательства в вопросе вынесения приговора лишения свободы в Словацкой Республике
S. Ferencfkova ©
UPJS в Кошице, Кошице, Словакия
E-mail: [email protected]
Аннотация. В статье автор рассматривал тюремное заключение как разновидность уголовного наказания. Он указывает на тот факт, что указанное наказание имеет статус ультиматума в системе наказаний в Словацкой Республике и в то же время это наказание может считаться универсальным видом наказания, поскольку оно может быть назначено за любое уголовное преступление. Автор охарактеризовал основные принципы вынесения приговора в целом, основные условия лишения свободы, содержащиеся в Уголовном кодексе, различные формы отбывания наказания, а также указал на проблемы применения института наказания, связанного с лишением свободы. В статье он рассмотрел аспекты, которые изменяют приговоры с лишением свободы, в том числе проблему сложившиеся обстоятельств, послуживших причиной преступления и рецидивизма. Автор также охарактеризовал положение лишения свободы как ультимативное в контексте вынесения альтернативных предложений. С этой целью автор проанализировал взаимосвязь между лишением свободы и выбранными альтернативными предложениями, а также соответствующие статистические данные. Автор указал, как лишение свободы определяет условия вынесения решения о заключении под домашний арест. В заключение автор рассмотрел вопрос о том, как существование частных тюрем, являющихся местом отбывания наказания в виде лишения свободы, может повлиять на количество приговоров, которые выносит суд. В отношении отдельных частичных вопросов он также сформулировал предложения de lege ferenda. Правовой опыт противодействия преступности.
Ключевые слова: санкция, наложение наказания, лишение свободы, тюрьма, уголовный кодекс
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ДЛЯ ЦИТИРОВАНИЯ: Регепс[коуа Б. Анализ и оценка правового регулирования действующего законодательства в вопросе вынесения приговора лишения свободы в Словацкой Республике. 2020. Т. 10. № 3. С. 95-114. 001: 10.33693/2223-0092-2020-10-3-95-114 V_)
INTRODUCTION
Sanction as a manifestation of state coercion is an important element in the regulation of socially undesirable behavior. In the area of criminal law, it is a matter of regulating the socially undesirable behavior of criminals, or other persons who have committed other criminal offenses. Criminal sanctions represent a serious interference with human rights and freedoms, and therefore the Constitution of the Slovak Republic enshrines, among other things, one of the basic principles applicable in substantive criminal law, namely "nullum crimen sine lege, nulla poena sine lege", which means that only law may determine which conduct is a criminal offense and what punishment may be imposed for its commission [6]. In the conditions of the Slovak Republic, this Act is the Criminal Code (Act No. 300/2005 Coll., Hereinafter referred to as the "Criminal Code" or the "Cr.Co.")
Sanctions under Slovak criminal law can be characterized as specific, statutory and enforceable consequences of a committed criminal offense or an other act that
is criminal. Their basic and necessary feature is that their application has disadvantageous, undesirable consequences for the perpetrator. Punishment causes a certain harm to a particular perpetrator, which is an integral part of the concept of punishment and the concept of protective measure (but it is not its purpose or meaning). The sanction therefore has a negative content in accordance with the Criminal Code. It always represents some harm to the offender, whether in liberty, property, honor or other rights [2].
Criminal sanctions are organized into a certain system. The system of criminal sanctions represents their division, hierarchical arrangement, as well as relations and connections between individual sanctions. Differentiated concepts of criminal sanctions are known in the theory of criminal law [1], but with regard to the normative wording of § 31 of the Criminal Code we can unambiguously and without any doubts conclude that a dualistic system of criminal sanctions applies in the conditions of the Slovak Republic. Depending on the relationship between penalties and protective measures and in terms of their application,
this is a dualistic alternative system [1], as penalties and protective measures are two separate and equally important criminal sanctions that can be imposed separately, side by side at the same time, or even a protective measure instead of punishment.
Imprisonment as one of the most severe types of criminal sanctions is understood in the hierarchy of penalties as the ultima ratio, as a last solution, from which it can be concluded that it should be imposed only in cases where other types of penalties, understood as a more lenient solution, are not sufficient to achieve the purpose of the sentence. Imprisonment as a universal type of punishment can be imposed for every criminal offense committed, which ultimately results from the very fact that in a special part of the Criminal Code, only the penalty rates of imprisonment are determined for each crime. However, the penalty rates of imprisonment set out in a special part of the Criminal Code may be further modified, through the provisions of the general part of the Criminal Code. In addition to the sentence of imprisonment, any other type of sentence may be imposed, with the exception of two types of punishment, namely the sentence of house arrest and the sentence of compulsory labor, which explicitly results from § 34 par. 7 Cr.Co., which regulates the so-called incompatibility of penalties and at the same time it fulfills the principle of incompatibility of certain types of criminal sanctions.
METHODOLOGY
The primary goal of this article is to analyze and evaluate the legislation concerning the imposition of a custodial sentence as a type of criminal sanction in the conditions of the Slovak Republic. The partial aim is therefore to analyze the substantive conditions for the imposition of a custodial sentence, also in the context of the basic principles of sentencing; to analyze the provisions of the Criminal Code modifying the penalty rates of imprisonment, also in the context of problems of application practice; analyze the position of imprisonment as the ultima ratio in the system of punishments. Following the characteristics of the position of imprisonment in the system of criminal sanctions imposed on natural persons to point out and analyze the impact of imprisonment on the imposition of selected types of alternative punishments, namely house arrest; another partial goal is therefore the evaluation of the proposed changes, in which the author points out the relevance and inevitability of the custodial sentence when imposing an alternative sentence. Other important partial goals of the article include the effort to point out the current substantive problems of imposing a custodial sentence manifesting itself in the prison system, as well as the consequences associated with it. Following the problems of prisons, the author will try to formulate a result on the influence of private prisons on the imposition of imprisonment, or on the imposition of alternative punishments. The author aims to support his arguments by processing relevant statistical data.
From the point of view of methodological approach, the analytical-synthetic method was used in the presented article for the purpose of theoretical analysis of the existing legal status of substantive conditions of imprisonment, provisions regulating basic principles of imprisonment,
provisions regulating the modifications of custodial sentences, as well as legal documents, commentaries, expert opinions. Furthermore, the analytical-synthetic method was used to evaluate the proposed legal status of the substantive conditions of sentence such as home arrest as a type of alternative punishment, as well as to formulate specific conclusions, especially in the influence of private prisons on unconditional imprisonment, while using scientific abstraction.
In the context of changes in alternative punishment in criminal policy, as well as changes in the imposition of life imprisonment, the historical-legal method was used to present past, proposed and adopted legal regulations of substantive conditions of home arrest, in the context of the relevant impact of custodial sentence on imposing a sentence of house arrest.
Furthermore, the article used a comparative method, in order to compare the position of alternative sentences and universal imprisonment in the system of sentences in the Slovak Republic, and to compare the national legislation de lege lata and the proposed regulation of the conditions of house arrest, again in the context the relevant impact of a custodial sentence on the imposition of a house arrest sentence.
The use of a descriptive method in order to describe the processing of existing knowledge of the researched issue is also irreplaceable. In addition to the mentioned methods, methods and procedures commonly used in scientific works such as deduction, induction, abstraction (especially when formulating one's own conclusions and theoretical assumptions), rules of formal logic, methods of interpretation of legal norms and partial mathematical-statistics methods were also used in the elaboration of the researched issues, especially in the processing of relevant statistical data concerning the imposition of sentences in the conditions of the Slovak Republic
PENALTY PRINCIPLES
The system of penalties and the principles by which penalties are imposed are based on the idea that punishment should be proportionate to the seriousness of the offense for society, should be individualized and differentiated according to the nature of the offense and the offender, as well as it should be fair and lawful [7].
The principles accordingto which sentences are imposed, including the sentence of imprisonment in the Slovak Republic, are concentrated in § 34 of the Criminal Code. Act. It is primarily based on the principle of nulla poena sine lege, that means the principle of the lawfulness of punishment, according to which the offender can be imposed only the type of punishment and only to the extent given in the Criminal Code, whereas this legal acts in its special part specifies only the penalty rates of the custodial sentence.1 Penalty rates without imprisonment are regulated in the general part of the Criminal Code. However, the principle in question also finds its expression in § 32 of the Criminal Code which regulates the catalog of penalties imposed on natural persons, but also in § 9 of the Act on Criminal Liability of Legal Entities, which regulates the catalog of penalties imposed on legal persons. However, the elementary law
1 § 34 par. 2 of the Criminal Code.
of the state cannot be neglected either, namely Art. 49 of the Constitution of the SR.
Punishment should only punish the offender, so as to ensure the least possible impact on his family and those close to him,2 which is a manifestation of the principle of personality of punishment. This principle does not, in essence, exclude the effect of the sentence imposed on the offender's family and close relatives, but makes it possible to minimize this effect, in no way to exclude it. It can be considered that, in the case of a custodial sentence, the expression of this principle will also be the imposition of a custodial sentence in a form other than unconditional; in particular in the case of the institution of conditional suspension of a custodial sentence. The punishment clearly imposed by this punishment will affect the offender, who must prove himself during the probationary period and must also bear any appropriate restrictions and obligations imposed, while the family and relatives may not be affected at all by this punishment, as the offender retains his previous social functioning, economic security and socio-emotional survival.
In determining the type of punishment and its imposition, the court shall take into account, in particular, the manner in which the act was committed and its consequence, fault, motive, aggravating circumstances, mitigating circumstances and the perpetrator, his circumstances and the possibility of redress.3 The law obliges the court to take into account the individual peculiarities of each individual crime, thus fulfilling the principle of the so-called judicial individualisation of a sentence, which determines the specific sentence. The principle of judicial individualisation of punishment is deepened in relation to the developmental stages and forms of criminal cooperation, which the Criminal Code exactly refers to as complicity and participation (in more specific sense of the word). However, the judicial individualisation of a sentence is preceded by a statutory individualisation of the sentence, which determines the modification of the penalty rates of imprisonment specified in a special part of the Criminal Code individually for each criminal offense.
In application practice, the relevant principle is referred to as the principle of proportionality of the punishment committed. Proportionality in this context means the impossibility of imposing a punishment that is stricter than how it is required by the seriousness of the committed offense.
The principle of fairness and individualization of punishment is related to the principle of justice of the punishment. The principle of justice of punishment is given by its purpose. Such punishment is adequate which is adequate to the need to protect the society from crime. The basis of a fair punishment is its adequacy. If the punishment is appropriate, it will be fair.
In accordance with the principle of autonomy of penalties, all penalties may be imposed separately, or more than one sentence may be imposed side by side. However, this principle is not applied categorically and it is modified by two exceptions that result from this principle. The first exception lies in the fact of the obligatory
2 § 34 par. 3 of the Criminal Code.
3 § 34 par. 4 of the Criminal Code.
imposition of a custodial sentence in the case of a criminal offense of which the upper limit of the custodial sentence, that is set out in a special part of the Criminal Code, exceeds 5 years. The suffix "unless the Criminal Code provides otherwise" cannot be omitted, which is a newly introduced exception related to the conditions of imposing a house arrest, namely the possibility of imposing a house arrest for crimes, exactly for crimes with a maximum penalty set by the Criminal Code not exceeding 10 years, however, at least at the lower limit of the penalty of imprisonment established by the Criminal Code. The second exception is the existence of the so-called ancillary penalties, which, due to the conditions of their imposition, can never be imposed separately, but always only in addition to another sentence.
The principle of autonomy of penalties and the resulting exceptions are logically followed by the principle of incompatibility of penalties, according to which it is not possible to impose the types of penalties stipulated by law (by its nature and substance of these penalties.)
Punishment as a category of sanction from the point of view of the theoretical division of sanctions according to certainty in accepting the principle of nullum crimen sine lege certa constitutes both an absolutely certain sanction, if there is a sentence of life imprisonment and a relatively specific sentence where in the in the special part of the Criminal Code there is an exact type of sentence and its rates.
Under the ne bis in idem principle, a circumstance which is a legal feature of a criminal offense cannot be regarded as an mitigating circumstance, an aggravating circumstance, a circumstance which makes the imposition of a penalty below the statutory lower limit of the penalty or a circumstance which makes the application of upper limit of penlaty rate. The use of a legal feature of the basic factual nature of a criminal offense always takes precedence over another use. Although the principle in question does not give rise to problems of a fundamental nature in application practice, a certain interpretative doubt may arise in a situation where a fact is a feature of one offense and at the same time a qualified, and therefore stricter, factual aspects of the crime overlap in certain respects, resp. they are similar.
The principle of humanity of punishment does not have an explicit expression in the substantive code, but follows from Art. 7 par. 2 of the Charter of Fundamental Rights and Freedoms and from Art. 15 par. 3 of the Constitution of the Slovak Republic: in the context of imposing a custodial sentence, its manifestations can be seen in the level of abolition of the death penalty and its replacement by life imprisonment with the possibility of conditional release, in the level of subsidiarity of unconditional imprisonment, which has the character of ultima ratio (although this is expressed only in the case of juvenile offenders), in terms of the introduction of new alternative punishments in the framework of the recodification of criminal law, as well as in terms of enshrining the prohibition of cruel, inhuman or degrading treatment or punishment in prison.4
4 § 3 par. 1 of the legal act No. 475/2005 Z. z. on execution of custonial sentence.
PENALTY RATES OF IMPRISONMENT
The current Criminal Code5 distinguishes between fixed-term imprisonment, up to a maximum of twenty-five years, and life imprisonment.6 At present, imprisonment takes four forms, namely:
a) a custodial sentence the execution of which has been
suspended;
b) a custodial sentence the execution of which has been
conditionally suspended with probation supervision;
c) unconditional imprisonment;
d) life imprisonment.
In the valid Criminal Code, the so-called relatively certain sanctions, which are defined by the lower and upper limit of the penalty rate, within which the court then imposes a specific assessment, which also applies to imprisonment. The upper limit of the custodial sentence is always set, the lower limit of the custodial sentence may be absent. The substantive significance of determining the lower and upper limit of the penalty of imprisonment lies in the differentiation of the basic categories of criminal offenses - misdemanors and crimes, as well as the subcategory of particularly serious crimes, which determines the application of the provisions of the Criminal Code.
According to the determined criminal rate, the type of seriousness and the severity of the criminality of the given criminal offense for society are then assessed. The span between the lower and upper limit of the custodial sentence gives space for the specification of the type of seriousness of the crime and for the consideration of all aspects listed in § 34 par. 4 of the Criminal code, which are crucial for the individualization of punishment in relation to a specific perpetrator and a specific act [2].
The upper limit of the penalty of imprisonment may be determined generally for 25 years, or separately, when it is always determined for which criminal offense in a special part of the Criminal Code. The upper limit of the sentence of imprisonment, and thus the maximum permissible sentence of imprisonment, is set at a maximum of 25 years, and in no case may this limit be exceeded, either when imposing a cumulative or summary sentence or when imposing another sentence. Or a substitute sentence (according to § 57 par. 3 of the Criminal Code). As already mentioned, the lower limit of the sentence of imprisonment may be absent, so that the minimum permitted rate of imprisonment is not set in the Criminal Code.
However, we could indirectly deduce it from § 53 par. 4 of the Criminal Code, within which the conversion of a sentence of house arrest into an unconditional sentence of imprisonment is regulated in the event that the convicted person does not fulfill his obligations specified in par. 2 of the said provision. In such a case, the rule of conversion is established that one day of unexecuted imprisonment is equal to one day of unconditional imprisonment. Similarly, in § 55 par. 4 of the Criminal Code it regulates the conversion of a sentence of compulsory labor into an unconditional sentence of imprisonment if the convicted person did not lead a proper life at the time of serving the sentence of compulsory labor or did
5 Legal Act No. 300/2005 Z. z. Criminal Code.
6 § 46 Criminal Code.
not perform work to the specified extent through fault or did not fulfill the imposed restrictions or obligations. In such a case, a conversion rule is laid down that for each two hours of work not performed, one day of unconditional imprisonment is imposed. It is from the above-mentioned transformation of alternative sentences to short-term custodial sentences into the unconditional custodial sentence itself that the lowest of its area, which is essentially one day, can actually be deduced.
The upper and lower limits of the penalty of imprisonment may be reduced, respectively increased either within the statutory penalty rate in a special part of the Criminal Code, or outside this framework. Within the statutory penalty rate, the lower limit of the penalty rate specified in a special part of the Criminal Code may be increased when applying § 38 par. 4 of the Criminal Code, § 38 par. 5 of the Criminal Code and § 38 par. 6 of the Criminal Code. Within the framework of the statutory penalty rate, the upper limit of the penalty rate specified in a special part of the Criminal Code may be reduced in the application of § 38 par. 3 of the Criminal code.
Outside the scope of the statutory penalty rate, the lower limit of the penalty rate specified in a special part of the Criminal Code may be reduced only with the application of § 39 of the Criminal Code, while it is necessary to take into account in particular par. 3 and 4 of the provision in question. Outside the scope of the statutory penalty rate, the upper limit of the penalty rate specified in a special part of the Criminal Code may be increased only with the application of § 41 par. 2 of the Criminal Code and § 42 of the Criminal Code, which regulate the imposition of a cumulative and summary sentence when using the so-called asperative principle.
The penalty rate established by law in a special part of the Criminal Code must be understood as the penalty rate specified in a special part of the Criminal Code for individual criminal offenses and not the newly created penalty rate after the application of the relevant paragraphs of § 38 of the Criminal Code [2].
FORMS OF EXECUTION OF IMPRISONMENT
According to the valid legal regulation, imprisonment has four forms, which criminal theory refers to as forms of execution of imprisonment. It is a custodial sentence, the execution of which has been conditionally suspended (in the past also referred to by the legislation itself as a conditional sentence, known in the lay sphere as a "condition"); custodial sentence, the execution of which was conditionally suspended with probation supervision (formerly referred to as conditional sentencing with supervision, in the lay sphere known as the "probation condition"); unconditional imprisonment and life imprisonment.
Statistical data recording the imposition of individual types of sentences in the conditions of the Slovak Republic show that the most frequently imposed sentence is a custodial sentence in the form of a conditional sentence. The sense of this institute is that the court will pass a conviction and impose a custodial sentence, but the execution of this sentence will be postponed (more precisely, the execution of the sentence will be suspended) provided that the convicted offender leads a proper life
for a specified probationary period and meets all specified requirements.. It can be stated with certainty that it represents an alternative to unconditional imprisonment, is a manifestation of the principle of humanity, an auxiliary role of criminal repression, has an educational character and allows individualization in the court's approach to punishing offenders [7].
However, the legal nature of this institute is questionable. Part of the professional public considers it a form of imprisonment, another part of the professional public considers it a special type of punishment, they even classify it among the so-called alternative penalties. A conditional sentence only applies to a custodial sentence, it does not apply to other types of punishment (non-custodial sentences), even if they were imposed together with the condition.7 The legal consequence of the institute's application is the legal fiction of non-conviction, that means the offender is treated as if he had not been convicted (the convicted offender does not have an registration in the criminal record).
The institute of conditional suspension of the execution of a custodial sentence with supervision has the same legal consequences. This institute is an alternative to a conditional suspension of a custodial sentence. By its nature, it is a modification of the classical conditional sentence [5]. The educational activity is deepened here by the provision of probation supervision. An integral part of probation supervision is the imposition of reasonable restrictions and obligations, which are mandatory [7]. The essence of conditional sentencing with supervision is a method of re-education and other positive effects on the offender's behavior, which is based on a combination of elements of control, assistance and counseling.
Probation supervision means long-term work with a convicted person, in which the convicted person is obliged to be in contact with the probation and mediation officer, to cooperate in the implementation of the probation program during the probationary period and to submit to compliance with the conditions imposed by the court. The purpose of probation supervision is to provide assistance to the offender, to guide him professionally, to motivate them positively with the aim of reintegration into society, to create a suitable social background for his social and work application and to help solve his life situation; control of the offender's conduct during the probationary period and protection of the society against possible harm from the offender; reducing the risk of re-offending. The aim of acting on a convicted person in probation supervision is to refrain from committing a criminal offense in the future, to acquire a suitable social background and a promising social application [5].
The above-described institutes are applied quite often in the decision-making practice of courts, they are among the most frequent institutes in the field of punishment, partly due to precisely defined conditions of application, which do not bring more serious application problems, and partly because they do not bring the need to apply other institutes. such as the institute of preliminary inquiries carried out by probation and mediation
7 The only exception is a financial penalty for a juvenile, which can be conditionally suspended under Section 115 of the Criminal Code.
officers in the imposition of selected types of alternative punishments. In addition, the legal consequences of these institutes are extremely favorable for the convicted persons, even though they have no legal right to apply them.
The legal fiction that the perpetrator is treated as if he had not been convicted means that only the fact of conviction disappears fictitiously. The fact that a crime has been committed remains unaffected by this fiction. The fact that the offender has committed an act which has the characteristics of a criminal offense and the fact that he has been lawfully convicted of that act by a court are two different facts. The law distinguishes between these two different legal facts and associates with them the emergence of different legal relationships and different legal consequences for the offender [2].
Application problems related to the application of these institutes were mainly questions of probation period, questions of check of the offender during the probation period, as well as fiction of the check of the offender, which were solved by decision-making practice in the context of adopted case law, but also gradually adopted legislative changes of the Criminal Code.
At present, application problems in the decision-making activity of courts related to the optional possibility of imposing appropriate restrictions and obligations in the case of conditional suspension of the execution of a custodial sentence resonate, that is in the so-called conditional sentence, as well as the obligatory possibility to impose appropriate restrictions and obligations in the case of conditional suspension of the execution of a custodial sentence with probation supervision.
In both mentioned institutes, the purpose of reasonable restrictions and obligations is to help the offender to lead a proper life during the probationary period, but at the same time they help to further individualize the punishment for a specific offender so that the punishment fulfills its purpose that is a protection of society and partial goals as repression and prevention. As for the first situation -conditional suspension of the execution of a custodial sentence, the imposition of appropriate restrictions and obligations is only an optional possibility for the court, which may or may not impose these measures.
The common practice of the courts is that this optional possibility is not used at all or is used only to a small extent. Appropriate restrictions and obligations are defined demonstratively in the Criminal Code, which means the court may, at its own discretion, impose restrictions and obligations other than those defined by law. Decision-making bodies are often discouraged by the need to define and justify the imposition of such a restriction or obligation in their decision. Therefore, unless the court has to impose and justify such a restriction or obligation, it will not. This fact is also confirmed by statistical data concerning the imposition of a conditional suspension of the execution of a custodial sentence registered for 2018, which distinguishes the so-called conditional sentence with and without the imposition of appropriate restrictions and obligations. In 2018, 16.153 probation sentences were imposed, of which 13.235 without imposing appropriate restrictions and obligations. Statistics on the conditional suspension of a custodial sentence with probation supervision, in which reasonable restrictions and obligations are imposed compulsorily, are recorded
separately, during probation, and the probation condition was imposed in 2018 in 1980 cases.
With regard to the second situation - conditional suspension of the execution of a custodial sentence with probation supervision, the imposition of appropriate restrictions and obligations is a mandatory obligation of the court, which must impose them. The common practice of courts is such that they use the imposition of such restrictions and obligations, which have the so-called more general in nature and can be applied to different categories of offenders without taking into account any specificities of the offense, the personality of the offender or other circumstances in which the offense was committed. Again, the courts only impose restrictions and obligations precisely imposed by law and do not formulate others that could better take into account the situation of the specific offender, his personality and crime, and thus better achieve the objectives described above, i.e. the purpose of the sentence, as the sentence would actually be individualized, resp. its individualization would be further deepened.
Another problem can be detected in the fact that the judges themselves do not always have a comprehensive knowledge of what a particular restriction and obligation entails, what its content is, how its performance is carried out. Last but not least, it must be stated that some of the restrictions and obligations mentioned in the Criminal Code cannot be implemented and implemented at present, which can be considered a serious application problem. The solution of this situation could be, for example, the elaboration of methodological guidelines in relation to the application and real implementation of appropriate restrictions and obligations by the relevant ministry.
Pursuant to the valid legal regulation, the sentence of imprisonment in its unconditional form is executed differently in institutions for the execution of the sentence of imprisonment of minimum, medium and maximum degree of guarding. Differentiated levels of guarding are determined by the degree of isolation of the convict and the degree of security of the given degree. External differentiation is thus the execution of a custodial sentence according to the degree of guarding and is governed by the principle that the higher the degree of guarding, the greater the range of restrictions. The court is obliged to decide on the inclusion of a specific convicted person in an institution for the execution of a sentence of the appropriate degree, and this decision is an integral part of the operative part of the judgment imposing an unconditional sentence of imprisonment [5]. Therefore, in terms of criminal law theory, external differentiation of a custodial sentence is usually referred to as judicial differentiation of a custodial sentence.
Under the provision of § 48, the Criminal Code regulates the criteria according to which the court should proceed when assigning a convicted person to the relevant institution for imprisonment, but also regulates exceptions to these rules, as the court is not absolutely bound by these rules (in some cases can be deduced from the provision in question). The application of this provision does not cause practical problems in the decision-making practice of courts. It is necessary to emphasize that in accordance with the normative wording of § 48 par. 2 letter "a" Criminal
Code. "...was not serving a custodial sentence...", resp. § 48 par. 2 letter "b" Criminal Code... "was serving a custodial sentence..." this regards the real application of custodial sentence in its unconditional form (the convicted person executed the sentence in the insitution where the custodial sentence is executed.)
Last but not least, a custodial sentence can also be served in a custodial institution - the Custodial Sentence Unit, as well as in the Hospital for Accused and Convicted Persons in Trencin, which can be considered as a place of imprisonment. The prosecutor supervises the observance of legality in institutions serving the sentence of imprisonment. Members of the National Council of the Slovak Republic, the Minister of Justice and persons authorized by him, the General Director of the Prison and Judicial Guard Corps and persons authorized by him, legal entities and natural persons shall control the execution of a custodial sentence, if so provided by a special regulation or international convention by which the Slovak republic is bound.
After the abolition of the death penalty in 1990,8 life imprisonment was conceived as an alternative to the death penalty and was also seen as a manifestation of the humanisation of criminal law. According to the previous legislation, it was conceived as the so-called an exceptional punishment, the uniqueness of which consisted of differentiated aspects. It is the most severe form of imprisonment. In a broader context, in terms of the rules of formal logic, it can be considered part of an unconditional sentence of imprisonment, but given the special conditions for imposing this sentence, it can undoubtedly be considered a separate institute - a separate form of imprisonment.
The substantive conditions for the imposition of a life imprisonment are regulated in Section 47 of the Criminal Code. Act, in the sense of which its obligatory and optional imposition is differentiated. Irrespective of whether a court must or may impose a life sentence, its imposition is in both cases subject to the fulfillment of normative cumulative conditions, the fulfillment of which the court must carefully consider. The form of these conditions has changed and become more precise during the development of the legislation, especially after the recodification of substantive criminal law in 2005, and it could be stated that it has curtailed the conditions for imposing the sentence, which significantly acquired the ultima ratio. The conditions for the optional imposition of a life sentence express the principle that this sentence may be imposed only if the purpose of the sentence in terms of general and individual prevention cannot be ensured by more lenient means of the Criminal Code [7].
In the case of mandatory imposition of a life sentence, the so-called the principle of "3x and enough", which has been criticized many times by the professional public since its introduction on the grounds that it does not provide for judicial discretion, but constitutes an obligation to impose a sanction provided for in advance by law. It is necessary to emphasize that the concept of punishment in the Slovak Republic also allows the so-called absolutely certain sanctions, characterized by the type of punishment
8 K zruseniu doslo zakonom c. 175/1990 Zb., ktorym sa novelizoval Trestny zakon c. 140/1961 Zb. s üCinnosfou od 1 jula 1990.
and its imposition, while respecting the requirement of certainty of the criminal law norm (including the norm regulating the type of punishment), while there is no specific requirement for the optional or obligatory nature of a relatively certain sanction.
MITIGATING AND AGGRAVATING CIRCUMSTANCES
Mitigating and aggravating circumstances are, by the theory of criminal law, included among the facts that significantly determine the individualization of punishment. Ex lege they have a significant influence on the choice of the type of sentence and the imposition of the sentence, as they will modify the limits of the penalty rates as a result of their correct determination and determination by the court [10]. In view of the above findings, they can be considered as an important means of legal and judicial individualization of punishment and its imposition.
Mitigating and aggravating circumstances are exhaustively defined in § 36 of the Criminal Code and § 37 of the Criminal Code, which is the difference from the previous legislation contained in the Criminal Code No. 140/1961 Coll. in which they were mentioned only demonstratively. Given the exhaustive nature of the criminal law, the calculation of aggravating and mitigating circumstances cannot be extended in any way, not even by analogy. In the case of juvenile offenders, according to § 110 par. 1 of the Criminal Code when determining the sentence, the fact that he has fulfilled the educational obligations or restrictions specified in § 107 of the Criminal Code is also taken into account as a mitigating circumstance. Based on case law, it can be said that the most frequent aggravating circumstances, which are assessed in the decision-making activity of the court, whether a criminal order or judgment, are primarily aggravating circumstances under § 37 letter. "h") Criminal Code, that is the commission of several criminal offenses (concurrence) and § 37 letter "m" Criminal Code, i.e. conviction for a previous crime (recidivism)
It is the duty of each court to take into account the proportion and severity of mitigating and aggravating circumstances when determining the type of sentence and its imposition, which explicitly results from § 38 par. 2 Criminal Code At the same time, two cardinal concepts emerge from that provision, namely the ratio and the degree of seriousness.
The ratio of mitigating circumstances to aggravating circumstances is a ratio expressed arithmetically, a mathematical ratio determined on the basis of facts found out and proven facts. This ratio determines the lowering of the upper limit and the increase of the lower limit of the penalty rate, that is the so-called legal individualisation of punishment. According to § 38 par. 3 of the Criminal Code the upper limit of the statutory penalty rate is reduced by one third if the proportion of mitigating circumstances prevails. According to § 38 par. 4 Criminal Code. the lower limit of the statutory penalty is increased by one third if the proportion of aggravating circumstances prevails.
The penalty rate represents the penalty rate of imprisonment specified in a special part of the Criminal Code, but also the penalty rates of other types of sentences specified in the general part of the Criminal Code, with
the exception of those sentences that do not have a penalty rate.
The degree of severity of mitigating circumstances and aggravating circumstances determines the determination of a specific sentence within the adjusted range of the penalty rate, that is the so-called judicial individualisation of punishment. Thus, the limits of the penalty rate are first adjusted according to the ratio of mitigating and aggravating circumstances, and then their severity is taken into account in determining the specific area. Increasing or lowering the limits of the penalty rate will ultimately affect the determination of the specific sentence, and the court must therefore consider only those mitigating and aggravating circumstances on the part of the offender which are unquestionable and which were proven to the court.
In application practice, however, there may be a situation where no aggravating and mitigating circumstances are proven, respectively. are proved, but in the same (arithmetic) number. Applying the principles of formal logic and grammatical interpretation of the provisions of § 38 of the Criminal Code. Act, there will be no legal individualization, and thus no modification of penalty rates. However, the application of the so-called judicial individualisation of punishment can not be excluded.
Reduction of the upper limit or increase of the lower limit of the penalty rate according to § 38 par. 3 to 4 of the Criminal Code is carried out only within the statutory penalty rate; the basis for reducing or increasing the penalty rate is the difference between the upper and lower limit of the statutory penalty rate. This means that the required one third is calculated from the difference between the upper and lower limit of the penalty rate; the result is then either added to the lower limit of the penalty rate or subtracted from the upper limit of the penalty rate according to the applied provision.9 A reduction of the upper limit or an increase of the lower limit of the statutory penalty rate shall not apply in cases where a special part of the Criminal Code provides only for imprisonment for twenty-five years or life imprisonment, i.e. in the case of an absolutely certain sanction.
However, in the decision-making practice of courts, a situation may arise where the ratio of mitigating and aggravating circumstances is uniform, which means that it will not be possible to apply § 38 par. 3 and 4 of the Criminal Code. In the given case, the court will move only within the statutory penalty rate in a special part of the Criminal Code for a specific criminal offense when determining the specific sentence. The imposition of the sentence will thus only be affected by the degree of seriousness of the mitigating and aggravating circumstances, in no
9 When applying § 38 par. 3 of the Criminal Code. for a sentence of, for example, 2 to 8 years, one third, by which it is necessary to reduce the upper limit of the sentence of imprisonment, is calculated from the difference between the upper and lower limit of the sentence, i.e.
8 - 2 = 6 years. One third is calculated from 6 years, which is actually 2 years. As the upper limit needs to be reduced by one third, 2 years
are deducted from the upper limit of 8 years, reducing the upper limit to 6 years. The penalty rate, within which the court will decide on a specific sentence, taking into account the seriousness of mitigating and aggravating circumstances, will be 2 to 6 years. The same procedure will be followed in the application of § 38 par. 4 Tr. Act, but in the given case the lower limit of the penalty rate of imprisonment would increase, while maintaining the example of 2 to 8 years, the penalty rate after adjustment would be 4 to 8 years.
case by their proportion. Only judicial individualisation of punishment will come into consideration and not legal individualisation of punishment, which is excluded from the point of view of their meaning and purpose on the basis of the relevant legal provisions. On the basis of the above, it can therefore be concluded that mitigatingand aggravating circumstances are an aspect of the individualization of punishment and the achievement of its purpose.
PUNISHMENT OF RECIDIVISM
Recidivism (criminality) in criminal law means a case where the same offender commits a crime again after a court has lawfully convicted him of another, previous crime.10 Recidivism always requires a valid conviction for a previous crime. From a formal point of view, the fiction must not be that the perpetrator is treated as if he had not been convicted. From a material point of view, the court did not take the opportunity not to take this circumstance into account given the nature of the previous conviction. Recidivism, as a generally aggravating circumstance, is the only case of aggravating circumstances which the court does not have to take into account, even if it has been established in criminal proceedings.
The case where the offender commits a second criminal offense after proclamation of the conviction of the conviction by court of first instance for the first criminal offense, but before the entry into force of this judgment, cannot be considered either a recidivism or a concurrence of criminal offenses, but it is a so-called false recidivism, sui generis retroactivity, which is punishable by imposing another punishment according to § 43 of the Criminal Code.
The modification of the penalty rates of imprisonment is influenced by recidivism, resp. retroactive crime related only to a category of crime or a subcategory of particularly serious crime. Theoretically, it is also possible to consider the situation that the modification of the lower limit of the penalty of imprisonment may also be determined by the recidivism of the misdemeanor, if the court considers it as a generally aggravating circumstance in the existence of no mitigating circumstance.
According to § 38 par. 5 Criminal Code when committing a crime again, the lower limit of the statutory penalty is increased by one half. In the sense of this provision, it is therefore a recurrence of crime, but at the same time the application of § 38 par. 4 Criminal Code, according to which the lower limit is increased by one third (due to the predominance of aggravating circumstances), but the application of § 38 par. 3 Criminal Code, according to which the upper limit is reduced by one third (due to the predominance of mitigating circumstances). The same applies to the recurrence of a particularly serious crime, with the difference that the lower limit of the statutory penalty rate is increased by two thirds and at the same time the application of § 38 par. 4 and 5 Criminal Code, but the application of § 38 par. 3 Criminal Code is not excluded.
10 In this case, it is the so-called criminal understanding of recidivism; a criminological understanding of recidivism is a situation where the offender has re-committed any unlawful conduct; a penological understanding of recidivism is a situation in which a convicted person gets back to prison.
As mentioned above, recidivism does not always necessarily lead to a modification of the custodial sentence. However, the recurrence of the misdemeanor can be taken into account as an aggravating circumstance according to § 37 letter "m" Criminal Code even if the aggravating circumstances do not prevail over the mitigating circumstances (recidivism will not determine the modification - increase of the lower limit of the penalty rate) but can undoubtedly determine the determination of a specific sentence by the court, taking into account its severity. The fact that mitigating circumstances will prevail in a particular case does not mean that aggravating circumstances will no longer be taken into account in determining the type of sentence and its specific assessment.
Recidivism as an institute of substantive criminal law undoubtedly has a broad substantive significance, to which the author has approached restrictively with regard to the central theme of the article.
For a comprehensive perception of the issue, it is necessary to add that the increase of the lower limit of the penalty rate according to § 38 par. 5 to 6 Criminal Code is carried out only within the statutory penalty rate; the basis for reducing or increasing the penalty rate is the difference between the upper and lower limit of the statutory penalty rate. Reducing the upper limit or increasing the lower limit of the statutory penalty rate does not apply in cases where a special part of the Criminal Code provides only for imprisonment for twenty-five years or life imprisonment, i.e. an absolutely certain sanction. The provision of § 38 of the Criminal Code allows for the increase or decrease of criminal rates, whether in the case of aggravating and mitigating circumstances or the recurrence of crime and particularly serious crime, only within the limits set by law. A different situation occurs in the case of § 41 par. 2 of the Criminal Code that means in the case of imposing a comprehensive sentence of imprisonment in the application of the principle of asperation, when the upper limit increases above the statutory range, above the statutory penalty rate. In this context, § 38 par. 7 of the Criminal Code, according to which the provisions of par. 4 to 6 § 38 of the Criminal Code shall not be used if an increased aggregate penalty or a cumulative penalty pursuant to § 41 par. 2 Criminal Code or according to § 42 of the Criminal Code (cumulative or aggregate punishment when applying the principle of aspiration), if the simultaneous application of these provisions would be disproportionately severe for the offender.
With effect from 1 January 2013, there was a fundamental change in the area of recidivism, which was normatively formulated as a provision of § 7b par. 2 Criminal Code (Act No. 334/2012 Coll.), according to which a valid conviction by a court of another Member State of the European Union in criminal proceedings for the purposes of criminal proceedings shall be taken into account in the same way as if it had been issued by a court of the Slovak Republic. of the legal order of the Slovak Republic. Respecting the basic principle of criminal liability on the prohibition of retroactivity to the detriment of the offender, it is necessary to point to § 438e of the Criminal Code, according to which a conviction by a court of another Member State of the European Union is not taken into account if it entered into force before 1 January 2013.
The necessity of that provision resulted from the requirement laid down in Article 3 of Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings. The provision of § 7b of the Criminal Code when determining the condition of mutual criminality of the committed act, it creates a precondition for the procedural procedure of bodies active in criminal proceedings and courts specified in § 488a of the Criminal Procedure Code [7].
EXTRAORDINARY REDUCTION OF PUNISHMENT
The Institute of Extraordinary Reduction of Sentences can be considered as means of individualization of punishment, which allows the sentence to be commuted and imposed below the lower limit of the penalty provided in the Criminal Code [7],11 provided that the conditions laid down by law are met, namely imprisonment, activity prohibition punishment, prohibition of stay punishment, and punishment of expulsion.
The application of the institute in question of an optional nature is therefore only possible in the case of exhaustively listed penalties.
An extraordinary reduction of the sentence is possible in two separate cases. In the first case, if the general conditions under § 39 par. 1 of the Criminal Code which must exist at the time of the court's decision on punishment and not at the time of the commission of the crime. In the second case, in the existence of any of the exhaustively listed cases under § 39 par. 2 letter "a"-"e" of the Criminal Code. When imposing a sentence below the statutory lower limit of the penalty rate, the Criminal Code sets limits for the reduction of the penalty rate, which the court must respect.12
At the same time, it belongs to the provisions of the general part of the Criminal Code, which modify the penalty of imprisonment set for individual criminal offenses in a special part of the Criminal Code; especially § 39 par. 4 of the Criminal Code, according to which in proceedings on an agreement on the recognition of guilt and the acceptance of a sentence, the court may impose a sentence of imprisonment reduced by one third below the lower limit of the statutory penalty rate and in the case of offenses referred to in § 38 par. 3 letter "a" of the Criminal Code imprisonment of not less than twenty years.
Guideline of the General Prosecutor's Office of the Slovak Republic IV/1 Gn 5010/05-109 of 8 June 2006 for the procedure in the case of an exceptionally reduced sentence of imprisonment pursuant to § 39 par. 4 of the Criminal Code in the proceedings on the agreement on guilt and punishment, it states that the statutory penalty rate is to be understood as the penalty rate stated for which criminal offense in a special part of the Criminal Code. An individually determined penalty rate must be understood as a penalty rate calculated from the penalty rate established by law, taking into account the circumstances specified in § 38 par. 3 to 7 of the Criminal
11 Pursuant to Section 488a of the Criminal Procedure Code, taking into account of a valid conviction by a court of another Member State of the European Union in criminal proceedings shall be performed by the body active in criminal proceedings and the court.
12 § 38 par. 3 of the Criminal Code.
Code, while the basis for the calculation - the basis for reducing or increasing the penalty rate - will be according to § 38 par. 8 of the Criminal Code the difference between the upper and lower limits of the statutory penalty rate. After such an adjustment of the penalty rate, the application of § 39 par. 4 of the Criminal Code but without the application of § 38 par. 8 of the Criminal Code.
It clearly results from the above that one third, which can be sentenced to imprisonment below its lower limit, is calculated only from the lower limit of the penalty rate after it has been modified in accordance with the relevant provisions of § 38 of the Criminal Code.
In the application practice and decision-making practice of courts, there is a non-uniform procedure in the application of the above-described method of modification of the penalty rate in the case of the so-called conciliation procedure. The inconsistent interpretation consists in assessing the nature of the provision in question. Thus, two approaches follow from application practice, namely mandatory application or optional application. Due to the consequences of the application of the so-called conciliation provision, the conclusion on the obligatory application of § 39 par. 4 Criminal Code. However, if we use a synthetic interpretation of the provisions of § 39 par. 2 letter "d" and § 39 par. 4 Criminal Code, there can be no doubt about the optional nature of lowering the lower limit by one third.
PRINCIPLES OF CONCURRENCE PUNISHMENT
The concurrence of crimes is a case of so-called "Multiplicity" of crimes. According to criminal law theory, there is a concurrence (competition) of crimes when the same offender commits two or more crimes before he was convicted of one of them by a court of first instance, that is until such an act has been convicted by a court of first instance and unless the criminality of one of them was eliminated [4].
At the concurrence, it is necessary to assess the act in accordance with all the provisions of the Criminal Code that apply to it, in order to fulfill one of the elementary principles of criminal law and at the same time guarantee the legality; however, this principle does not apply to the imposition of a penalty for converging offenses, as in this case the so-called cumulative or aggregate penalty for the imposition of which special principles apply.
According to § 41 par. 1 of the Criminal Code, if the court convicts the offender of two or more criminal offenses, it shall impose a cumulative penalty in accordance with the statutory provision that applies to the most serious criminal offense.13 In addition to the punishment permitted under such a statutory provision, another type of punishment may be imposed as part of a cumulative sentence if its imposition would be justified by one of the concurring offenses. If the lower limits of the sentences of imprisonment are different, the lower limit of the cummulative sentence is the highest of them.
The above provision is governed by the so-called absorption principle (absorption principle; the predominance of legal theorists is considered in principle
13 § 41 par. 1 of the Criminal Code.
to be the opposite of the cumulative or census principle, because the cumulative penalty is imposed according to the legal provision applicable to the most severe criminal offense), the application of which is the starting point for privileged punishment in case of overlapping. A harsher punishment absorbs a lesser punishment. The consequences of milder acts are already contained in the more serious legal consequences. It occurs in three forms - absorption of criminal offenses, absorption of criminal rates, absorption of punishments. The perpetrator will be punished and the punishment will be given only for the most serious criminal offense. The absorption principle concerning custodial sentences, which is set out in all sections of the Criminal Code for all offenses, is complemented by a horizontal cumulative principle on the types of sentences, as it is not excluded to impose more than one type of sentence side by side [8].
In concreto, the provision in question applies both in the case of single-acting concurrency and in the case of multi-acting concurrency. However, in the case of multiple concurrence, all the offenses committed are required to be misdemeanor, although the possibility of a crime being committed in addition to the offenses is theoretically permissible, but at least one of the offenses would have to be covered by negligence (if all misdemeanor were intentional and, in addition to them, at least one crime, the principle of aspiration would already be possible). From the point of view of the criminal law, however, it remains irrelevant whether the concurrence in question is homogeneous or non-homogeneous.
Strictness is assessed according to the upper limit of the penalty of imprisonment of individual converging crimes. The most severe sanction will be the crime with the highest upper limit of the penalty of imprisonment. If these upper limits of the custodial sentences are the same, then the lower limit of the custodial sentence will be considered as a criterion of severity. If a situation arises where the upper and lower limits of the penalty rates of imprisonment for converging offenses are the same, then the most severe offense is the offense which does not allow a different type of sentence to be imposed separately. In this case, it is therefore required to take into account the provisions of the general part of the Criminal Code, specific provisions governing the possibility of imposing sentences without imprisonment.
The lower limit of the sentence imposed for concurrence is the one which is the highest in the case of converging offenses, regardless of whether this upper lower limit also applies to the most serious criminal offense. This provision takes into account the type seriousness of the offenses. It is probably based on the fact that if the seriousness of one of the converging offenses is expressed, inter alia, by a certain lower limit of the custodial sentence, the type of seriousness of the converging offenses cannot be expressed by a lower limit of the sentence. Although in the system of criminal rates we rarely encounter cases where an offense with a higher upper limit of the sentence of imprisonment has a lower limit of the sentence than another offense with a lower upper limit, we believe that this provision has in law its justification in the light of the application of the above idea. Although this provision modifies to some extent the principle of absorption
of penalty rates in the direction of tightening, it does not change its essence [8].
According to § 41 par. 2 of the Criminal Code, if a court imposes a cumulative sentence of imprisonment for two or more intentional crimes, at least one of which is a crime committed by two or more acts, the upper limit of the custodial sentence of the most criminal offense is increased by one third. The upper limit of the increased penalty rate may not exceed twenty-five years and in the case of juveniles the penalty rate specified in § 117 par. 1 or 3 of the Criminal Code. In addition to a custodial sentence, another type of sentence may be imposed as part of a cumulative sentence if its imposition would be justified by one of the criminal offenses committed.14
The above provision regulates the imposition of a cumulative sentence of imprisonment. However, the condition is that it is a multi-action concurrence. All offenses committed must be intentional offenses, at least one of which must be a crime. If all criminal offenses were only misdemeanor (intentional), then § 41 par. 1 Criminal Code could be taken into consideration.
Included here is the so-called the principle of aspiration (sharpening principle), which is used only in the context of imprisonment [10]. It does not apply to any other type of sentence, that means sentences without imprisonment [2]. It does not apply even if all the offenses committed are misdemeanor, even all intentional.
The principle of aspiration was reintroduced into the legal order of the Slovak Republic by an amendment to Act No. 171/2003 Coll., When the legislator allowed its application in multi-action concurrency, regardless of whether the concurrence was homogeneous or diverse. The principle of aspiration has been maintained even after the recodification of criminal law, but the conditions for its application have been clarified. In addition to the multiple concurrence of intentional offenses, at least one of the offenses committed was required to be a crime. It is not required that the crime is committed at the stage of completion (such as in § 47 par. 2 of the Criminal Code), but it is sufficient if it reaches the stage of preparation, which is a criminal offense within the meaning of § 13 of the Criminal Code Act.15
The application of the principle of aspiration therefore essentially means that the upper limit of the penalty of imprisonment for the most severe criminal offense is tightened, which means that the upper limit is increased by one third (absorption principle using the element of aspiration). It follows from the case-law of the courts that for the calculation of one third only the upper limit of the penalty of imprisonment needs to be taken into
account.16
For example, if the penalty for the most severe crime is in the range of 3 to 9 years, one third will be determined from the upper limit of 9 years, which is 3 years. One third corresponding to 3 years is added to the upper limit of 9 years, that means in the end the upper limit of the penalty of imprisonment is adjusted to 12 years. The court will be in the range of 3 to 12 years when determining the specific area and no longer has to take into
14 § 41 par. 2 Criminal Code.
15 Rt 2Tdo 7/2008.
16 R 43/2007.
account another requirement stipulated by the Criminal Code, namely to impose a penalty of more than half of the custodial sentence (determined by the offender lower and upper limit of the adjusted sentence of imprisonment and divided by two, in this particular case the lower limit would be added to 3 years and the upper limit to 12 years, which together represents 15 years, after dividing two we would get 7 years and 6 months. Thus, in the given case, the court would have to impose a punishment on the offender in a specific amount of more than 7 years and 6 months, maximum 12 years).
In the past, special attention had to be paid to the legal requirement that the court impose a punishment on the offender in excess of one half of the sentence thus determined. As mentioned above, a court imposing a penalty for converging offenses in the application of the principle of urgency no longer has to oblige the offender to pay a penalty in excess of one-half of the increased, adjusted penalty. According to the judgment of the Constitutional Court of the Slovak Republic, file No. PL. US 106/2011 of 28.11.2012, published under No. 428/2012 Coll. the words "the court shall impose a punishment on the offender in excess of one half of the criminal offense thus given penalty rate of custodial sentence" in the text following the semicolon in § 41 par. 2 of the Criminal Code are not in line with art. 1 par. 1 of the Constitution of the Slovak Republic.
In the opinion of the Constitutional Court of the Slovak Republic, the manner in which § 41 par. 2 Criminal Code. chosenbythelegislatorinresponsetoamultipleconcurrence, does not respect the requirement of proportionality, as it does not allow the offender to be punished according to the criminal offense for which the sentence is imposed. It justifies this by the fact that the contested legislation does not allow the sufficient individualization of punishment and that there is a significant disproportion between the punishment of multiple concurrence and recidivism [8] (which, according to criminal law theory, are considered exact cases of multiple crime).
Pursuant to Art. 125 par. 3 of the Constitution of the Slovak Republic, the provision of § 41 par. 2 Criminal Code, the words in the text after the semicolon "the court shall impose a punishment on the offender over one half of thus determined penalty of imprisonment", on the day of the announcement of the judgment in the Collection of Laws of the Slovak Republic. Due to the fact that the National Council of the Slovak Republic did not bring this provision of the Act into line with the Constitution of the Slovak Republic, this provision lost its validity after 6 months from the promulgation of the judgment in the Collection of Deeds. The findings of the Constitutional Court of the Slovak Republic, which were adopted in plenary and which derogate from criminal law norms, are considered to be a direct source of criminal law.
The situation de lege lata is such that the principle of asperation has remained a part of the Slovak Criminal Code, the legal conditions do not change, the fulfillment of which must be applied. Based on the decision of the Constitutional Court of the Slovak Republic, the scope of tightening the criminal rate of the most criminal offense is changing. When applying the asperative principle in the punishment of concurrence, only the upper
limit of the penalty of imprisonment of the most severe criminal offense will be increased [8].
However, the consequences of the said judgment of the Constitutional Court of the Slovak Republic also occurred at the level of procedural law, not only at the level of substantive law. According to the opinion of the President of the Criminal Law College of the Supreme Court of the Slovak Republic on the basic procedure of the court of first instance in relation to the implementation of the Constitutional Court ruling, it is necessary to pay attention to § 41b par. 1 of Act No. 38/1993 Coll. on the organization of the Constitutional Court of the Slovak Republic, on proceedings before it and on the position of its judges. Pursuant to the provision in question, if the court in criminal proceedings issued on the basis of a legal regulation which later ceased to have effect pursuant to Art. 125 of the Constitution of the Slovak Republic, a judgment which has entered into force but has not been enforced, the loss of effectiveness of such a legal regulation, its part or any provision is the reason for the reopening of proceedings under the provisions of the Criminal Procedure Code.
It results from the above that the loss of effectiveness of a provision (in this case part of the provision of § 41 par. 2 of the Criminal Code) is considered a "fact of a court rather unknown..." within the meaning of § 394 par. 1 Criminal Procedure Code If § 41b par. 1 of Act No. 38/1993 Coll. requires a final judgment which has not been enforced, it will in fact be a final judgment in which all the penalties and protective measures imposed have not been enforced (not even in part). As the reopening of the proceedings is a procedural proceeding, it is clear that the court of first instance will always have to carry out the proceedings in question at the request of the entitled person (especially the accused). The court's obligation to notify in accordance with § 396 par. 4 Criminal Procedure Code is questionable. In the renewed proceedings, the art. 50 par. 6 of the Constitution of the Slovak Republic and § 2 par. 1 of the Criminal Code shall be applied, which determine its temporal scope. This allows, if the judgment has not been enforced, to decide in favor of the offender on the basis of a change in the law caused by a ruling of the Constitutional Court of the Slovak Republic, even if it occurred after the crime and the conviction of the offender.17
In most cases, in practice, the asperation principle is applied in the so-called joint proceedings pursuant to § 18 of the Criminal Procedure Code, from which the only legal way of non-application of the asperative principle can be deduced, namely by using the procedural institute of exclusion of a matter according to § 21 of the Criminal Procedure Code. By using this provision, for separate proceedings within the meaning of § 21 of the Criminal Procedure Code exclude a less serious criminal offense (misdemeanor), then an act qualified as a crime would be discussed, for which a penalty would be imposed taking into account the social harmfulness of the act, despite the fact that the crimes are a purely formal category. Subsequently, a less serious criminal offense (misdemanor) would be discussed, for which a summary sentence would be imposed pursuant to Section 42 of the Criminal Code
17 Tpj 11/2013.
or § 44 of the Criminal Code would be possible, if the court would therefore waive the imposition of a cumulative sentence if the previously imposed sentence appeared to be sufficient [2]. In the given case, the sentence is sufficient if it has been imposed at the upper limit and has not yet been served at all. The summary sentence can also be waived if the summary sentence should be less severe than the sentence previously imposed (the Criminal Code prohibits the summary sentence from being more lenient than the original sentence).
The question of how to proceed with the application of the asperative principle and the current application of § 38 par. 3, or par. 4 Criminal Code, when the upper limit of the penalty rate of imprisonment is reduced due to the predominance of mitigating circumstances, resp. to increase the lower limit of the penalty of imprisonment due to the predominance of aggravating circumstances, from the same penalty for a specific crime. Increasing the upper limit of the penalty rate of imprisonment according to § 41 par. 2 Criminal Code and reduction of the lower limit of the penalty of imprisonment according to § 39 par. 4 Criminal Code shall be performed only taking into account the modified upper, resp. the lower limit of the penalty rate, while § 38 par. 8 Criminal Code the sentence after the semicolon does not apply [2].
In the case of the current application of § 38 par. 3, 4, 5, 6 Criminal Code, § 41 par. 2 Criminal Code and § 39 par. 4 Criminal Code it is necessary in the first place when deciding on the sentence to adjust the penalty rate according to § 38 of the Criminal Code, subsequently adjust the penalty rate according to § 41 par. 2 Criminal Code, that means use the so-called urgency principle and, last but not least, to apply § 39 par. 4 Criminal Code that means a reduction of the lower limit of the penalty rate by one third due to the application of the institute of an agreement on guilt and punishment.18
It is necessary to distinguish the cumulative sentence from the summary sentence. The summary penalty is imposed according to § 42 par. 1 Criminal Code, if the court convicts the perpetrator of a criminal offense which he committed before the conviction was pronounced by a court of first instance for another of his criminal offenses, imposing a summary sentence in accordance with the principles for the imposition of a cumulative sentence. A summary sentence may be imposed only in multiple concurrence, in cases where all criminal offenses of the same offender are decided in various separate proceedings, that means not in joint proceedings pursuant to Section 18 of the Criminal Code. A cumulative sentence takes the place of a cumulative sentence that would otherwise be imposed on the offender if all offenses were decided in joint proceedings. Due to the fact that the imposition of a cumulative penalty is governed by the same principles as a cumulative penalty, the principle of asperation shall also apply in this case, respecting the same conditions as described in § 41 par. 2 of the Criminal Code.
A conviction of a court of first instance means the first conviction for another criminal offense. It is not decisive whether the judgment was given in ordinary proceedings or in proceedings preceded by an extraordinary appeal. A convictioning decision of the court of first instance for
18 NR Tpj 37/2009-9.
another criminal offense in § 41 of the Criminal Code means the first conviction of another criminal offense, regardless of the fact that in the ordinary or extraordinary appeal proceedings the judgment in question was cancelled, provided that this appeal ended with a valid conviction of the offender. When the offender committed another offense after the validity of the first conviction decision of the court of first instance, although this judgment was cancelled at a later stage and a new judgment was issued in the same case, which was preceded by another offense, not a concurrence of the imposition of a collective sentence is not possible.19
Together with the imposition of a summary sentence, the court shall annul the sentence on the offender imposed on the offender by an earlier judgment, as well as all other decisions following this statement if they have lost the basis due to the change caused by the annulment. The summary sentence may not be less severe than the sentence imposed by the earlier judgment. As part of the summary penalty, the court shall impose the penalty of loss of honorary titles and certificates, penalty of loss of military and other rank, penalty of forfeiture of property, fine, penalty of forfeiture, penalty of prohibition of activity or penalty of ban on participation in public events, if such a penalty was already imposed and if this is not prevented by § 34 par. 7 of the Criminal Code.20
In the case of imposing a collective sentence, the court is obliged to take into account the sentence imposed and actually executed by an earlier decision. The substantive conditions for the set-off of detention and punishment are generally regulated by Section 45 of the Criminal Code.
The earlier judgment must be final. If the earlier judgment is not final, the court that decides later, that the second offense, will wait for its decision until the earlier judgment becomes final.21 However, if this court considers that the defendant needs to be acquitted or that the prosecution needs to be stopped, it does not need to wait for the validity of the conviction, rather of the tried crime, to be valid [7].
Application of § 42 par. 1 of the Criminal Code comes into consideration only if an earlier judgment was issued by a court of the Slovak Republic, because from the point of view of the application of the provisions of § 42 and § 44 of the Criminal Code, the courts are not bound by foreign decisions or decisions of the courts of the Member States of the European Union. It is also irrelevant which court issued the said decision in the case of the court of the Slovak Republic [2]. The exception from the requirement to take into account in criminal proceedings decisions of courts of other Member States of the European Union is justified by the very provision of Art. 3 par. 3 and Art. 4 of Council Framework Decision 2008/675/JHA, which stipulates that the taking into account of previous convictions handed down in other Member States may not influence, revoke or revise previous convictions of that Member State or its decisions to enforce them.22 If a Slovak court imposed a summary sentence, with a previous decision issued by a court of another state (regardless of whether it was
19 R 41/1968.
20 § 42 par. 2 of the Criminal Code.
21 R 27/1971.
22 R 41/1968.
a member state of the European Union or not), the Slovak court would interfere with the criminal jurisdiction of another, foreign state by annulling the sentence. given the sovereignty of each state, is unacceptable.
There are cases in which the court imposes an additional sentence on the offender and these must be distinguished from the imposition of a cumulative or summary sentence. According to § 43 of the Criminal Code. If a court convicts an offender of a criminal offense committed before the sentence imposed by an earlier judgment has been executed and imposes a sentence of the same kind, that sentence, together with the part of the sentence imposed by the previous judgment not yet served, may not exceed the maximum amount allowed by the Criminal Code for that type of punishment. If one of these sentences is a custodial sentence, the maximum shall be a period of twenty-five years or a life sentence. In this case, it cannot be a concurrence, because another criminal offense was committed only after the issuance of an earlier conviction, nor recidivism, as the previously imposed sentence has not yet been executed. However, the application of this provision presupposes that the execution of the sentence previously imposed has not yet begun or that the sentence imposed has not yet been fully enforced. From the point of view of the distinction between a summary sentence and another sentence, it is necessary to accurately assess the moment of validity of the decision and the moment of committing the crime. This moment in time is crucial for the assessment and qualification of the proceedings as concurrence and its punishment according to § 41 and 42 of the Criminal Code or recurrences according to § 38 par. 5, 6 of the Criminal Code or false recurrence according to § 43 of the Criminal Code which is assessed separately [2].
OFFSETTING OF CUSTODY AND PUNISHMENT
An important substantive institute applicable to the imposition of a custodial sentence is also the institute of offsetting the detention and punishment. It makes it possible to count the time of restriction of personal liberty in custody (in custody) against the time of restriction of personal liberty, which is calculated within the imposed sentence of imprisonment, for fulfilling the conditions stipulated by law. As follows from the normative wording of § 45 of the Criminal Code, if the offender is prosecuted in custody and convicted in this proceeding, the time spent in custody shall be included in the sentence imposed, or in the cumulative sentence or aggregate sentence, if it is possible to count against the type of sentence imposed. The same applies if the court waives the imposition of a summary sentence or another sentence. If the offender has been apprehended in the course of criminal prosecution and is convicted in this proceeding, the period of restriction of personal liberty (as part of the detention) shall be included in the imprisonment imposed. If the offender has been punished by a court or other authority and has been convicted of the same act, the sentence of imprisonment served shall be included in the sentence of imprisonment imposed. The court proceeds in the same way if it has imposed a summary sentence or a summary sentence on the offender. The court follows the same principles even
if the offender was in custody abroad or if he was punished by an authority of a foreign state for the same act.
STATUS OF CUSTODIAL SENTENCE ULTIMA RATIO AND ALTERNATIVE SENTENCE
The concept of imposing alternative punishments is based on the fundamental ideas of the so-called restorative justice. The basic theses of restorative justice were reflected in the legal order of the Slovak Republic by the adoption of the relevant criminal law, as well as the creation of a system of so-called alternative to short-term imprisonment. Alternative sentences are sentences which, without being linked to imprisonment, guarantee the fulfillment ofthe purpose of the sentence in the same way as if an unconditional sentence of imprisonment had been served on a convicted person. When imposing sentences, the judge has the option of imposing on the convicted person a custodial sentence (in this sense an unconditional short-term custodial sentence) or a sentence that will be served at large (will not be associated with restricting the convicted person's freedom of movement and residence, as in the case of unconditional imprisonment). It is traditionally stated in the professional literature that the meaning and positive advantage of alternative punishments is the fact that they do not tear the offender from his natural environment, do not disrupt his social, family and work ties and the offender will not be exposed to various criminal influences during the sentence. the execution of a custodial sentence in an institution connected with the execution of a sentence.
Alternative punishments are an important tool for protecting society and at the same time remedying offenders in the case of less serious crimes [9]. The aim of introducing and extending alternative sanctions, also in view of the benefits identified, was precisely to strengthen the principle that unconditional imprisonment has the character of an ultima ratio, which should only be applied if other means, ie non-custodial sentences, have failed [5]. At the same time, it is necessary to emphasize that the importance of imprisonment as an ultima ratio follows from the system of punishments for natural persons implicitly and only in the case of juvenile offenders is it expressed expressis verbis in the Criminal Code.
The category of alternative punishments may be included house arrest, compulsory labor, fines and non-participation in public events. The professional public also includes the institute of conditional suspension of the execution of a sentence and the institute of conditional suspension of the execution of a sentence with probation supervision. We state that in the category of alternative punishments it is necessary to include only the above four punishments, because the institutes of the so-called conditional sentence are, in our view, only forms of imprisonment. We proceed from the thesis that it is necessary to distinguish between the concept of alternative way of serving a sentence and alternative punishment.
Alternative punishments and alternative means of sentencing cannot be considered as synonymous terms, although alternative punishments must undoubtedly be included among alternative means of serving sentences. An alternative way of enforcing criminal sanctions
focuses on criminal sanctions, in this case penalties whose conditions for imposing sanctions also allow for another way of enforcing a given type of sanction, not to mention explicitly only alternative punishments. These are punishments for which the Criminal Code, within the conditions of imposing these sanctions, also regulates another alternative, which will occur provided that certain conditions stipulated by the Criminal Code are met, which the Criminal Code provides in advance as an option that may or may not occur. For example, there may be a breach of established obligations, which will result in a change in the manner of serving a sentence, as in the case of a conditional suspension of imprisonment (which will change to an unconditional sentence of imprisonment), resp. change to a different type of punishment than in the case of house arrest or compulsory labor (which will change to an unconditional sentence of imprisonment). On the contrary, a change in the manner of serving a sentence may also occur in a positive direction, provided that the conditions laid down by law are met, as in the case of Section 65a of the Criminal Code, when the remaining part of the custodial sentence is converted into a sentence of house arrest.
In conclusion, it must be stated that in both cases the custodial sentence retains the position of the ultima ratio in the system of sentences in the question of the application of alternative sentences and also the subsidiary character in the question of the application of alternative methods of serving sentences.
The latest legislative changes in the criminal law regulation of alternative sentences - specifically the sentence of house arrest - acquire a certain specific position in the system of sentences of imprisonment, which determines the imposition of alternative sentences, namely the above-mentioned house arrest sentence. The sentence of house arrest has undergone the most significant changes since its introduction to the present. In other country this institute has been used in past especially in the private sector. It was used to people who were strong or influential to be placed in a real prison [14]. Legislative instruments have gradually changed the substantive conditions for the imposition of this punishment, as well as its essence. In the context of the above-mentioned specific status of imprisonment, we consider it necessary to point out the following facts:
The first fundamental change concerns the maximum sentence of house arrest, which also represents the maximum upper limit of the sentence of house arrest. According to the valid legal regulation, this is 4 years (previously 1 year and 2 years). The change in the penalty rate (and thus also the sentencing) was followed by another fundamental change, namely the determination of the range of criminal offenses for which a house arrest sentence may be imposed. From the original range of misdemanors, with an upper limit of the sentence of imprisonment not exceeding five years, the possibility of imposing a house arrest for crimes has been extended. The normative wording of § 53 par. 2 of the Criminal Code, according to which a court may impose a sentence of house arrest of 4 years for a crime with an upper limit of the penalty provided by this Act not exceeding ten years, but at least at the lower limit of the penalty of imprisonment established by the Criminal Code.
According to the original legislative proposal, it was considered that the court could impose a house arrest for a crime for which the Criminal Code in a special part provides for imprisonment with a maximum sentence not exceeding ten years, while the length of the house sentence should not be shorter than the length of the custodial sentence that the court could impose for the act in question. The category of crimes for which a court could impose a house arrest would be tied to the upper limit of the sentence of imprisonment set out in a special part of the Criminal Code, which should not exceed ten years. At the same time, the length of the sentence of house arrest should not be shorter than the length of the custodial sentence that the court could impose for the act in question. According to the Explanatory Memorandum,23 when imposing a sentence of house arrest for a crime, the court would be limited by the length of imprisonment it could impose for the act, which should not exceed 4 years (maximum length of house arrest). However, using a grammatical and logical interpretation, it can be concluded that, although the sentence of house arrest could not be shorter than the custodial sentence that could be imposed for the act, it was not prohibited to be longer than the custodial sentence that could be imposed for the act in question, but not longer than four years (statutory maximum period).
Such a proposed regulation leads to conclusions about a certain complexity of the imposition of house arrest on crimes (although the legislation implies that in criminal offenses). It follows from the proposed legislation exactly that the sentence of house arrest cannot be shorter than the sentence of imprisonment that could be imposed for a given act. In the first place, therefore, the court would have to resolve the question of what custodial sentence it would impose (to what extent). Subsequently, a specific sentence of house arrest would depend on the imposition of a custodial sentence. It can be concluded that the relation of alternative would be kept, such as house arrest sentence as an alternative to imprisonment, because in fact other sentence would ultimately be carried out than imprisonment, but the character of a direct alternative of home arrest to a short short-term custodial sentence would be lost. This idea is also supported by the fact that the maximum sentence of house arrest should be four years. The question arises as to whether a four-year unconditional sentence of imprisonment is still a short-term sentence? In this respect, is a four-year house arrest an alternative to a four-year unconditional sentence of imprisonment, or only an alternative way of serving a custodial sentence, in a broader sense, another form of imprisonment? [13].
In the end, the legal regulation of § 53 par. 2 of the Criminal Code modified in that the sentence of house arrest must be imposed at least at the lower limit of the sentence of imprisonment established by the Criminal Code. This eliminated some of the complexity of house arrest described above. However, the specific or determining status of the custodial sentence determining the specific sentence of house arrest, that is the scope of alternative punishment, remains dominant. The specific sentence of house arrest must correspond at least to the lower limit
23 Explanatory memorandum to the draftof the amendment to the Criminal Code.
of imprisonment. The custodial sentence thus remains relevant for the imposition of an alternative sentence, as the sentences of the custodial sentence themselves should first be modified in accordance with the provisions of Section 38 of the Criminal Code and thus subsequently determine the specific sentence of house arrest.
TRANSFORMATION OF THE REST OF THE SENTENCE OF IMPRISONMENT INTO THE PENALTY OF HOME ARREST
In relation to alternative options for serving a custodial sentence, we could, in addition to the conditional suspension of the execution of a custodial sentence, also mention the institute of converting the rest of the custodial sentence into house arrest, which was introduced into our law with effect from January 1, 2016. "Back-end" is a type of house arrest and at the same time represents an alternative to serving a custodial sentence, where in fact house arrest becomes an alternative to the rest of an unconditional sentence of imprisonment [7].
The court may convert the unexecuted remaining part of the unconditional sentence of imprisonment, which was imposed only for the misdemeanor, if the conditions stipulated by the Criminal Code are cumulatively fulfilled. It follows from the normatively set conditions implicitly, but at the same time by a logical interpretation, that this is an unconditional sentence of imprisonment, even if the legislator does not speak exactly about this form.
The normative conditions for the application of a given institute are precisely specified in § 65a of the Criminal Code, require cumulative fulfillment and at the same time are synthetically bound to the conditions of the sentence of house arrest, which logically must be met in order for this sentence to be carried out. When converting a custodial sentence into a house arrest sentence, the same ratio is maintained as in the case of converting a house custodial sentence into a custodial sentence (if the convict violates the conditions of serving a prison sentence), i.e. 1: 1 (one day of imprisonment equals one day house arrest). The court will determine the sentence of house arrest according to the number of remaining days of imprisonment.
From the essence and purpose of the institute in question, it can be deduced that it represents a benefit in the field of alternative methods of serving sentences. However, application practice shows that it is not a popular and frequented alternative for several reasons. The most fundamental reason seems to be the lack of interest of the convicted persons themselves in this institute. First of all, it should be borne in mind that the execution of a house arrest requires the convicted person to share in the costs of operating the technical means and not every convict is willing and able to participate financially in the execution of the house arrest. In the case of an unconditional sentence of imprisonment, the execution of that sentence is predetermined by the State. More often, the lack of interest in converting the remainder of a custodial sentence into a house arrest is justified by the fact that convicted persons are much more interested in using the institution of conditional release, which is less invasive in terms of prisoner's restrictions than in prison. In terms of the efficiency and frequency of use of this institute, it would be appropriate to simplify
and adjust the conditions determining the applicability of this alternative so as to increase the interest of convicted persons in this institute [9].
STATISTICS ON CUSTODIAL SENTENCE AND ALTERNATIVE SENTENCE
The Ministry of Justice of the Slovak Republic annually publishes on its website comprehensive statistics on the criminal agenda covering, among other things, the imposition of individual types of punishment.24 It is clear from the above statistics how many sentences of imprisonment in its individual forms (unconditional imprisonment, conditional suspension of imprisonment, conditional suspension of imprisonment with probation supervision), but also alternative sentences (home arrest, compulsory work) was imposed (refer with Table 1).
Regarding the imposition of unconditional imprisonment in the observed years 2007 to 2018, it can be stated that it maintained a stable tendency to imprisonment in the years 2007 to 2014. Subsequently, in 2015 to 2017 there was a slight decrease compared to previous years, but again while maintaining a steady trend storage in those three reference years. In 2018, there was an increase in the number of unconditional sentences imposed, although changes in the imposition of alternative sentences, in particular the technical control of their execution, were anticipated and expected by another result, namely lower numbers.
In the case of conditional suspension of imprisonment, an annual increase can be observed in the years 2007 to 2013 (with the exception of 2011, when there was a decrease) in the number of imposed so-called conditions. Since 2014, there has been a gradual decrease in the number of sentences imposed, while the last three monitored years have maintained a more or less stable trend.
In the case of conditional suspension of the execution of a custodial sentence with probation supervision, an increasing trend in the number of deposits can be observed in the years 2007 to 2018, with the exception of 2014 and 2016, when there was a decrease.
As regards alternative sentences, in the case of house arrest, the number of sentences first increased between 2007 and 2010, and in the following years 2011 to the present (with two exceptions, 2016 and 2018, when there was a very slight increase). The punishment of compulsory labor is characterized by an increasing trend of imposition from 2007 to 2013; since 2014, statistical data have shown a declining trend, which can be considered a rapid decline (for comparison, in 2013 the penalty of compulsory labor was imposed 3581 times and in 2018 only 1085 times).
Regarding the reference period from 2015 to the present, statistical yearbooks consistently state that the most frequently imposed sentence for the reference period was a conditional suspension of imprisonment (even for juvenile offenders), which is not in line with the purpose of the current criminal policy in the Slovak Republic, which focuses on the wider application of alternative punishments.
24 The Ministry of Justice of the Slovak Republic annually publishes statistical yearbooks on its website justice.gov.sk. The Statistical
Yearbook for 2019 is still in the process of being processed, therefore it has not been included in this article.
Table 1
YEAR UNCOND COND COND WITH PROB HOME ARREST COMPULSORY WORK
2007 5430 16 710 720 25 349
2008 5391 18 342 1022 28 578
2009 5933 19 426 1316 51 830
2010 6291 18 915 1348 59 1352
2011 5754 17 607 1329 28 2265
2012 5913 19 712 1479 25 3123
2013 5095 20 813 1761 21 3581
2014 5333 18 983 1544 17 3351
2015 4946 17 752 1880 18 3037
2016 4871 16 927 1575 23 1599
2017 4801 16 639 1982 14 1393
2018 5842 16 153 1980 28 1085
Number of given sentences in the years 2007-2018: UNCOND - unconditional sentence; PO - conditional suspension of custodial sentence; COND WITH PROB - conditional suspension of the custodial sentence with probation supervision; HOME ARREST - sentence of home arrest; COMPULSORY WORK - sentence of compulsory work.
PRISON PROBLEMS
In the context of the current problems of prisons in general, the issue of a constant increase in the number of accused and convicted persons in prisons resonates in particular. It is for this reason that the need for systemic changes in the prison system in our conditions is emphasized, whether in the field of alternative punishment to unconditional imprisonment, in the field of economic and economics, as well as in the field of post-penitentiary care. Changes in the field of prisons, like all other changes in the field of public administration, are essentially dependent on the economic conditions of a particular state, as well as on priorities that are socially and politically recognized at the time [3].
The basic problem of ensuring adequate conditions for the execution of imprisonment and the development of prisons The Concept of prisons identifies the long-term unfavorable development of the number of prisoners and the associated exceeding of accommodation capacities, unfavorable technical condition and structure of prisons and facilities. The index of the Slovak prison population ranks very low among other European countries.25
In connection with the growing overcrowding of individual institutions for the execution of a custodial sentence (hereinafter referred to as "UVTOS"), we draw attention to Annex No. 5 to the Concept of Prison, which reflects the insufficient accommodation area in square meters per convicted person in UVTOS with a minimum degree of guarding. The average accommodation area in UVTOS Hrnciarovce nad Parnou, Dubnica nad Vâhom, Sabinov, Kosice-Saca and Sucany was only 2.88 m2 per convicted person in 2011. According to the provisions
25 The concept of the prison of the Slovak Republic for the years 2011-2020, Update p. 5. Information on http://www.rokovania.sk/ Rokovame.aspx/BodRokovamaDetail?idMaterial=22614
of § 18 par. 1 Act. No. 475/2005 Coll. on the Execution of Custodial sentence as amended (hereinafter referred to as the "Act on the Execution of Custodial sentence"), the accommodation area in a cell or room for one convicted person shall be at least 3.5 m2, which in 2011 did not meet none of the above UVTOS with a minimum degree of guarding.
In general, the situation can be assessed as a violation of the principle of legality, which the legislator tried to avoid by the wording in the third sentence of the cited provision of the Act on the Execution of Custodial sentence according to which, if the number of convicted persons in the institution increases excessively, the accommodation area can be reduced temporarily. Reduction of accommodation of a convicted person should respect the principle of proportionality of interference with the fundamental rights and freedoms of convicted persons, according to which long-term failure to achieve statutory accommodation for one convicted person can be described as a violation of the principle of legality [12].
The long-term unsustainable state of the Slovak prison is also supported by the conclusions of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which reiterated in the Report to the Slovak Government on the visit to the Slovak Republic its recommendation that the minimum accommodation should be increased to 4 m2 per one prisoner accommodated in a multi-seat cell, and that on this basis it is necessary to recalculate the official capacities of UVTOS in the Slovak Republic.26
26 Report for the Government of the Slovak Republic on the visit of the Slovak Republic by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT council) on 24.9.2013 az 3.10.2013. Information on http://
www.rokovania.sk/File.aspx/ViewDocumentHtml/Mater-Dokum-167584?prefixFile=m_
Despite the facts described above, in the context of the processed statistical data, it can be stated that the imposition of an unconditional sentence of imprisonment is still frequent. Imposition of so-called conditional sentence of imprisonment is frequent compared to alternative sentences.
INFLUENCE OF PRIVATE PRISONS ON IMPRISONMENT
The issue of the construction of private prisons resonates more and more in the professional public in the Slovak Republic, as in other countries. Privatized prison systems have their own specifics in each country, which can be understood as a reflection of the current socio-political situation and society's view of the extent to which the private sector can participate in the provision of public services. The participation of the private sector in the state prison system is therefore either limited, partially limited or free. In this context, Chi distinguishes 5 basic models of prison system privatization:
1) private service model;
2) private construction model;
3) private management model;
4) private takeover model; 5. private ownership and
operation model.
These are models that depend on the extent and extent to which the private sector participates in the prison system. In countries that currently have a system of private prisons, one of these models of private prisons can in principle be found [11].
The Slovak Republic has struggled for long with the problem of the capacity of prisons, which is determined by the unfavorable development of the number of persons sentenced to unconditional imprisonment. As already mentioned in this article, the legal accommodation capacities are not observed, the prison facilities themselves show an unfavorable technical condition, the age structure of the facilities is also relevant, while insufficient financing of prison needs or investment debt cannot be neglected. The construction of a new prison facility, which would significantly expand the capacity options for convicts, can be considered a relatively simple solution. This solution also follows from the Feasibility Study for the construction of the Rimavska Sobota - Sabova prison facility in the form of a public-private partnership,27 according to which there is a significant shortage of accommodation capacity to be ensured by the construction of a new building; expanding the capacity intended for the execution of a custodial sentence is a strategic priority of the Ministry of Justice of the Slovak Republic and the Prison and Judicial Guard Corps.
The need for the construction of such a facility was also supported by the Prison and Judicial Guard Corps with a forecast of the number of accused and convicted persons mapping the number of presumed accused and convicted
27 Update of the Feasibility Study for the Construction of a Prison Facility Rimavska Sobota - Sabova by the form of public-private partnership. Information on https://www.zvjs.sk/file/cf303722-a449-4a68-a367-bb6062453fd9.pdf
persons until 2035,28 which he had prepared according to a demographic forecast. According to the above forecast, the trend of the prison population is expected to increase in the medium term by the end of 2021 from the trend curve of the number of prisoners to date, while the Slovak Republic must take into account the situation where which would increase the number of convicted persons.
However, the above solution can be considered ideal only in the case of sufficient funding on the part of the state. Therefore, the relevant ministries decided to implement the project of building a new prison facility in Rimavska Sobota, in the form of a public-private partnership, as the Feasibility Study evaluated this form as the cheapest option and at the same time financially approved the model. disadvantageous. The essence of this model is that the private partner will ensure the construction and operation of the prison facility, with the exception of activities that must be provided by the state - especially activities falling within the competence of the Prison and Judicial Guard Corps (guarding convicts, working with convicts). In particular, the Feasibility Study points to the fact that the existence and implementation of this model does not require major legislative changes, in other words, the current legislation allows such a model to work.
Public-private partnerships called PPP (Public -Private Partnerships) can be characterized as a long-term partnership of the public and private sector, which aims to provide quality public infrastructure and public services. This term is not legally defined in Slovakia. This is a general technical concept and the way in which the public sector provides a public service through a private company. In its Green Book on PPPs, the European Commission defines public-private partnerships as a form of cooperation between public authorities and the private sector for the purpose of financing, building, renovating, operating and maintaining infrastructure and providing services through that infrastructure.
The area of infrastructure projects in the area of accommodation facilities is suitable for implementation in the form of a PPP project, mainly due to the fact that these are investment-intensive projects that can be expected to be used for a relatively long period. Also estimate the necessary maintenance and operating costs in advance. The basic features of PPP projects include the long-term nature of cooperation, the distribution of project risks, where the risks of the project are taken over by a private partner. The private partner is involved in several phases of the project, financing the project in whole or in part. In return, he is provided with services related to the work for payments either from users or from a public partner or a combination thereof. The PPP project must be economically advantageous and use the experience of a public and private partner. With an optimal distribution of risks, a synergistic effect with a positive impact on economic efficiency can be achieved.29
28 Information on https://www.zvjs.sk/file/8682fad1-1ca2-4430-8798-14b80512289a.pdf
29 Update of the Feasibility Study for the Construction of a Prison Facility Rimavska Sobota - Sabova by the form of public-private partnership Information on https://www.zvjs.sk/file/cf303722-a449-4a68-a367-bb6062453fd9.pdf
It is not the purpose of this paper to analyze the Feasibility Study in detail. The author tries to point out the fact that the current and long-term problems of prisons in the Slovak Republic are also being solved by the state by gradually introducing private elements or elements of privatization into the public sector of prisons.
The model described above also works in the neighboring Republic of Hungary, where since 2008 the convicted persons were placed in two private prisons (SZOMBATHELY and TISZALOK), where unconditional imprisonment is carried out on convicted men and women at all levels of guarding; these facilities also include the performance of bonding. The website of the Prison and Judicial Guard Corps30 currently registers 10 institutions for the execution of a custodial sentence and 8 prisons, where a detention center and an institution for the execution of a custodial sentence are present at the same time, i.e. a total of 18 prisons, from of which 13 buildings are older than 30 years. There are currently 31 state prisons, 2 private prisons in operation in Hungary and the need to build another 8 prisons (with a high probability of a state character) is announced.
In the neighboring Czech Republic, the legislative basis for the possibility of establishing a private prison is provided through the provisions of § 13 of Act No. 169/1999 Sb. on the Execution of Sentences of Imprisonment and on the Amendment of Certain Related Laws. Pursuant to the provision in question, the Minister may also establish a prison in a building other than the one administered by the Prison Service, provided that the owner of such a building agrees and concludes a contract for the establishment of easements. The building in which the prison is established is managed and operated by the owner of the building on the basis of a contract concluded with the Prison Service. However, the prison service is responsible for guarding, treating convicts and complying with the legal conditions of serving a sentence. It also operates state construction supervision in these buildings. The conclusion of a contract on administration and operation does not affect the right to supervise and control the execution of the sentence. With the above legal wording, the Czech legislator created the legislative basis for the possibility of privatization of prisons in the Czech Republic. Based on the above, it can be stated that the topicality of the privatization of the prison system in the Slovak Republic is not a utopian idea at all [12].
It should be added that in connection with the preparation of the above-mentioned law, the Czech Republic began to consider the possibilities of implementing the privatization of the prison system, and the form of the so-called PPP projects. Even after almost 25 years, it can be stated that the said idea did not take on real forms, even though real efforts were being made to implement it. At the end of 2006, the construction of a private prison was to begin on land in Rapotice, which the Czech Army transferred to the Ministry of Justice of the Czech Republic free of charge. According to the original intentions, the private partner of the Czech Republic was to design, build, finance and subsequently ensure the operation and employment of convicted persons for a private prison
30 Information on https://www.zvjs.sk/sk
for a certain period (25 years). In that period, the State was to gradually repay the private partner the amount of its investment on the basis of the lease. After the end of the term of the contract, the relevant rights and obligations, or property, were to be transferred back to the Prison Service of the Czech Republic. The private prison in Rapotice was to be managed by a person of a public authority, its representative was to be a person from the private sector, while supervision and security would be provided by the Prison Service of the Czech Republic during the current operation of a private entity. Despite these efforts, the project of private prisons in the Czech Republic was finally stopped by the Government of the Czech Republic in June 2013 [1].
Following the issues of the previous paragraph, the result can be generated that the privatization of prisons, and thus the existence of private prisons, should determine the imposition of imprisonment in its unconditional form in a positive direction and at the same time significantly determine the existence of current prison problems related to accommodation facilities. Of course, the advantages of the existence of private prisons could be identified by several, but only if the formulation and creation of a functional model that respects the constitutional and legal limits, legal and non-legal guarantees of legality.
In this sense, the existence of private prisons could determine the frequency of imposition of unconditional imprisonment, which in our opinion would probably be increased, as the burning problem of accommodation capacity of convicted persons would be solved. It is also possible to consider the situation that at the same time the decision-making practice of courts in the area of imposing alternative punishments could be influenced, the frequency of imposition of which could decrease (although the monitored statistical data show a low frequency of long-term imposition with penetration to the present). In the professional public, as well as in the relevant department, differentiated causes of a low number of imposition of alternative punishments are searched for and detected, and in addition to objective determinants, determinants of a subjective nature are also formulated at the level of bodies applying the above criminal law institutions.
CONCLUSION - EVALUATION OF THE LEGISLATION
Imprisonment is a type of criminal sanction that can be imposed for any crime, so it can be considered a universal type of punishment, which ultimately results from the very fact that in a special part of the Criminal Code, only criminal rates are determined for each crime. Custodial sentence has an ultima ratio status in the system of penalties, which results from the placement of a custodial sentence in the catalog of sentences, the nature, nature and relation of imprisonment and alternative sentences, the impact of imprisonment on alternative sentences, and special legislation on the punishment of juvenile offenders, which sets out the principle of expressis verbis.
Statistics show that imprisonment is still the most severe sentence. The substantive conditions for the imposition of a sentence contained in the Criminal Code do not cause fundamental problems in the application practice, but
nevertheless it is possible to detect certain problems which are related to the imposition of a custodial sentence in its specific forms. Problems of application practice in the issue of sentencing relate primarily to the conditional suspension of the execution of a custodial sentence and the conditional suspension of the execution of a custodial sentence with probation supervision. In the case of the imposition of an unconditional sentence of imprisonment, the capacity of prison facilities, which represent the place of execution of a sentence of imprisonment, appears to be a cardinal problem. Application practice, but also criminal law responds to this fact with necessary, although not always systemic solutions, such as the construction of a new prison facility using a private element representing the privatization element in prisons, but also by expanding the possibility of imposing alternative sentences to effectively replace imprisonment, although statistics recording the number of alternative sentences imposed do not confirm this trend.
Imprisonment is a relatively certain sanction if the Criminal Code provides for its penalty rates. The upper and lower limits of the sentences of imprisonment may be further modified in the framework of the application of the principle of legal individualisation of punishment, through the provisions of the general part of the Criminal Code. Selected provisions of the general part of the Criminal Code ex lege determine the individualization of the sentence, and thus the achievement or fulfillment of its primary purpose, but also partial goals, which are also a means to achieve the primary goal of protecting society from crime and perpetrators. However, the Criminal Code also defines a custodial sentence as an absolutely certain sanction, when it precisely sets the sentence at 25 years or life imprisonment.
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Статья поступила в редакцию 17.05.2020, принята к публикации 25.06.2020 The article was received on 17.05.2020, accepted for publication 25.06.2020
ABOUT THEAUTHOR
Simona Ferencikova, Faculty of Law, Pavol Jozef Safarik University in Kosice. Kosice, Slovakia. ORCID: https://orcid. org/0000-0002-7897-0168. E-mail: simona.ferencikova@ upjs.sk
СВЕДЕНИЯ ОБ АВТОРE
Simona Ferencíková, Университет Павла Йозефа Шафа-рика в Кошице, юридический факультет. Кошице, Словакия. ORCID: https://orcid.org/0000-0002-7897-0168. E-mail: [email protected]
