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НОВЫЕ РЕШЕНИЯ В ПРАВОТВОРЧЕСТВЕ NEW SOLUTIONS TO THE LAW-MAKING
DOI: 10.33693/2223-0092-2020-10-6-13-30
Electronic monitoring of sentenced persons in Slovak legal practice
J. Klatik3 ©, L. Klimekb ©
Matej Bel University,
Banska Bystrica, Slovak Republic
a E-mail: jaroslav.klatik@umb. sk b E-mail: libor.klimek@umb. sk
Abstract. The work deals with practical issues of electronic monitoring of sentenced persons in the Slovak Republic. It is divided into seven sections. The first section deals with applicable law - the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments. The second section analyses types of the control of the enforcement of decisions and their use. The third section introduces the requirements for the control. The fourth section briefly introduces the application of the system in civil proceedings. The fifth section points out at the interference of the control with the right to privacy. The sixth section answers the question if the system was a good investment or a wasting of money. The last seventh section introduces recommendations for policymakers and legal practitioners.
Key words: electronic monitoring, Slovak criminal justice, Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments, types of the control, recommendations for policymakers and legal practitioners
Acknowledgements. This work was supported by the Slovak Research and Development Agency under the contract No. APVV-15-0437.
FOR CITATION: Klatik J ., Klimek L. Electronic monitoring of sentenced persons in Slovak legal practice. Sociopolitical Sciences. 2020.Vol . 10 . No. 6 . Pp . 13-30 . DOI: 10.33693/2223-0092-2020-10-6-13-30
DOI: 10.33693/2223-0092-2020-10-6-13-30
Электронный мониторинг осужденных в словацкой юридической практике
Я. Клатика ©, Л. Климекь ©
Университет Матея Бела, г Банска Быстрица, Республика Словакия
a E-mail: jaroslav.klatik@umb. sk ь E-mail: libor.klimek@umb. sk
Аннотация. Работа посвящена практическим вопросам электронного мониторинга осужденных в Словацкой Республике. Статья разделена на семь разделов. Первый раздел касается применимого права - Закона № 78/2015 Coll. о контроле за исполнением тех или иных решений техническими инструментами. Во втором разделе анализируются виды контроля за исполнением решений и их использованием. В третьем разделе представлены требования к контролю. В четвертом разделе кратко рассказывается о применении системы в гражданском судопроизводстве. Пятый раздел указывает на вмешательство контроля в право
на неприкосновенность частной жизни. Шестой раздел отвечает на вопрос, была ли система хорошей инвестицией или пустой тратой денег. В последнем седьмом разделе представлены рекомендации для политиков и практикующих юристов.
Ключевые слова: электронный мониторинг, уголовное правосудие Словакии, Закон № 78/2015 Coll. о контроле за исполнением тех или иных решений техническими инструментами, типах контроля, рекомендации для политиков и практикующих юристов
Благодарности. Эта работа была поддержана словацким агентством исследований и разработок в соответствии с контрактом № 1 АПВВ-15-0437
ДЛЯ ЦИТИРОВАНИЯ: Клатик Я., Климек Л. Электронный мониторинг осужденных в словацкой юридической практике // Социально-политические науки. 2020. Т 10 . № 6 . С . 13-30 . РО!: 10.33693/2223-0092-2020-10-6-13-30
INTRODUCTION
The implementation of the electronic monitoring of persons in the Slovak Republic was challenging task for the Ministry of Justice of the Slovak Republic. It started in 2013 when the Ministry of Justice launched the project entitled "Electronic Personnel Monitoring System" (Slovak - Elektronicky system monitorovania osob, also known as ESMO). As a result, in 2015 the Slovak Republic adopted the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments. The Act came into force on July 1, 2015, but the real application of the system launched in the following years.1
As regards functioning of the electronic monitoring in the Slovak Republic, many controversial issues can be observed in legal practice. The work is focused on the most crucial practical issues of this system in the Slovak Republic.
APPLICABLE LAW: ACT NO . 78/2015 COLL . ON CONTROL OF THE ENFORCEMENT OF CERTAIN DECISIONS BY TECHNICAL INSTRUMENTS
Electronic monitoring of sentenced persons in the Slovak Republic is regulated by the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments2 as amended by later legislation. It is Slovak national law regulating electronic monitoring of sentenced persons. The drafting of this Act was based on similar national legislation in other States.
The Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments regulates the technical instruments and the conditions for their use in controlling the execution of certain selected types of decisions in criminal matters in criminal proceedings. As regards use the of technical instruments in case of execution of custodial sentence, at the place of imprisonment for the purpose of control of convicted persons shall be applicable the Act No. 475/2005 Coll. on the Enforcement of the Custodial Sentence. However, the provisions of Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical
1 Details see, for example: Klatik J., Klimek L. Implementation of electronic monitoring of sentenced persons in the Slovak Republic. Sociopolitical Sciences. 2020. Vol. 10. No. 5. Pp. 59-75.
2 Original name of the national law in Slovak language: zakon c. 78/2015 Z. z. o kontrole vykonu niektorych rozhodnuti tech-nickymi prostriedkami v zneni neskorsich predpisov.
Instruments, when using the technical instruments in this context, shall be used appropriately.
The objective of the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments is to create the legal conditions for the effective application of the control of execution of certain selected decisions - in particular judicial decisions adopted by the courts - by technical instruments. Such technical instruments should improve the use of alternative sanctions or alternative criminal proceedings. The preparation of the draft version of the Act was focused as well, among others, on redefinition of probation in the Slovak Republic, new understanding of the house arrest as criminal sentence and it introduced the possibility of turning the rest of the prison sentence into house arrest.
Adoption of the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments had impact on Slovak national legal order. Besides its adoption several relevant laws were amended, in particular:
• Act No. 300/2005 Coll. - Criminal Code as amended by later legislation.3 This Act regulates the basics of criminal liability, types of penalties, types of protective measures, their imposition and the elements of criminal offenses;
• Act No. 301/2005 Coll. - Criminal Procedure Code as amended by later legislation.4 This Act regulates the procedure of law enforcement authorities and courts so that criminal offenses are duly clarified and their perpetrators sanctioned fairly by law, respecting the fundamental rights and freedoms of natural persons and legal persons;
• Act No. 475/2005 Coll. on the Execution of a Custodial Sentence as amended by later legislation.5 This Act regulates the executions of the custodial sentence, the rights and obligations of sentenced persons and the supervision and control of the execution of this sentence;
• Act No. 221/2006 Coll. on the Execution of a Detention as amended by later legislation.6 This Act regulates enforcement of the detention, the rights and obligations
3 Original Slovak name of this law: zakon c. 300/2005 Z. z. - Trestny zakon v zneni neskorsi'ch predpisov.
4 Original Slovak name of this law: zakon c. 301/2005 Z. z. - Trestny poriadok v zneni neskorsi'ch predpisov.
5 Original Slovak name of this law: zakon c. 475/2005 Z. z. o vykone trestu odnatia slobody v zneni neskorsi'ch predpisov.
6 Original Slovak name of this law: zakon c. 221/2006 Z. z. o vykone vazby v zneni neskorsich predpisov.
of the accused person in the detention and the supervision and control over its enforcement;
• Act No. 549/2003 Coll. on Judicial Officers as amended by later legislation.7 This Act regulates the status and activities of judicial officers;
• Act No. 550/2003 Coll. on Probation and Mediation Officers as amended by later legislation.8 This Act regulates execution of the probation and mediation in criminal matters as a part of the criminal proceedings;
• Act No. 160/2015 Coll. - Civil Dispute Code as amended by later legislation.9 This Act regulates the procedure of the court, the parties to the dispute and persons involved in the proceedings when hearing and resolving disputes;
• Decree of the Ministry of Justice of the Slovak Republic No. 178/2015 Coll. on Material and Technical Conditions of Use of Technical Means;10
• Decree of the Ministry of Justice of the Slovak Republic No. 225/2015 Coll. Laying Down the Amount of Reimbursement of the Costs of the Control by Technical Means.11
Electronic monitoring of sentenced persons in Slovak criminal justice is understood as alternative in standard criminal proceedings. There is no obligation to use this system. Indeed, control by technical instruments is an optional possibility, not a mandatory obligation.12
Under the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments control by technical instruments shall mean an activity to verify compliance with the law, obligations or restrictions imposed by decision by technical instruments and by a central monitoring system.13 A decision for purposes of this Act shall mean an enforceable decision issued by court or public prosecution office in order to impose a prohibition, a restriction or an obliga-
7 Original Slovak name of this law: zakon c. 549/2003 Z. z. o sudnych uradnikochv zneni neskorsich predpisov.
8 Original Slovak name of this law: zakon c. 550/2003 Z. z. o probacnych a mediacnych uradnikoch v zneni neskorsi'ch predpisov.
9 Original Slovak name of this law: zakon c. 160/2015 Z. z. - Civilny sporovy poriadok v zneni neskorsi'ch predpisov.
10 Original Slovak name of this law: vyhlaska Ministerstva spravodliv-osti Slovenskej republiky c. 178/2015 Z. z. o materialno-technickych podmienkach pouzitia technickych prostriedkov.
11 Original Slovak name of this law: vyhlaska Ministerstva spravod-livosti Slovenskej republiky c. 225/2015 Z. z., ktorou sa ustanovuje suma nahrady nakladov vykonu kontroly technickymi prostried-kami.
12 See also: Klimek L. Execution of electronic monitoring in Slovak criminal justice. 10th Academic International Conference on Interdisciplinary Legal Studies. Oxford conference series proceedings. Livingston: FLE Learning, 2019. Pp. 22-29; Klimek L. Costs of electronic monitoring in Slovak criminal justice. Academic International Conference on Social Sciences and Education. Cambridge Conference Series. Cambridge: FLE Learning, 2019. Pp. 8-13; Klimek L., Klatik J. Electronic monitoring in Slovak criminal justice. In Innovations in Science and Education. CBU International Conference Proceedings. Prague: CBU Research Institute, 2019. Pp. 459-463; Klimek L. Law on the electronic monitoring at the level of the European Union and in the Slovak Republic [Slovak - Pravna uprava elektronickeho mon-itoringu na urovni Europskej unie a v Slovenskej republike]. Castle Days of Law in Banska Bystrica [Slovak - Banskobystricke zamocke dni prava]. Conference Proceedings. Banska Bystrica: Belianum, 2019. Pp. 69-75.
13 Article 2(a) of the Act No. 78/2015 Coll. on Control of the Enforce-
ment of Certain Decisions by Technical Instruments.
tion, or enforceable decision imposing the house arrest as sentence.14
It should be noted that as a result of practical needs two important amendments the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments have been needed so far. First, it was amended by the Act No. 321/2018 Coll.,15 which came into force on January 1, 2019. This amendment was a response to problematic introduction of the electronic system for monitoring persons in the Slovak Republic [1: 131-165]. Second, the national law was amended also by the Act No. 214/2019 Coll.,16 which came into force on August 1, 2019. This amendment of legislation was a consequence of the practice, within which it is clear that as regards the number of sentences imposed, unconditional custodial sentences and conditional custodial sentences are the majority of sentences, followed by the compulsory work, the financial penalty and the prohibition of activity [1: 131-165]. Moreover, these Acts amended also related relevant Slovak national legislation in the area of electronic monitoring of sentenced persons, among others:
• Act No. 300/2005 Coll. - Criminal Code;
• Act No. 301/2005 Coll. - Criminal Procedure Code;
• Act No. 550/2003 Coll. on Probation and Mediation Officers;
• Act No. 475/2005 Coll. on the Execution of a Custodial Sentence.
The legal regulation of electronic monitoring of sentenced persons at European level, in principle, almost does not exist. A comprehensive legal regulation has never been adopted. Indeed, European legal standards for electronic monitoring for all European States, including the Slovak Republic, do not exist.
As regards the European Union perspective, a modest reference to electronic monitoring contains only
14 Article 2(b) of the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments. In Slovak criminal justice and criminal legislation can be observed many definitions and understandings of the term decision. In principle, the most important is the definition in the Act No. 301/2005 Coll. - Criminal Procedure Code as amended by later legislation (Articles 162 et seq.). It is a general law regulating criminal procedure in the Slovak Republic. However, the term decision is regulated also by special law regulating special aspects of criminal proceedings, for example, the Act No. 549/2011 Coll. on the Recognition and Enforcement of Decisions Imposing Criminal Sanction Involving Deprivation of Liberty in the European Union as amended by later legislation [Article 3(a)] and the Act No. 533/2011 Coll. on the Recognition and Enforcement of Judgments Imposing Penal Sanction Not Involving Deprivation of Liberty or Probation Measures with a View to the Supervision in the European Union as amended by later legislation [Article 3(a)].
15 Original Slovak name of this law: zakon c. 321/2018 Z. z., ktorym sa meni a doplna zakon c. 550/2003 Z. z. o probacnych a mediacnych uradnikoch a o zmene a doplneni niektorych zakonov v zneni neskorsich predpisov a ktorym sa menia a doplnaju niektore zakony. See also: Explanatory memorandum of the Proposal for the Act No. 321/2018 Coll.; Klatik J., Klimek L. Implementation of electronic monitoring of sentenced persons in the Slovak Republic. Sociopolitical Sciences. 2020. Vol. 10. No. 5. Pp. 59-75.
16 Original Slovak name of this law: zakon c. 214/2019 Z. z., ktorym sa meni a doplna zakon c. 300/2005 Z. z. Trestny zakon v zneni neskorsich predpisov a ktorym sa menia a doplnaju niektore zakony. See also: Explanatory memorandum of the Proposal for the Act No. 214/2019 Coll.; Klatik J., Klimek L. Implementation of electronic monitoring of sentenced persons in the Slovak Republic. Sociopolitical Sciences. 2020. Vol. 10. No. 5. Pp. 59-75.
the Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions17 (hereinafter "Framework Decision 2008/947/JHA on mutual recognition of probation measures and alternative sanctions"). The Framework Decision 2008/947/JHA on mutual recognition of probation measures and alternative sanctions aims at facilitating the social rehabilitation of sentenced persons, improving the protection of victims and of the general public, and facilitating the application of suitable probation measures and alternative sanctions, in case of offenders who do not live in the State of conviction. With a view to achieving these objectives, it lays down rules according to which a Member State of the EU, other than the Member State in which the person concerned has been sentenced, recognises judgments and probation decisions and supervises probation measures imposed on the basis of a judgment, or alternative sanctions contained in such a judgment, and takes all other decisions relating to that judgment.18 In the Preamble to the Framework Decision 2008/947/JHA on mutual recognition of probation measures and alternative sanctions it is stated that "where appropriate, electronic monitoring could be used with a view to supervising probation measures or alternative sanctions, in accordance with national law and procedures"19 (emphasis added). On the other hand, detailed provisions addressed to States are not stipulated in the Framework Decision.
As regards the Council of Europe perspective, it introduced the Recommendation CM/Rec(2014)4 on electronic
17 Council Framework Decision 2008/947/JHA of November 27, 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions as amended by the Framework Decision 2009/299/JHA. Official Journal of the European Union, L 337/102 of December 16, 2008. See, for example: Klimek L. Mutual recognition of judicial decisions in European criminal law. Cham: Springer, 2017. Pp. 303-330; Klimek L. Mutual recognition of alternative sanctions in the European Union [Slovak - Vzajomne uznavanie alternativnych sankcii v Europskej unii]. In: Stremy T. (ed.). Restorative Justice and the System of Alternative Punishments [Slovak - Restorativna justicia a system alternativnych trestov]. Conference Proceedings. Prague: Leges, 2017. Pp. 308-319; Balaz P. Principles and European rules and their implementation in the imposition and enforcement of alternative punishments [Slovak - Zasady a europske pravidla a ich implementacia pri ukladani a vykone alternativnych trestov]. In: Stremy T. (ed.). Restorative Justice and Alternative Punishments in Theoretical Perspective [Slovak - Restorativna justicia a alternativne tresty v teo-retickych suvislostiach]. Conference Proceedings. Prague: Leges, 2014. Pp. 243-261.
18 Article 1(1) of the Framework Decision 2008/947/JHA on mutual recognition of probation measures and alternative sanctions. Moreover, recital 8 of the Preamble to the Framework Decision -"[t]he aim of mutual recognition and supervision of suspended sentences, conditional sentences, alternative sanctions and decisions on conditional release is to enhance the prospects of the sentenced person's being reintegrated into society, by enabling that person to preserve family, linguistic, cultural and other ties, but also to improve monitoring of compliance with probation measures and alternative sanctions, with a view to preventing recidivism, thus paying due regard to the protection of victims and the general public".
19 Recital 11 of the Preamble to the Framework Decision 2008/947/JHA on mutual recognition of probation measures and alternative sanctions.
monitoring.20 As is stated in this recommendation, its objective is to define a set of basic principles related to ethical issues and professional standards enabling national authorities to provide just, proportionate and effective use of different forms of electronic monitoring in the framework of the criminal justice process in full respect of the rights of the persons concerned. It is also intended to bring to the attention of national authorities that particular care needs to be taken when using electronic monitoring not to undermine or replace the building of constructive professional relationships with suspects and offenders by competent staff dealing with them in the community. The Recommendation introduced these basic principles21 and conditions of execution22 of electronic monitoring.23 Moreover, in 2010 the Council of Europe introduced the Recommendation CM/Rec(2010)1 on Probation Rules24.25
TYPES OF THE CONTROL OF THE ENFORCEMENT OF DECISIONS AND THEIR USE
The Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments regulates seven applicable technical instruments, their applicability and enforcement, namely:26
20 Council of Europe: Recommendation CM/Rec(2014)4 of the Committee of Ministers to member States on electronic monitoring. Adopted by the Committee of Ministers on February 19, 2014, at the 1192nd meeting of the Ministers' Deputies. It should be noted that the Council of Europe has been a leading player in devising human rights-derived regulations for best penal practice, in respect of both prisons and community sanctions. See, for example: Nel-lis M. Understanding the electronic monitoring of offenders in Europe: Expansion, regulation and prospects. Crime, Law and Social Change. 2014. Vol. 62. Pp. 489-510.
21 Council of Europe: Recommendation CM/Rec(2014)4 of the Committee of Ministers to member States on electronic monitoring, 2014. P. 4, recommendations No. 1-14.
22 Council of Europe: Recommendation CM/Rec(2014)4 of the Committee of Ministers to member States on electronic monitoring, 2014. Pp. 4-5, recommendations No. 15-25.
23 Details see, for example: Klatik J., Klimek L. Implementation of electronic monitoring of sentenced persons in the Slovak Republic. Sociopolitical Sciences. 2020. Vol. 10. No. 5. Pp. 59-75.
24 Council of Europe: Recommendation CM/Rec(2010)1 of the Committee of Ministers to member states on the Council of Europe Probation Rules. Adopted by the Committee of Ministers on January 20, 2010 at the 1075th meeting of the Ministers' Deputies. See also: Nellis M., Lehner D. New Council of Europe recommendations on electronic monitoring and the role of the Confederation on European Probation (CEP) [Electronic resource]. URL: https://www.penalreform.org/blog/ council-europe-recommendations-electronic-monitoring-role-con-federation-european/ (date of access: 01.05.2011); Council of Europe: Discussion paper on follow-up to be given to the conclusions adopted at the 16th conference of directors of prison administration. Document prepared by the Directorate General I - Human Rights and Rule of Law. 2011. PC-CP (2011) 21. P. 2.
25 Details see, for example: Klatik J., Klimek L. Implementation of electronic monitoring of sentenced persons in the Slovak Republic. Sociopolitical Sciences. 2020. Vol. 10. No. 5. Pp. 59-75.
26 Articles 4-10 of the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments. See, for example: Elias E. Electronic monitoring of persons and its types in practice [Slovak - Elektronicky monitoring osôb a jeho typy v aplikacnej praxi]. In: Borsekova K., Valentovic Z. (eds.) Legal and Economic Perspectives of Electronic Monitoring of Accused and Sentenced Persons [Slovak - Pravne a ekonomické suvislosti elektronického mon-itoringu obvinenych a odsudenych osôb]. Conference Proceedings. Banska Bystrica: Belianum, 2019. Pp. 79-92.
• Personal identification device (Slovak: osobne identifikacne zariadenie). This device allows unambiguous identification of the supervised person. This person shall tolerate such device on his/her body during the entire duration of his/her supervision;
• Device to check presence at the place of enforcement of the decision (i.e. presence control device; Slovak: zariadenie na kontrolu pritomnosti). This device allows to check the presence of the supervised person at a specified time at a designated location. The person shall tolerate such supervision during the entire duration of the inspection;
• Person's positioning device (Slovak: zariadenie na urcenie polohy kontrolovanej osoby). This device allows to check the movement and residence of the supervised person, i.e. the device checks current geographic location of the supervised person. The person shall tolerate such supervision of his/her location during the entire duration of the inspection;
• Proximity warning device (Slovak: zariadenie varovania blizkosti). This device makes it possible to detect proximity of the supervised person to the protected person and subsequently to alert the protected person, of course, immediately. The person shall tolerate such supervision during the entire duration of the inspection. Moreover, in this case as well the protected person shall use device. Otherwise the system would not be efficient;
• Alcohol control device (Slovak: zariadenie kontroly pozitia alkoholu). This device allows to check the prohibition of drinking alcohol by the supervised person. The control is carried out by the breath alcohol level with the biometric identification of the person;
• Voice verification device for the presence of the inspected person (Slovak: zariadenie hlasovehoovereniapritomnosti kontrolovanej osoby). This device allows the telephonic verification of the presence of the supervised person at a designated location and at a specified time;
• Device of probationary and mediatory officer (Slovak: zariadenie probacneho a mediacneho uradnlka). This device is used by officer(s), not by supervised person. (S)he has the right to supervise the supervised person at a specific location without the knowledge of the person being inspected.
The use of specific technical instruments is determined by the probation and mediation officer [(s)he works at court, i.e. (s)he is an employee of the court] on the basis of a decision of a judge (or prosecutor), so as to ensure the proper execution of the control by technical instruments. In the following text are analysed types of electronic monitoring of persons in criminal proceedings.27
27 See: Project Documents [Slovak - Projektove dokumenty] [Electronic resource]. URL: https://www.justice.gov.sk/Stranky/Nase-sluzby/ Nase-projekty/Elektronicke%20sluzby%20monitoringu/Projek-tove-dokumenty.aspx; See also: Brozura [Electronic resource]. URL: https://www.justice.gov.sk/Dokumenty/ESM0/ESM0%20-%20 brozura.pdf; Control of the Presence of the Monitored Person at Specified Time at Specified Location [Slovak - Kontrola pritomnosti kontrolovanej osoby v urceny cas na urcenom mieste] [Electronic resource]. URL: https://www.justice.gov.sk/Dokumenty/ ESM0/ESM0_kontrola_pritomnosti_K0jv_urceny_cas_na_urcenom_ mieste_plagat.pdf; Control of the Movement and Stay of the Monitored Person Based on Their Geographical Location [Slovak - Kontrola pohybu a pobytu kontrolovanej osoby na zaklade urcenia jej aktualnej geografickej polohy] [Electronic resource]. URL: https:// www.justice.gov.sk/Dokumenty/ESM0/ESM0_kontrola_pohybu_
Control of the presence
of the monitored person at specified time
at specified location
The control of the presence of the monitored person at specified time at specified location (Slovak: kontrola pritomnosti kontrolovanej osoby v urceny cas na urcenom mieste) is the most used type of electronic monitoring of persons. It ensures the monitoring of the house arrest. The technical instruments monitor the movement of the concerned person. The personal identification device (so-called bracelet) is bracelet shaped. It shall be fastened on the body of the person, for example, above the ankle.
The device communicates with the presence the control device via radio frequency signal. It is a receiver and sender of the data to the central monitoring system located in the 0peration Centre in Bratislava. The seat of the 0peration Centre is the Ministry of Justice of the Slovak Republic, which communicates through the judicial network with the "controllers" of individual regimes of the electronic monitoring of persons, i.e. with the probation and mediation officer(s) of individual district courts.
The presence control device resembles a classic landline phone. It is placed in the dwelling of the monitored person during the entire monitoring. The device has a handset, which is used for telephone connection of the person to the 0peration Centre. This type of control requires:
• the presence control device;
• the personal identification device (so-called bracelet);
• so-called black activation key.
After successful calibration, the probation and mediation officer shall ask the 0peration Centre, by phone, to activate the device. It shall send an activation SMS message to the officer. After approximately three minutes the device emits a tone, what means that the device has been activated and the control mode has been successfully sent to the device in person's dwelling. As the next step, the probation and mediation officer shall put the personal identification device (so-called bracelet) on the body of the person and shall test its functioning. In the end, the presence control device shall be placed in the dwelling of the person - the best in the middle of the dwelling.
Control of the movement and stay of the monitored person based on their geographical location
The control of the movement and stay of the monitored person based on their geographical location (Slovak: kontrola pohybu a pobytu kontrolovanej osoby na zaklade
a_pobytu_KO_plagat.pdf; Detection of the Distance between the Monitored Person and the Protected Person [Slovak - Detekcia priblizenia sa kontrolovanej osoby k chranenej osobe] [Electronic resource]. URL: https://www.justice.gov.sk/Dokumenty/ESMO/ ESMO_detekcia_priblizenia_sa_KO_k_CHO_plagat.pdf; Control of the Ban of the Consumption of Alcoholic Beverages by the Monitored Person [Slovak - Kontrola dodrziavania zakazu pozivania alkoholickych napojov] [Electronic resource]. URL: https://www. justice.gov.sk/Dokumenty/ESMO/ESMO_kontrola_dodrziavania_ zakazu_pozivania_alkoholickych_napojov_KO_plagat.pdf; Telephonic Verification of the Presence of the Monitored Person at Specified Time at Specified Location [Slovak - Telefonicke overenie pritom-nosti kontrolovanej osoby na urcenom mieste v urcenom case] [Electronic resource]. URL: https://www.justice.gov.sk/Dokumenty/ ESMO/ESMO_telefonicke_overenie_pritomnosti_KO_na_urcenom_ mieste_v_urcenom_case_plagat.pdf
urcenia jej aktualnej geografickej polohy) ensures the monitoring of the ban on staying in specified places, for example, sport events (usually at football stadiums), cultural events or places where the monitored person had committed the criminal offence. The device sends to the central monitoring system data on any movement or stay of the person. The control is carried out by the personal identification device (so-called bracelet) and by the person's positioning device.
This type of control allows to control the monitored person by determination of their geographical location. The concerned person shall take person's positioning device where their moves, for example, in the pocket or in the backpack.
Detection of the distance between the monitored person and the protected person
The detection of the distance between the monitored person and the protected person (Slovak: detekcia priblizenia sa kontrolovanej osoby k chranenej osobe) monitors the prohibition of the monitored person to approach the protected person or their dwelling; the consent of the protected person is needed, otherwise it is not possible to use this type of control. The movement of the monitored person is limited by the specified distance to protected person and its distance is determined within technical parameters, for example, 5 metres or 100 metres. This type of the control can be used simultaneously to the control of movement and residence.
The monitored person is informed by technical device - person's positioning device, that their is close to the protected person and that their should immediately leave restricted zone. During entire control, the monitored person is notified of the violation of the prohibition and such notification ends when the monitored person leaves the restricted zone. On the other hand, also the protected person is informed on monitored person's entry to restricted zone. If the monitored person enters approaches to the protected person, the device warns their by a loud signal or directly by the Operation Centre.
Control of the ban of the consumption of alcoholic beverages by the monitored person
The control of the ban of the consumption of alcoholic beverages by the monitored person (Slovak: kontrola dodrziavania zakazu pozivania alkoholickych napojov) provides the monitoring of the ban of the consumption of alcoholic beverages, which is usually imposed at the same time as the house arrest. The control of this prohibition is carried out the alcohol control device.
The alcohol control device makes it possible to monitor the level of alcohol in the breath of the monitored person. The functionality of the device requires the initial scan of the biometric dimensions of the face of the monitored person, which are automatically entered into the central monitoring system. The system stores gathered data and information and enables the control of the protected person, which is precisely identified. Indeed, it should not be possible to ask the other person to carry out the test (for example, husband, wife, child, neighbour, or close friend).
The device is equipped with a removable plastic tube, which serves the monitored person to perform
the test. Using the buttons on the right side of the device, the concerned person starts the test with the Start button at the beginning of the control. In case of incorrect test it is possible to reset the previous operation.
Telephonic verification of the presence of the monitored person at specified time at specified location
The telephonic verification of the presence of the monitored person at specified time at specified location (Slovak: telefonicke overenie pritomnosti kontrolovanej osoby na urcenom mieste v urcenom case) provides the control of the monitored person directly over the landline phone (never over the cell phone). This type of control is used, for example, when the monitored person shall fulfil the ban to be present at mass events, sport events or cultural events. It is possible to verify, first, the voice of concerned person and, second, also their localisation. i.e. the place where the call is being made. Control is based on the digital recognition of the voice of the person by the Operation Centre.
Taking into account the practice of the probation and mediation officers, is should be noted that this type of the control is the least used type of the control.
Detection of the presence of the monitored person at a specified place without their knowledge
Detection of the presence of the monitored person at a specified place without their knowledge (Slovak: kontrola zistenia pritomnosti kontrolovanej osoby na urcitom mieste bez vedomosti kontrolovanej osoby) makes it possible to control the monitored person without their knowledge about the control. The presence of the monitored person at a specified place without their knowledge is controlled by the probation and mediation officer, who shall use a mobile device (a device similar to a cell phone). It is the same device as the device used by the protected person in abovementioned type of control. The difference is simple - it has set different technical parameters.
REQUIREMENTS FOR THE CONTROL BY TECHNICAL INSTRUMENTS
As far as requirements for the control by technical instruments are concerned, first, any device must be available. It means that the Ministry of Justice of the Slovak Republic does not own unlimited number of devices. Proximity warning device can be used only with approval of protected person. Use of the alcohol control device requires written consent of the adult person living with the supervised person in a common household. If the protected person is child as minor, written consent is not required; the control can only be carried out if it is in the best interests of a minor. Judge or prosecutor shall take into account the opinion of the child (if possible).
The control by technical instruments is carried out by the probationary and mediatory officer of the court.28 Indeed, the control is carried out by courts. (S)he shall install and deinstall technical instrument; activate and
28 Articles 17 et seq. of the Act No. 78/2015 Coll. on Control of the En-
forcement of Certain Decisions by Technical Instruments.
deactivate the mode of use of the technical instruments; record, report and resolve possible incidents; and verify the availability and functionality of the technical instruments and their maintenance.
The supervised person shall, in particular:29
• comply with the instructions for the use of technical instrument(s);
• protect the technical instrument(s) taken from damage, loss, theft or destruction;
• report to the probationary and mediatory officer the damage, loss, estrangement or destruction of the technical instrument(s);
• refrain from intervening in technical instrument(s);
• to report to the probationary and mediatory officer his/her traveling abroad (at least five working days in advance);
• allow the installation, deinstalling and maintenance of technical instrument(s).
The control by technical instruments is not permanent. The Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments regulates situations when the control shall be terminated. The control shall be terminated if in the decision is defined period of its enforcement, or if the judge or prosecutor orders the termination of the supervision of supervised person (before the end of the period as defined in the decision), or if the concerned person has been sentenced by the custodial sentence. The judge or prosecutor may, at the request of the probationary and mediatory officer or at the request of the inspected person, decide to terminate the supervision by the technical instruments if the supervised person during the control of the enforcement of the decision has shown that the control by technical means is not necessary (except enforcement of house arrest).
At the beginning of the system, there was almost no application of new legislation (7 cases in 2016). The reason for this situation caused the relatively rigorous regulation of criminal policy [2: 7-35] as regards high crime rates compared to some other Member States of the European Union. Therefore the Ministry of Justice of the Slovak Republic set up so called Working Committee for Control by Technical Instruments. Its objective was, among others, to discuss and prepare appropriate measures for more frequent application of the control by technical means in criminal proceedings.
Any technical instrument (device) shall be used only in accordance with the law and on the basis of a decision. All information shall be recorded by the Central Monitoring System. This system is a part of the Central Information System of the Slovak judiciary, which is operated by the Ministry of Justice of the Slovak Republic. Moreover, the Ministry of Justice of the Slovak Republic is as well administrator of technical instruments.
29 Article 28(1) of the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments. See, for example: Elias E. Electronic monitoring of persons and its types in practice [Slovak - Elektronicky monitoring osob a jeho typy v aplikacnej praxi]. In: Borsekova K., Valentovic Z. (eds.) Legal and Economic Perspectives of Electronic Monitoring of Accused and Sentenced Persons [Slovak - Pravne a ekonomicke suvislosti elektronickeho monitoringu obvinenych a odsudenych osob]. Conference Proceedings. Banska Bystrica: Belianum, 2019. Pp. 79-92.
Besides enforcement of electronic monitoring of sentenced person there is also verification of its functioning. The 0peration Centre verifies operational incidents, mainly by contacting the concerned person or the protected person for the purpose of providing an explanation as well as by checking the material and technical conditions, or by verification of the functionality of the technical devices. The termination of monitoring is possible, in addition to its termination after the expiration of the period for which it was ordered. Monitoring can also be interrupted for the necessary time, for example, during planned hospital stay of concerned person, etc. After the interruption or end of monitoring, the probation and mediation officer shall ensure the removal of the device from the concerned person and the deactivation of the system [3: 91].
APPLICATION OF THE SYSTEM IN CIVIL PROCEEDINGS (A BRIEF OVERVIEW)
Civil law and its new applicable procedural acts30 accept the application of the electronic monitoring of persons in civil proceedings. The main objective of its application in civil proceedings is to strengthen the protection of victims of domestic violence in the event of an interim measure in civil proceedings, i.e. temporarily prohibiting the monitored person entering the house or the flat where, a person against whom the monitored person had committed violence, resides.
In civil proceedings the court may decide to impose the control by technical instruments both at the request of the party to the proceedings as well as without their proposal. If the court decides on the control by technical instruments on the basis of the proposal of the party to the proceedings, it is not necessarily needed to obtain their consent when assessing the conditions of its execution.
At the beginning of the system, the control by technical instruments in civil proceedings could be ordered only if the interim measure, the execution of which is to be controlled by technical instruments, was ordered after January 1, 2016.
INTERFERENCE
OF THE CONTROL WITH THE RIGHT TO PRIVACY
National perspective
0n the one hand, the right to privacy shall be guaranteed. 0n the other hand, as regards application of the system of electronic monitoring, in Slovak criminal proceedings it is allowed to interfere this right.
30 Namely the Act No. 160/2015 Coll. - Civil Dispute Code as amended by later legislation. Original Slovak name of this law: zákon c. 160/2015 Z. z. - Civilny sporovy poriadok v znení neskorsích predpisov; the Act No. 161/2015 Coll. - Civil Non-dispute Code as amended by later legislation. Original Slovak name of this law: zákon c. 161/2015 Z. z. - Civilny mimosporovy poriadok v znení neskorsích predpisov; the Act No. 162/2015 Coll. - Administrative Procedure Code as amended by later legislation. Original Slovak name of this law: zákon c. 162/2015 Z. z. - Správny súdny poriadok v znení neskorsích predpisov. See, for example: Vokálová D., Mitterpachová J. et al. New Approach to Civil Proceedings: Comparison of the Former and New Legal Regulation of Civil Proceedings with Interpretation [Slovak - Obcianske súdne konanie po novom: Porovnanie doterajsej a novej právnej úpravy obcianskeho súdneho konania s vykladom]. Bratislava: Wolters Kluwer, 2016. 260 p.
In the national law (legal order) of the Slovak Republic can be observed provisions regulating the right to privacy, namely:31
• the Constitution of the Slovak Republic32 stipulates that "[t]he right of every individual to integrity and privacy shall be guaranteed. This right may be restricted only in cases specifically provided by a law"33 (emphasis added). Moreover, it stipulates that "[e]veryone shall have the right to be free from unjustified interference in his or her private and family life"34 (emphasis added); "[e] veryone shall have the right to be protected against unjustified collection, disclosure and other misuse of his or her personal data"35;
• the Charter of Fundamental Rights and Freedoms36 stipulates that "[t]he inviolability of the person and his or her privacy is guaranteed. It may be restricted only in cases provided by law"37 (emphasis added).
The Constitutional Court of the Slovak Republic has many times discussed the importance of the right to privacy. For example, in case Ref. No. II. US 94/9538 it argued that the purpose of the constitutional right to privacy is not only to provide protection for the rights granted under the Civil Code, but at the same time its purpose is to prevent State and territorial self-government authorities to interfere the behaviour of an individual beyond the necessary level. Further, in case Ref. No. II. US 19/9739 the Constitutional Court argued that in a number of provisions the Constitution of the Slovak Republic completes the unified legal regulation of the right to private life, the essence of which is the ability of an individual in a particular sphere of social relations to live according to his or her ideas without unnecessary restrictions, orders and prohibitions imposed by public authorities. Furthermore, in case Ref. No. I. US 117/0740 the Constitutional Court the legality, legitimacy and proportionality shall be examined when infringing the right to privacy of a natural person. The existence of a legal basis for a decision on interference with the right to privacy does not relieve the general court of its obligation to respect the rule
31 See also, for example: Klâtik J., Deset M., Klimek L., Hrdlickovâ L. Information-technical Means and Means of Operative-investigative Actions. Prague: Leges, 2019. Pp. 29-31.
32 Act No. 460/1992 Coll. - Constitution of the Slovak Republic as amended by later legislation. Original Slovak name of this law: zakon c. 460/1992 Zb. - Üstava Slovenskej republiky v zneni nesko-rsich predpisov. See, for example: Drgonec J. Constitution of the Slovak Republic: Commentary [Slovak - Üstava Slovenskej republiky: Komentar]. Second edition. Bratislava: C.H. Beck, 2019. 1792 p. See also: Baranik K. Constitution in the starry sky: The relationship of the constitution of the Slovak Republic to international law [Slovak - Üstava na hviezdnom nebi: Vzfah Üstavy Slovenskej republiky k medzinarodnému pravu]. Prague: Leges, 2020. 296 p.
33 Article 16(1) of the Constitution of the Slovak Republic.
34 Article 19(2) of the Constitution of the Slovak Republic.
35 Article 19(3) of the Constitution of the Slovak Republic.
36 Act No. 23/1991 Coll. - Charter of Fundamental Rights and Freedoms. Original Slovak name of this law: üstavny zakon c. 23/1991 Zb., ktorym sa uvadza Listina zakladnych prav a slobôd ako üstavny zakon Federalneho zhromazdenia Ceskej a Slovenskej federativnej Republiky.
37 Article 7(1) of the Charter of Fundamental Rights and Freedoms.
38 Finding of the Constitutional Court of the Slovak Republic of December 13, 1995, Ref. No. II. ÜS 94/95.
39 Finding of the Constitutional Court of the Slovak Republic of May 13, 1997, Ref. No. II. ÜS 19/97.
40 Finding of the Constitutional Court of the Slovak Republic of Febru-
ary 4, 2009, Ref. No. I. ÜS 117/07.
of higher legal force in its decision-making. Infringement of the right to privacy is permissible only if it is necessary in a democratic society in order to achieve a legitimate objective. The necessity shall be examined by the general court in the light of the specific circumstances of the case, with an emphasis on whether they do not allow the objective (crime prevention) to be achieved other than by interfering with the right to respect for private life and correspondence.
United nations perspective
The United Nations, an intergovernmental organisation responsible for maintaining international peace and security, adopted many international conventions. As regards the right to privacy, two leading documents govern its provision - the Universal Declaration of Human Rights41 of 1948 and the International Covenant on Civil and Political Rights42 of 1966.43
The Universal Declaration of Human Rights, which is a milestone document in the history of human rights, reads that "[n]o one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks"44 (emphasis added). Cited provision of the Universal Declaration covering respect for private and family life marked the first time an international instrument laid down an individual's right to protection of their private sphere against intrusion from others, especially from the State. Though a non-binding declaration, the Universal Declaration of Human Rights has considerable status as the foundational instrument of international human rights law and has influenced the development of other human rights instruments in Europe.
The International Covenant on Civil and Political Rights reads that "[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation"45 (emphasis added); moreover, "[e]veryone has the right to the protection of the law against such interference or attacks"46.
Council of Europe perspective
The right to privacy is accepted also by the Council of Europe. It is stipulated by the Convention for the Protection of Human Rights and Fundamental Freedoms47 of 1950, which in Europe is the most important international convention protecting human rights and political freedoms.48
41 Universal Declaration of Human Rights. United Nations, 1948.
42 International Covenant on Civil and Political Rights. United Nations, 1966.
43 See also, for example: Klâtik J., Deset M., Klimek L., Hrdlickovâ L. Information-technical means and means of operative-investigative actions. Prague: Leges, 2019. Pp. 16-17.
44 Article 12 of the Universal Declaration of Human Rights.
45 Article 17(1) of the International Covenant on Civil and Political Rights.
46 Article 17(2) of the International Covenant on Civil and Political Rights.
47 Convention for the Protection of Human Rights and Fundamental Freedoms. Council of Europe, European Treaty Series No. 5 [1950]. Rome, November 4, 1950.
48 See also, for example: Klâtik J., Deset M., Klimek L., Hrdlickovâ L. Information-technical means and means of operative-investigative actions. Prague: Leges, 2019. Pp. 17-24.
The Convention for the Protection of Human Rights and Fundamental Freedoms reads that "[e]veryone has the right to respect for his private and family life, his home and his correspondence"49 (emphasis added). It adds that "[t]here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others"50 (emphasis added). Contracting States, i.e. Member States of the Council of Europe which signed the Convention, have an international obligation to comply with this Convention. All Member States, including the Slovak republic, have now incorporated or given effect to the Convention in their national law, which requires them to act in accordance with its provisions. States shall respect the rights stipulated in the Convention, including the rights to privacy, when exercising any activity or power. This includes also activities undertaken for national security.
The European Court of Human Rights in its case-law evolved the understanding of the right to privacy. In case of Niemietz v. Germany51 it held that in construing the term private life it would be too restrictive to limit the notion to an inner circle in which the individual may live his or her own personal life as (s)he chooses and to exclude there from entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. Furthermore, there appears to be no reason of principle why this understanding of the notion of private life should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that it is not always possible to distinguish clearly which of an individual's activities form part of his or her professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his or her work in that context may form part and parcel of his or her life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.
According to the Court, to deny the protection of the right to privacy on the ground that the measure complained of related only to professional activities could moreover lead to an inequality of treatment, in that such protection would remain available to a person whose professional and non-professional activities were so intermingled that there was no means of distinguishing between them.
As regards the word home, appearing in the English version of the Convention, the Court observes that in certain States, notably Germany, it has been accepted as extending to business premises. Such an interpretation
49 Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.
50 Article 8(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms.
51 Judgment of the European Court of Human Rights of December 16, 1992 - Niemietz v. Germany - application No. 13710/88. §§ 29-31.
is, moreover, fully consonant with the French text, since the word domicile has a broader connotation than the word home and may extend, for example, to a professional person's office. In this context also, it may not always be possible to draw precise distinctions, since activities which are related to a profession or business may well be conducted from a person's private residence and activities which are not so related may well be carried on in an office or commercial premises. A narrow interpretation of the words home and domicile could therefore give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of private life.
More generally, to interpret the words private life and home as including certain professional or business activities or premises would be consonant with the essential object of the Convention, namely to protect the individual against arbitrary interference by the public authorities. Such an interpretation would not unduly hamper the Contracting States, for they would retain their entitlement to interfere to the extent permitted by the Convention. That entitlement might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case.
The question which begs consideration is what the sphere of private life is. According to the Guide on the Convention elaborated by the European Court of Human Rights52 private life is a broad concept incapable of exhaustive definition and may embrace multiple aspects of the person's physical and social identity. The notion of private life is not limited to an inner circle in which the individual may live his or her own personal life as he chooses and exclude the outside world. The Convention protects the right to personal development, whether in terms of personality or of personal autonomy. It encompasses the right for each individual to approach others in order to establish and develop relationships with them and with the outside world, that is, the right to a private social life. Therefore, it may, under certain circumstances, include professional activities and commercial activities. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life or not.
Any criminal proceedings entail certain consequences for the private life of an individual who has committed a crime. These are compatible with the Convention provided that they do not exceed the normal and inevitable consequences of such a situation.53 The Convention cannot be relied on in order to complain about a loss of reputation which is the foreseeable consequence of one's own actions, such as, for example, the commission of a criminal offence.54 This principle is valid not only for criminal offences but also for other misconduct entailing a measure of legal responsibility with foreseeable negative effects on private life.55
52 See: Guide on Article 8 of the European Convention on Human Rights: Right to respect for private and family life, home and correspondence. Updated on August 31, 2019. Strasbourg: Council of Europe - European Court of Human Rights, 2019. P. 20.
53 Judgment of the European Court of Human Rights of June 27, 2017 -Jankauskas v. Lithuania - application No. 50446/09. § 76.
54 Judgment of the European Court of Human Rights of July 27, 2004 -Sidabras and Dziautas v. Lithuania - applications Nos. 55480/00 and 59330/00. § 49.
55 Judgment of the European Court of Human Rights of September 25, 2018 - Denisov v. Ukraine - application No. 76639/11. § 98.
As regards the scope of the Convention, the European Court of Human Rights has defined it broadly,56 even when a specific right is not set out in relevant Article. However, its scope is not limitless.
In the case of access to a private beach by a person with disabilities, the Court held that the right asserted concerned interpersonal relations of such broad and indeterminate scope that there could be no conceivable direct link between the measures the State was being urged to take in order to make good the omissions of the private bathing establishments and the applicant's private life.
Additionally, the Court found that the Convention was not engaged in a case regarding a conviction for professional misconduct, because the offence in question had no obvious bearing on the right to respect for private life. On the contrary it concerned professional acts and omissions by public officials in the exercise of their duties. Neither had the applicant pointed to any concrete repercussions on his or her private life which had been directly and causally linked to his or her conviction for that specific offence, as argued in case of Gillberg v. Sweden.57 However, in the case of a police investigator who had been found guilty of a serious breach of his or her professional duties for having solicited and accepted bribes in return for discontinuing criminal proceedings and who had wished to practise as a trainee advocate after serving his or her sentence, the Court in case of Jankauskas v. Lithuania found that restrictions on registration as a member of certain professions which could to a certain degree affect that person's ability to develop relationships with the outside world fell within the sphere of his or her or her private life.58
In case of Nicolae Virgiliu Tanase v. Romania the applicant was seriously injured as a result of a traffic accident. However, the Court found that such personal injury did not raise an issue relating to his or her private life since his or her injuries resulted from his or her having voluntarily engaged in an activity that took place in public, and the risk of serious harm was minimised by traffic regulations aimed at ensuring road safety for all road users. Furthermore, the accident did not occur as the result of an act of violence intended to cause harm to the applicant's physical and psychological integrity, nor could it be assimilated to any of the other types of situations where the Court has previously found the State's positive obligation to protect physical and psychological integrity engaged.59
Another question which begs consideration is if should the case be assessed from the perspective of a positive or a negative obligation?60
56 See: Guide on Article 8 of the European Convention on Human Rights: Right to respect for private and family life, home and correspondence. Updated on August 31, 2019. Strasbourg: Council of Europe - European Court of Human Rights, 2019. Pp. 7-8.
57 Judgment of the European Court of Human Rights of April 3, 2012-Gillberg v. Sweden - application No. 41723/06. § 70.
58 Judgment of the European Court of Human Rights of June 27, 2017 -Jankauskas v. Lithuania - application No. 50446/09. § 57, 58.
59 Judgment of the European Court of Human Rights of June 25, 2019 -Nicolae Virgiliu Tänase v. Romania - application No. 41720/13. § 125-132.
60 See: Guide on Article 8 of the European Convention on Human
Rights: Right to respect for private and family life, home and corre-
spondence. Updated on August 31, 2019. Strasbourg: Council of Eu-
rope - European Court of Human Rights, 2019. Pp. 8-10.
• In the case of a positive obligation, the European Court of Human Rights considers whether the importance of the interest at stake requires the imposition of the positive obligation sought by the applicant. Certain factors have been considered relevant for the assessment of the content of positive obligations on States. Some of them relate to the applicant. They concern the importance of the interests at stake and whether fundamental values or essential aspects of private life are in issue or the impact on an applicant of a discordance between the social reality and the law, the coherence of the administration and legal practices within the domestic system being regarded as an important factor. Other factors relate to the impact of the alleged positive obligation at stake on the State concerned. The question is whether the alleged obligation is narrow and precise or broad and indeterminate.
• As in the case of negative obligation, in implementing their positive obligations, the States enjoy a certain margin of appreciation. Where a particularly important facet of an individual's existence or identity is at stake, the margin allowed to the State will be restricted. Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider. There will also often be a wider margin if the State is required to strike a balance between competing private and public interests or Convention rights.
The European Court of Human Rights in its case-law requires that any interference by a public authority with an individual's right to respect for private life and correspondence must be in accordance with the law. According to case of Silver and Others v. the United Kingdom, the national law must be clear, foreseeable, and adequately ac-cessible.61 It must be sufficiently foreseeable to enable individuals to act in accordance with the law - as stated in case of Lebois v. Bulgaria6"2 - and it must demarcate clearly the scope of discretion for public authorities. As stated in case of Shimovolos v. Russia,63 the law must be sufficiently clear in its terms to give citizens an adequate indication of the conditions and circumstances in which the authorities are empowered to resort to any measures of secret surveillance and collection of data.
The clarity requirement applies to the scope of discretion exercised by public authorities. According to case of Piechowicz v. Poland,64 domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which they are entitled under the rule of law in a democratic society. According to case of Satakunnan Markkinaporssi Oy and Satamedia Oy
61 Judgment of the European Court of Human Rights of March 25, 1983 -Silver and Others v. the United Kingdom - applications No. 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75 and 7136/75. § 87.
62 Judgment of the European Court of Human Rights of October 19, 2017 - Lebois v. Bulgaria - application No. 67482/14. § 66-67.
63 Judgment of the European Court of Human Rights of June 21, 2011 -Shimovolos v. Russia - application No. 30194/09. § 68.
64 Judgment of the European Court of Human Rights of April 17, 2012 -Piechowicz v. Poland - application No. 20071/07. § 212.
v. Finland,65 the fact that the applicant's case is the first of its kind under the applicable legislation and that the court has sought guidance from the European Court of Human Rights on the interpretation of the relevant European law does not render the domestic courts' interpretation and application of the legislation arbitrary or unpredictable.
With regard to foreseeability, the phrase in accordance with the law thus implies - according to case of Fernández Martínez v. Spain/66 - that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which, and the conditions on which, the authorities are entitled to resort to measures affecting their rights under the Convention. Foreseeability need not be certain. Absolute certainty in this matter could not be expected. It should also be noted that - according to case of Versini-Campinchi and Crasnianski v. France67 -the applicant's profession may be a factor to consider as it provides an indication as to his or her or her ability to foresee the legal consequences of his or her actions.
Lawfulness also requires that adequate safeguards to ensure that an individual's rights are respected. A State's responsibility to protect private and family life often includes positive obligations that ensure adequate rights at the national level. The Court, for example, in case of So-derman v. Sweden68 found a violation of the right to private life due to the absence of clear statutory provisions criminalising the act of covertly filming a naked child.
European Union perspective
The European Union in 2000 proclaimed the Charter of Fundamental Rights of the European Union.69 Following the entry into force of the Treaty of Lisbon70 in 2009, the Charter has the same legal value as the Treaties, i.e. the Treaty on European Union71 and the Treaty on the Functioning of the European Union72.73 Under the Treaty on European Union the European Union recognises the rights, freedoms and principles set out in the Charter, which shall have the same legal value as the Treaties.74
65 Judgment of the European Court of Human Rights of June 27, 2017 -Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland - application No. 931/13. § 150.
66 Judgment of the European Court of Human Rights of June 12, 2014 -Fernández Martínez v. Spain - application No. 56030/07. § 117.
67 Judgment of the European Court of Human Rights of June 16, 2016 - Versini-Campinchi and Crasnianski v. France - application No. 49176/11. § 55.
68 Judgment of the European Court of Human Rights of November 12, 2013 - Söderman v. Sweden - application No. 5786/08. § 117.
69 Charter of Fundamental Rights of the European Union. Official Journal of the European Communities. C 364/1 of December 18, 2000.
70 Treaty of Lisbon amending the Treaty Establishing the European Union and the Treaty Establishing the European Community. Official Journal of the European Union. C 306/231 of December 13, 2006.
71 Treaty on European Union as amended by the Treaty of Lisbon. Official Journal of the European Union. C 83/13 of March 30, 2010.
72 Treaty on the Functioning of the European Union as amended by the Treaty of Lisbon. Official Journal of the European Union. C 83/47 of March 30, 2010.
73 See also, for example: Klátik J., Deset M., Klimek L., Hrdlicková L. Information-technical Means and Means of Operative-investigative Actions. Prague: Leges, 2019. Pp. 25-29.
74 Article 6 of the Treaty on European Union as amended by the Trea-
ty of Lisbon. In-depth analysis see, for example: Grabenwarter C.H.,
Pabel K. Article 6 [Fundamental rights - the charter and the ECHR].
In: Blanke H.-J., Mangiameli S. (eds.) The treaty on European Union (TEU): A commentary. Berlin - Heidelberg: Springer, 2013. Pp. 287-348.
Expressly affirming the binding nature of the Charter, despite its collocation outside the treaties, expresses with renewed vigour the limit of the respect of fundamental rights in the European Union legal system [4: 266]. Moreover, the European Commission stated that it should "add real value to the abundance of existing legal or political texts dealing with human rights in Europe".75 On the other hand, as pointed out by Smith, the rights enshrined in the Charter are somewhat vague but, in essence, are not new [5: 105]. In spite of the fact the Charter incorporates a wider array of rights and freedoms possibly than any other human rights treaty [6: 239], they are invariably based on a precursor documents. A wide range of rights are included from the Convention for the Protection of Human Rights and Fundamental Freedoms adopted by the Council of Europe.
The Charter of Fundamental Rights of the European Union stipulates that "[e]veryone has the right to respect for his or her private and family life, home and communications"76 (emphasis added). This right - i.e. the right to respect for private life - correspond to those guaranteed the Convention for the Protection of Human Rights and Fundamental Freedoms (see above). To take account of developments in technology the word correspondence has been replaced by communications.
The Charter explicitly raises the level of this protection to that of a fundamental right in European Union law. European Union institutions and bodies must guarantee and respect this right, as do Member States when implementing Union law.
The right to respect for private life and the right to personal data protection, although closely related, are distinct rights. The right to privacy - referred to in European Union law as the right to respect for private life - emerged, as seen, in international human rights law in the Universal Declaration of Human Rights of 1948 as one of the fundamental protected human rights. In the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 it was firmed too.
The Universal Declaration of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms were adopted before the development of computers and the internet. These developments have brought considerable advantages to individuals and society. At the same time, they present new risks to the right to respect for private life. In response to the need for specific rules governing the collection and use of personal information, a new concept of privacy emerged, known in some jurisdictions as informational privacy and in others as the right to informational self-determination. This concept led to the development of special legal regulations that provide personal data protection.77
75 Commission of the European Communities (2000): Commission Communication on the Charter of Fundamental Rights of the European Union. COM (2000) 559 final. P. 3.
76 Article 7 of the Charter of Fundamental Rights of the European Union.
77 See: Handbook on European data protection law. Luxembourg: Publications Office of the European Union, 2018. P. 16.
APPLICATION OF SYSTEM: A GOOD INVESTMENT OR A WASTING OF MONEY?
Prison occupancy
Prison occupancy is well known problem in the Slovak Republic.78 The increased number of persons serving custodial sentence burdens the Prison and Court Guard Service and its financial budget, medical staff, as well as members performing escorts of sentenced persons. The capacity for sentenced persons in sentence institutes in Slovakia was increased by 2,68% in 2018 and 2019, but the number of prisoners was increased by 19%.
In 2019 the capacity of Slovak sentence institutes reached 99,66%. The average number of prisoners is expected to continue to rise, for example, due to the development of the State's criminal policy, legislative changes affecting the living standards of persons receiving social benefits, the decision of any Member States of the European Union that Slovak citizen(s) which was sentenced shall serve their sentence in Slovakia, or a higher number of persons who still have not served their unconditional custodial sentence.
The solution to this problem (at least in part), as alternative to unconditional custodial sentence, can be proper application and functionality of the electronic monitoring of sentenced persons.
Figures
Electronic monitoring in Slovakia represents a new innovative service that enables active and real imposition of alternative punishments, which should be more effective alternative towards resocialisation of sentenced persons [7: 237-243] in comparison to their placement in institutes for sentence enforcement, namely the custodial sentence. The advantage of this measure is that its application is possible not only as part of the enforcement of the sentence already imposed, but also as an opportunity to use electronic monitoring before the court decides on guilt and punishment of concerned person. Another advantage of the electronic control of the enforcement of decision(s) by technical means is the fact that the offender, despite not being sentenced to the custodial sentence, is prevented from contacting the victim through the use of electronic devices, which provides protection and security for victims.79 It is the assistance to victims of domestic violence
78 See, for example: Ivor J., Polâk P., Zâhora J. Substantive criminal law I: General part [Slovak - Trestné pravo hmotné I: Vseobecna cast]. Bratislava: Wolters Kluwer, 2016. 556 p.; Klâtik J. et al. Substantive criminal law: General part [Slovak - Trestné pravo hmotné: Vseobecna cast]. Plzen: Vydavatelstvi a nakladatelstvi Ales Cenêk, 2018. 422 p.; Mencerovâ I., Tobiâsovâ L., Turayovâ Y. et al. Substantive criminal law: General part [Slovak - Trestné pravo hmotné: Vseobecna cast]. Second edition. Samorin: Heuréka, 2015. 501 p.; Burda E., Centés J., Kolesâr J., Zâhora J. et al. Criminal code: General part: Commentary - Part I [Slovak - Trestny zakon: Vseobecna cast: Komentar - I diel]. Praha: C.H. Beck, 2011. 1136 p.; Centés J. et al. Criminal code: Extensive commentary [Slovak - Trestny zakon: Vel'ky Komentar]. Fifth edition. Bratislava: Eurokodex, 2020. 1024 p.
79 In-depth analyses see, for example: Balâzovâ E., Hlavâcovâ M. Elec-
tronic monitoring and protection of victims of domestic violence [Slovak - Elektronicky monitoring a ochrana obeti domaceho nasi-lia]. In: Borsekovâ K., Valentovic Z. (eds.) Legal and economic perspectives of electronic monitoring of accused and sentenced persons [Slovak - Pravne a ekonomické suvislosti elektronického monitorin-
gu obvinenych a odsudenych osôb]. Conference Proceedings. Banska
that can be considered as another of the advantages that electronic monitoring undoubtedly has. However, to fulfil the intentions of the legislator it is essential that this possibility should be used in legal practice and that victims of domestic violence are also provided with adequate assistance in order to protect their lives and health.
The question which begs consideration is the financial effectively of system during its launch.
According to the statistics of the Ministry of Justice of the Slovak Republic80 available at the time of the writing of the work, regarding the launch of application of the system, in 2016 and 2017 house arrest sentences were imposed using technical instruments, but their number was less than 100 cases. Technical instruments were also used in the control of obligations and restrictions imposed in the framework of probation supervision as a substitute for detention - in the period of 2016 and 2017 also less than 100 cases. In the mentioned period, house arrest sentences were imposed, in particular, in the Zilina Region -27 cases and in the Banska Bystrica Region - 26 cases [8].
Assuming that the persons were monitored by technical instruments the State saved almost 700 000 Eur by the system of electronic monitoring (one day of costs per person in custody or in custodial sentence in 2016 equalled 41.68 Eur). The reduction of cost for execution of sentences in criminal proceedings was needed (and still is needed), because the Slovak Republic needs funds for the construction of new prison facilities, since the Slovak Republic has a large number of sentenced persons executing custodial sentence(s).
In addition to statistical indicators, the Ministry of Justice of the Slovak Republic was interested in the application of technical instruments ensuring the real execution of the house arrest. The report of the Supreme Audit Office of the Slovak Republic81 of February 2017 shows that there
Bystrica: Belianum, 2019. Pp. 20-36; Klatik J., Mencerova I., Klimek L. Electronic monitoring and protection of victims of domestic violence [Slovak - Elektronicky monitoring a ochrana obeti domaceho nasilia]. In Castle Days of Law in Banska Bystrica [Slovak - Bansko-bystricke zamocke dni prava]. Conference Proceedings. Banska Bystrica: Belianum, 2020. Pp. 52-64; Romza S. Protection of the victim in case of repeated victimisation during alternative methods of serving punishments [Slovak - Ochrana obete pred opakovanou viktimizaciou pri alternativnych sposoboch vykonu trestov P]. In: Centes J., Kurilovska L., Hangacova N. (eds.) Sanctions [Slovak -Sankcie]. Conference Proceedings. Bratislava: Wolters Kluwer, 2018. Pp. 246-257; Klatik J. Interactive warning of victims of domestic violence by an electronic monitoring service [Slovak - Interak-tivne varovanie obetiam domaceho nasilia elektronickou sluzbou monitoringu]. In: Romza S. (ed.) Injured and victims of crime: Possibilities to ttrengthen their procedural rights [Slovak - Poskodeny trestnym cinom a obete trestnych cinov: moznosti posilnovania ich procesnych opravneni]. Conference Proceedings. Kosice: Univerzita Pavla Jozefa Safarika v Kosiciach, 2018. Pp. 134-146; Fedor-ova A. Contemporary legal regulation of the victim and the injured in the legal order of the Slovak Republic [Slovak - Aktualna pravna uprava obete a poskodeneho v pravnom poriadku Slovenskej repub-liky]. In: Romza S. (ed.) Injured and victims of crime: possibilities to strengthen their procedural rights [Slovak - Poskodeny trestnym cinom a obete trestnych cinov: moznosti posilnovania ich procesnych opravneni]. Conference Proceedings. Kosice: Univerzita Pavla Jozefa Safarika v Kosiciach, 2018. Pp. 360-373.
80 Ministry of Justice of the Slovak Republic: Statistical Yearbooks [Slovak - Statisticke rocenky] [Electronic resource]. URL: http://www. justice.gov.sk/stat/statr.htm
81 Supreme Audit Office of the Slovak Republic: Zaverecna spra-va - Kontrola implementacie a vyuzivania Elektronickeho systemu monitoringu obvinenych a odsudenych osob [transl.: Final Report -
was no expected benefit from the introduction of electronic monitoring, in particular, due to delayed training of judges, prosecutors and probation and mediation officers, but also to an excessive increase of the number of persons who had to meet the conditions for their monitoring. It has been repeatedly stated that application of electronic monitoring in Slovak practice has not reached as efficiency as it was expected [8].
The project shows a high degree of inefficiency in practice and in a financial point of view it is inefficient as well. The main problems that led to its start-up and implementation have not been resolved and will probably not be resolved for a long time.
It should be noted that as regards so called ordered control of the execution ofa decision imposing a prohibition, restriction or a punishment (probation), between 2016 and 2019 the number of monitored persons was more than 400 and the number of persons protected was more than 50. As regards the control of persons serving custodial sentence in imprisonment, in 2018 and 2019 the control concerned more than 500 persons [8]. In any case, these results are better, but still not according to the original expectations. As regards the house arrest, the probation and mediation officers assumed such a development of the application of this type of punishment in a conservative criminal law environment.
Inadequate costs on project implementation and its operation
The launch of the system was co-financed by the European Union. The financial amount intended to start-up the project from the non-repayable financial contribution amounted to a maximum of 26 945 900 Eur. This corresponded to the expenditure of 2000 monitoring devices per year. Project expenditure amounted to 26 896 257 Eur. In addition to these expenditures, the project also included expenditures from the budget of the Ministry of Justice of the Slovak Republic - for hardware and software licenses amounting to 358.800 Eur. The total expenditure to start the project was thus increased to Eur 27 255 057. The financial costs were spent also for the operation of the project for at least five years, with a maximum annual value of 3 860 000 Eur. The value was reduced each year, in 2016 by 210 306 Eur and in the following years by nearly 750.000 Eur per year [9: 272-285].
The Supreme Audit Office of the Slovak Republic considers such amount to be inadequate to the real need, especially during the initial use of the project, when the mon-
Control of the Implementation and Use of the Electronic Monitoring System for Accused and Sentenced Persons]. Bratislava, 2017; See also: Kristofik P., Medzihorsky J. Saving public finances by streamlining electronic monitoring of sentenced offenders [Slovak - Üspo-ra verejnych financii pri zefektivneni elektronickeho monitoringu odsudenych pachatelov]. In: Borsekova K., Valentovic Z. (eds.) Legal and economic perspectives of electronic monitoring of accused and sentenced persons [Slovak - Pravne a ekonomicke suvislosti elektronickeho monitoringu obvinenych a odsudenych osob]. Conference Proceedings. Banska Bystrica: Belianum, 2019. Pp. 200-213; Solarik M. Results of the implementation of electronic monitoring, its objectives and limits [Slovak - Vysledky zavedenia elektronickeho monitoringu, jeho ciele a limity]. In: BorsekovaK., ValentovicZ. (eds.) Legal and economic perspectives of electronic monitoring of accused and sentenced persons [Slovak - Pravne a ekonomicke suvislosti elektronickeho monitoringu obvinenych a odsudenych osob]. Conference Proceedings. Banska Bystrica: Belianum, 2019. Pp. 244-259.
itoring mechanisms were used for 25 persons,82 while the system had been intended for 2000 persons a year.
In the Slovak Republic the average cost per prisoner in case of imprisonment is about 40 Eur per day, which means that cost for one year is 14 000-15 000 Eur. The average cost per prisoner in case of house arrest under electronic monitoring is about 4 Eur per day, which means that cost for one year is 1400-1500 Eur. Indeed, the cost in the case of this alternative solution of sentencing is thus 90% less. However, the electronic system for the monitoring of sentenced persons is not used often.
As seen above, electronic monitoring in Slovak criminal justice is understood as alternative in standard criminal proceedings. There is no obligation to use this system. Indeed, the control by technical instruments is an optional possibility, not a mandatory obligation.83 Slovak practice has revealed unexpected observations. The question which begs consideration is the real application of the system. In principle, judges are not familiar with alternative sanctions in Slovak criminal justice. Large amounts of cost were spent on the system start-up. In financial point of view, no one can guarantee that the system will be successful. Even the Supreme Audit Office of the Slovak Republic pointed out that this system is not fully operational and will need to be refined to proper functionality, requiring additional financial costs from the state budget.84
82 Supreme Audit Office of the Slovak Republic: Zaverecna spra-va - Kontrola implementacie a vyuzivania Elektronickeho systemu monitoringu obvinenych a odsudenych osob [transl.: Final Report -Control of the Implementation and Use of the Electronic Monitoring System for Accused and Sentenced Persons]. Bratislava, 2017; See also: Kristofik P., Medzihorsky J. Saving public finances by streamlining electronic monitoring of sentenced offenders [Slovak - Üspora verejnych financii pri zefektivneni elektronickeho monitoringu odsudenych pachatelov]. In: Borsekova K., Valentovic Z. (eds.) Legal and economic perspectives of electronic monitoring of accused and sentenced persons [Slovak - Pravne a ekonomicke suvislosti elektronickeho monitoringu obvinenych a odsudenych osob]. Conference Proceedings. Banska Bystrica: Belianum, 2019. Pp. 200-213; Solarik M. Results of the implementation of electronic monitoring, its objectives and limits [Slovak - Vysledky zavedenia elektronickeho monitoringu, jeho ciele a limity]. In: BorsekovaK., ValentovicZ. (eds.) Legal and economic perspectives of electronic monitoring of accused and sentenced persons [Slovak - Pravne a ekonomicke suvislosti el-ektronickeho monitoringu obvinenych a odsudenych osob]. Conference Proceedings. Banska Bystrica: Belianum, 2019. Pp. 244-259.
83 See also: Klimek L. Execution of electronic monitoring in slovak criminal justice. In: 10th Academic international conference on interdisciplinary legal studies. Oxford Conference series Proceedings. Livingston: FLE Learning, 2019. Pp. 22-29; Klimek L. Costs of electronic monitoring in Slovak criminal justice. In: Academic international conference on social sciences and education. Cambridge Conference Series. Cambridge: FLE Learning, 2019. Pp. 8-13; Klimek L., Klätik J. Electronic monitoring in Slovak criminal justice. In: Innovations in science and education. CBUInternational Conference Proceedings. Prague: CBU Research Institute, 2019. Pp. 459-463; Klimek L. Law on the electronic monitoring at the level of the European Union and in the Slovak Republic [Slovak - Pravna uprava elektronickeho monitoringu na urovni Europskej unie a v Slovenskej republike]. In: Castle days of law in Banska Bystrica [Slovak - Banskobystricke zamocke dni prava]. Conference Proceedings. Banska Bystrica: Belianum, 2019. Pp. 69-75.
84 Supreme Audit Office of the Slovak Republic: Zaverecna spra-
va - Kontrola implementacie a vyuzivania Elektronickeho systemu monitoringu obvinenych a odsudenych osob [transl.: Final Report -Control of the Implementation and Use of the Electronic Monitoring System for Accused and Sentenced Persons]. Bratislava, 2017. See also: Kristofik P., Medzihorsky J. Saving public finances by streamlining electronic monitoring of sentenced offenders [Slovak - Üspo-ra verejnych financii pri zefektivneni elektronickeho monitorin-gu odsudenych pachatel'ov S]. In: Borsekova K., Valentovic Z. (eds.)
The objectives of the project and expenditures have been evaluated at national context - by the Supreme Audit Office ofthe Slovak Republic. The desired benefits of saving the cost in execution of imprisonment by alternative system have not yet been achieved. The rate of imposition of alternative sanctions remained unchanged compared to the period before the project was implemented. The project was designed for 2000 monitored persons per year, but such a number does not appear in practice. For example, in 2016, the number of persons under electronic monitoring was 25, which represents 1.25% of the target number.
As noted, application of electronic monitoring in Slovak practice has not reached as efficiency as it was expected [10: 414-424]. The project shows a high degree of inefficiency in practice and in a financial point of view it is inefficient as well. The main problems that led to its start-up and implementation have not been resolved and will probably not be resolved for a long time.
At a similar time as in the Slovak Republic electronic monitoring of persons in criminal proceedings was launched also in the Czech Republic.85 The costs of its launch in 2017 were considerably lower. At the outset, the Ministry of Justice of the Czech Republic decided to invest 93 000 000 Czech crowns (app. 3 450 000 Eur) for six years. The Ministry of Justice acquired 280 facilities for the control of persons, training of employees of the mediation service, training of employees of the probation service, training of employees of the Ministry of Justice and the operation of the system worth 15 500 000 Czech crowns (app. 573 000 Eur).
It can be stated that the Czech Republic spent considerably less than the Slovak Republic (even for a period that is one year longer). In the end, the final calculation of costs surprised even the Ministry of Justice of Justice of the Czech Republic itself and it was significantly lower than it was expected. Moreover, it exceeded the most optimistic estimates of the State, since the Ministry of Justice of the Czech Republic counted on an amount exceeding 100 000 000 Czech crowns.
It should be noted that such a different approach of States of former Czechoslovakia - the Slovak Republic and the Czech Republic - is just one of examples of their different roads they have chosen.
Legal and economic perspectives of electronic monitoring of accused and sentenced persons [Slovak - Právne a ekonomické súvislosti elektronického monitoringu obvinenych a odsúdenych osób]. Conference Proceedings. Banská Bystrica: Belianum, 2019. Pp. 200-213; Solárik M. Results of the implementation of electronic monitoring, its objectives and limits [Slovak - Vysledky zavedenia elektronického monitoringu, jeho ciele a limity]. In: Borseková K., Valentovic Z. (eds.) Legal and economic perspectives of electronic monitoring of accused and sentenced persons [Slovak - Právne a ekonomické súvislosti elektronického monitoringu obvinenych a odsúdenych osób]. Conference Proceedings. Banská Bystrica: Belianum, 2019. Pp. 244-259.
85 See, for example: Scerba F. Alternative punishments and measures in new legislation [Czech - Alternativní tresty a opatrení v nové právní úpravé]. Praha: Leges, 2011, 416 p. As regards comparison of national legislation in the Slovak Republic and the Czech Republic, see: Klimek L. Comparison of legislation on electronic monitoring of persons in criminal proceedings in the Slovak Republic and in the Czech Republic [Slovak - Porovnanie právnej úpravy elek-tronického monitoringu osób v trestnom konaní v Slovenskej republike a v Ceskej republike]. In: Borseková K., Valentovic Z. (eds.) Legal and economic perspectives of electronic monitoring of accused and sentenced persons [Slovak - Právne a ekonomické súvislosti elek-tronického monitoringu obvinenych a odsúdenych osób]. Conference Proceedings. Banská Bystrica: Belianum, 2019. Pp. 193-199.
RECOMMENDATIONS FOR POLICYMAKERS AND LEGAL PRACTITIONERS
During 2016-2020 the system was assessed at the Matej Bel University in Banska Bystrica, the Slovak Republic. Under guidance of Professor Jaroslav Klatik - the main author of this work - a group of researchers at the Faculty of Law and at the Faculty of Economics co-operated on the research project "Interdisciplinary Approach to Electronic Monitoring of Accused and Sentenced Persons in Slovak Environment"86 (Slovak: Interdisciplinarny pristup k elektronickemu monitoringu obvinenych a odsudenych osob v slovenskom prostredi). The project was supported by the Slovak Research and Development Agency87 under the contract No. APVV-15-0437.88 The project was focused on the definition and the assessment of new theoretical and practical approach to electronic monitoring of persons in criminal proceedings in the Slovak Republic and to its evaluation.
The overall objective of the project was the assessment of the electronic monitoring of persons in criminal proceedings, analysis and evaluation of the system and resocialisation of monitored persons in the light of the elimination and prevention of crime, economic efficiency and effectiveness of the integration of monitored persons back into society.
The sub-objective of the project, inter alia,89 was the preparation of recommendations for policymakers and legal practitioners. The research team elaborated following recommendations:90
• implementation of electronic monitoring records register;
• establishment of a website presenting contemporary information on persons being electronically monitored;
86 Details see, for example: Klatik J., Klimek L. Implementation of electronic monitoring of sentenced persons in the Slovak Republic. Sociopolitical Sciences. 2020. Vol. 10. No. 5. Pp. 59-75.
87 The Slovak Research and Development Agency is a State institution linked to the Ministry of Education, Science, Research and Sports of the Slovak Republic. It was established in 2005 by the Act No. 172/2005 Coll. on State Support Administration of Research and Development. Details see: Agentura na podporu vyskumu a vyvoja [Electronic resource]. URL: https://www.apvv.sk
88 Details see: Databaza financovanych projektov [Slovak - Database of Funded Projects] [Electronic resource]. URL: https://www.apvv. sk/databaza-financovanych-projektov.html
89 The sub-objectives of the project were: (i) Development of a methodological procedure for implementation of the empirical research of the electronic monitoring of persons in criminal proceedings by interdisciplinary approach. (ii) Gathering, analysis and evaluation of data related to the electronic monitoring of persons in criminal proceedings by interdisciplinary empirical research. (iii) Evaluation of social reintegration of monitored persons. (iv) Evaluation of the economic efficiency of the system in comparison to the standard custodial sentence. (v) Definition of the positive impacts of implementation of the electronic monitoring of persons in the Slovak Republic in legal, economic and sociological perspective. (vi) Definition of the risks in the implementation of the electronic monitoring of persons in the Slovak Republic in legal, economic and sociological perspective. (vii) Definition of the groups of persons suitable for electronic monitoring. (viii) Preparation of recommendations for policymakers and legal practitioners in the Slovak Republic.
90 At the time of the writing of this work presented recommendations were based on the draft version of the final report of the project and on the draft version of the monograph Klatik J., Virdzek T., Valentovic Z. et al. Electronic monitoring in Slovakia: Results of a national survey and recommendations for policy makers and practitioners [Slovak - Elektronicky monitoring na Slovensku: vysledky narodneho prieskumu a odporucania pre tvorcov politik a prax]. Banska Bystrica: Belianum, 2020. Pp. 66-72 (pages in draft version of the monograph).
• improvement of the data collection system on recidivism;
• amendment of the legal regulation of Article 68(1)(a) of the Labour Code in the light of the law of the Czech Republic;
• establishment of the recording of all telephone calls between monitored person and probation and mediation officer and the Operation Centre;
• modernisation of instruments used to execute the decision involving electronic monitoring;
• decision-making on the probation and mediation officer's proposal to transform the decision involving electronic monitoring to serve the custodial sentence;
• continuous technical/service support (so-called 24/7 support);
• establishment of a direct telephone connection between the Operation Centre of the Police Force of the Slovak Republic and the Operation Centre of the system and the Possibility of Direct Redirection of the Operation Centre to the District Directorates of the Police Force Depending on the Location of the Monitored Person Where Was Their Last Known Movement; and
• application of the project of the Bratislava Regional Court entitled "One Probation and Mediation Officer for Electronic Monitoring' in other regions of the Slovak Republic.
Implementation
of electronic monitoring records register
It is necessary to record relevant data on monitored persons. Afterwards, it will be possible to assess whether there is effective resocialisation using electronic monitoring in criminal proceedings. Contemporary data of information and their processing is not at the required level. This recommendation reflects the fact that the Ministry of Justice of the Slovak Republic does not register monitored persons after they have already served their sentence imposed by the decision involving technical instrument under electronic monitoring.
The establishment of the register that would provide detailed recording of information about the person who was sanctioned by the sentence imposed by the decision involving technical instrument. At present, "available" information is insufficient. It is impossible to find out data from the current records about the person who has already served the decision involving technical instrument or was prosecuted/convicted again, or a whether a new decision involving technical instrument was imposed on the same person. It is difficult to determine whether the initially imposed decision involving technical instrument had so-called resocialising effect on concerned person.
Currently processed data on monitored persons are insufficient to determine the exact data of the resocialisation effectiveness of electronic monitoring in criminal proceedings. As regards its resocialisation function, in terms of the so-called monitoring recidivism, there is no information about the monitored persons neither at courts nor at any central authority of State administration of courts. Establishment of the register containing information on persons who are serving and who have served sentence imposed by the decision involving technical instrument, similar to the criminal record kept by the General Prosecutor's Office of the Slovak Republic, would be beneficial.
Establishment
of a website presenting contemporary information on persons being electronically monitored
The cornerstone for increasing public trust (including trust towards judges and prosecutors) in a functional electronic monitoring system is awareness and presentation of the results of this tool. If people are properly informed about real functionality of the system and about its benefits, there is an assumption that they are more interested in its application.
Anonymised information on monitored persons could be regularly updated online on the website so that the obtained data could be processed and subsequently analysed. The website should reflect partial information from the electronic monitoring register (see above).
The competent authorities of the State (in particular, courts and probation and mediation officers, the prosecutor's offices) would be eligible to work with relevant information. Public as well as State authorities should have access to information on the number of monitored persons in individual regions, cities, or municipalities; differentiation of monitored persons in terms of gender, age, employment; the approximate duration of the execution of electronic monitoring; the figures on income tax benefits of monitored persons; the number of concerned persons as a substitution for detention or as part of imposed sentence.
Moreover, the added value of the information lies in the possibility of further free usage of information by the academic community.
Improvement
of the data collection system on recidivism
Based on the data published in the annual reports on statistics elaborated by the Ministry of Justice of the Slovak Republic91 it is not possible to assess the effectiveness of punishment (fulfilment of the purpose of punishment) involving application of the control of monitored person(s) by technical instruments.
In many Member States of the European Union recidivism is perceived as an elementary and irreplaceable measure to analyse effectiveness of the sanctions imposed. Despite this fact its definition and assessment based on the data on registered crime is followed by certain deficiencies. In recent years, European States have been trying to improve the system of gathering data on recidivism to compare them with other States. As regards the Slovak Republic, there is no uniform system for monitoring and evaluating the recidivism of convicted persons. Therefore, available information on recidivism does not indicate a real understanding of this phenomenon in Slovakia. Assessments based on available statistics does not determine, for example, how many convicted recidivists were included in electronic monitoring system in criminal proceedings. There are no statistical indicators to evaluate how the electronic monitoring system improves the social inclusion of convicts.
91 For example: Ministry of Justice of the Slovak Republic: Statistical Yearbooks [Slovak - Statisticke rocenky] [Electronic resource]. URL: http://www.justice.gov.sk/stat/statr.htm
Amendment of the legal regulation of Article 68(1)(a) of the labour code in the light of the law of the Czech Republic
Under Article 68(1)(a) of the Labour Code92 if the employee has been lawfully convicted for a criminal offence, it is possible to terminate their working contract. The employer may immediately terminate the employment even if the offence does not relate to employee's work. In comparison to the Czech Republic, Under Article 55(1)(a) of Czech Labour Code93 the employer may immediately terminate the employment if the employee has been lawfully convicted for an intentional criminal offence for which it is possible to impose unconditional custodial sentence for more than one year <...>. As seen, Czech legislation is "softer", since it accepts employment of related person during criminal proceedings, as it limits the group of persons whom the employer is eligible to terminate the working contract. It is recommended to ament Slovak legislation in the light of the Czech approach.
Establishment of the recording of all telephone calls between monitored person and probation and mediation officer and the operation centre
The practice of probation and mediation officers, as regards execution of electronic monitoring in criminal proceedings, reveals rude and conflicting behaviour of monitored persons. In principle, they invoke their rights, however, on the other hand, they are not willing to accept obligations imposed by courts and by probation and mediation officers.
The system does not record the behaviour of monitored persons and their communication by telephone. The probation and mediation officers can only make an unofficial record. In case there is a proposal from the probation and mediation officers to transform the sentence of the house arrest to the custodial sentence, or if deciding on monitored person's detention based on a breach of the control regime, they deny anything violent to the probation and mediation officers. In practical perspective the knowledge of the monitored person that their communication with the probation and mediation officers (personal or by telephone) is recorded would cause a preventive-psychological effect on the monitored person and it would eliminate unaccepted rude behaviour towards probation and mediation officers.
Modernisation of instruments used
to execute the decision involving electronic monitoring
Monitoring of the person is carried out at a specified place with the assistance of a device for checking the positioning of the person. The person shall carry such
92 Act No. 311/2001 Coll. - Labour Code as amended by later legislation. Original Slovak name of this law: zakon c. 311/2001 Z. z. -Zakonnik prace v zneni neskorsich predpisov. See, for example: Svec M., Toman J. et al. Labour code. Collective bargaining Act: Commentary. Vol. 1, 2 [Slovak - Zakonnik prace. Zakon o kolektivnom vyjednavani: Komentar: I. a II. zväzok]. Bratislava: Wolters Kluwer, 2019. 2196 p.
93 Act No. 262/2006 Coll. - Labour Code as amended by later legislation. Original Czech name of this law: zakon c. 262/2006 Sb. - Zakonik prace ve zneni pozdejsich predpisu. See, for example: Hürka P., Rand-lova N., Dolezi'lek J. et al. Labour code. Commentary [Czech - Zakonik prace. Komentar]. 6th edition. Prague: Wolters Kluwer, 2020. 848 p.
a device with wherever theirs moves, especially outside the dwelling. The monitored person shall carry the device for control the movement on their body. In practice, there are hundreds of security incidents, where monitored person(s) unintentionally forget to take all devices outside the dwelling. Subsequently, the Operation Centre registers the information that the person is not detected, or their movement is unknown. Probation and mediation officers throughout the Slovak Republic consistently report insufficient coverage and intensity of GPS signals in selected areas, what cause security and technical incidents.
Decision-making on the probation
and mediation officer's proposal
to transform the decision involving electronic monitoring
to serve the custodial sentence
Legislation amendment is needed to ensure a procedure acceleration for the transform of a decision in case of violation of the conditions set for monitored person.
Slovak criminal courts of the first instance have too much to do since they are burdened by criminal complaints. There are proposals made by probation and mediation officers, based on repeated violation of the control regime set for the convicted person, to enact their eligibility to transform the decision involving electronic monitoring to serve the custodial sentence. For example, a partner of monitored person, in whose household their lived, repeatedly asked for transformation of the rest of the house arrest to the custodial sentence, because there were regular conflicts in the household. In such cases the judge shall decide on conversion, but also probation and mediation officers should be eligible to decide on transformation of the rest of the sanction.
Continuous technical/service support (So-Called 24/7 Support)
The recommendation is based on the unavailability of service technicians on non-working days and public holidays (for example, Christmas holidays). It leads to the impossibility to set up a monitoring device.
It is usual that during pre-trial proceedings a judge receives a request for imposing a person to the custody on a non-working day or public holiday. Given that the case of concerned person is an extensive file material, it is up to the court to decide on the detention of the person after the assessment of the case file and their hearing. It leads to situation that the court decides on the last day of the time limit. If it happens on a non-working day or public holiday, it leads to procedural complications. The service technician of the service support is not available. If the judge is the opinion that the ground(s) for detention are given, the detention may be replaced by the supervision of the probation and mediation officer while imposing restrictions or obligations within electronic monitoring of the concerned person. Unavailability of the technical support leads to impossibility to decide on time. It is unacceptable approach since, in general, the law enforcement authorities and courts (including their departments) are not able to proceed during proceeding.
Moreover, there are cases that the technical instrument does not work (its functioning fails), for example, during
the Christmas holidays, i.e. when the technical support does not provide support. Therefore, the monitoring of concerned person does not work. The probation and mediation officer has no proper possibility to control the person to check if there is being in the dwelling. In such cases "monitored" person is not under the control by system of electronic monitoring - sometimes in total five or six days during the holiday.
It should be noted that a company providing a support service for electronic monitoring in criminal proceeding costs over 3 000 000 Eur per year.
Establishment of a direct telephone connection between the operation centre of the police force of the Slovak Republic and the operation centre of the system and the possibility of direct redirection of the operation centre to the district directorates of the police force depending on the location of the monitored person where was their last known movement (заг 2 уровень)
It is needed to establish a direct telephone connection between the Operation Centre of the Police Force of the Slovak Republic and the Operation Centre of the system.
Due to the occurrence of a security incident of the monitored person (intentional removal of the identification device), there were communication discrepancies between the probation and mediation officer, the Operation Centre and competent police department. It would be desirable to introduce crisis procedure manuals at the Operation Centre of the system. For example, if the operation centre detects an unauthorised removal or damage of the personal identification device (so-called bracelet) by the monitored person, the Operation Centre should, first, contact the district department of the Police Force where the last movement of the person or a technical/security incident was recorded. Second, it should communicate to the probation and mediation officer.
Application of the project of the Bratislava regional court entitled "One probation and mediation officer for electronic monitoring" in other regions of the Slovak Republic
A pilot project called "One Probation and Mediation Officer for Electronic Monitoring" is taking place at the Regional Court in Bratislava. The head of the Probation and Mediation Department appointed one officer of a specific district court whose agenda consists only in ensuring the control of the execution of decisions involving electronic monitoring.
Its establishment started in May 2019. A proposal of one probation and mediation officer for electronic monitoring was presented at the meeting of probation and mediation officers which took place at the Regional Court in Bratislava. Probation and mediation officers introduced their support for the idea. The head of the Probation and Mediation Department informed the Ministry of Justice of the Slovak Republic about the intention to apply such approach in the Bratislava Region.
If such approach will be successful in the Bratislava Region, it would be a welcomed approach in all regions in Slovakia.
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Статья проверена программой Антиплагиат
Статья поступила в редакцию 10.11.2020, принята к публикации 18.12.2020 The article was received on 10.11.2020, accepted for publication 18.12.2020
ABOUT THEAUTHORS
Jaroslav Klatik, Faculty of Law of the Matej Bel University. Banska Bystrica, Slovak Republic. Scopus Author ID: 57217833550; ORCID 0000-0002-6918-1511; E-mail: [email protected]
Libor Klimek, Faculty of Law of the Matej Bel University. Banska Bystrica, Slovak Republic. Scopus Author ID: 55620115400; ORCID ID: 0000-0003-3826-475X; E-mail: [email protected]
СВЕДЕНИЯ ОБ АВТОРАХ
Клатик Ярослав, юридический факультет, Университет Матея Бела. Банска Быстрица, Республика Словакия. Scopus Author ID: 57217833550; ORCID 0000-00026918-1511; E-mail: [email protected]
Климек Либор, юридический факультет, Университет Матея Бела. Банска Быстрица, Республика Словакия. Scopus Author ID: 55620115400; ORCID ID: 0000-0003-3826-475X; E-mail: [email protected]
