Natisni vsebino

The end of fine enforcement by imprisonment

29.01.2015 16:11
Category: work and news


In accordance with the provisions of Article 19 of the Minor Offences Act (the ZP-1), a court may force an offender who fails to pay a fine partially or entirely within the specified time limit to pay said fine by imposing on him or her fine enforcement by imprisonment. The Human Rights Ombudsman believes that the introduction of fine enforcement by imprisonment into our legal order is problematic from many aspects and that the regulation itself is inadequate. The Ombudsman has been concerned about the issue of fine enforcement by imprisonment since its entry into force. We wrote on this matter in our 2010 Annual Report (p. 121).  Since all of the amendments to the ZP-1 ignored our views and the warnings of (at least some of) the experts who have objected to this measure and pointed to doubts about its constitutionality, the Ombudsman, believing that this measure encroached upon human rights or fundamental freedoms, proposed at the beginning of 2012 that the Constitutional Court should review the constitutionality of paragraph 1 of Article 19 of the ZP-1 and repeal it on the grounds of its being in contravention of the Constitution.

In the review of constitutionality, the Constitutional Court of the Republic of Slovenia ruled at its session of 11 December 2014 that paragraphs 1, 2, 3 and 4 of Article 19, paragraph 7 of Article 19, insofar as it refers to the execution of fine enforcement by imprisonment, and Article 202.b of the Minor Offences Act (Uradni list RS (Official Gazette of the Republic of Slovenia), Nos. 29/11 – official consolidated text 21/12 and 111/13) should be repealed. The court also ruled that all decision-making proceedings on fine enforcement by imprisonment that have not been completed by the time of the publication of this decision of the Constitutional Court in Uradni list RS should be stayed.  Where proceedings on fine enforcement by imprisonment have been completed, fine enforcement by imprisonment should not be executed or its execution should be stayed.

The Constitutional Court of the Republic of Slovenia did not find the challenged measure of fine enforcement by imprisonment unconstitutional. However, it established that individual conditions and the regulation of the procedure as they are prescribed for the imposition of fine enforcement by imprisonment were in contravention of the Constitution, as they failed to provide to a sufficient extent the guarantees that are provided for by said Constitution. Since the established unconstitutionality, particularly the way this measure was regulated, did not allow the court to repeal only particular provisions, the court repealed fine enforcement by imprisonment in total. In Decision U-I-12/12 of 11 December 2014, the court emphasised, among other things, that, in the event of an offender failing to perform the tasks in the general interest in their entirety, the court, in accordance with the ZP-1, should reject his or her appeal even if the offender has proved in the proceedings for deciding on the proposal for the performance of tasks in the general interest that he or she is unable to pay the fine due to his or her poor financial situation; the challenged regulation therefore misses its goal, not being an appropriate means of achieving the ends envisaged and being in contravention of the right referred to in paragraph 1 of Article 19 of the Constitution. In addition, the ZP-1 is in contravention of the requirement for proportional balance between the consequences of encroaching on personal freedom and benefits that might arise from it, as it excludes the possibility of a court taking into account the amount of the fine imposed and not paid when determining the duration of the imprisonment for the enforcement of the fine. This is why it is in contravention of the right referred to in paragraph 1 of Article 19 of the Constitution. The regulation by which the court imposes fine enforcement by imprisonment on an offender without inviting him or her to state reasons against such a decision, whereby the court decides on the basis of a formally conducted procedure, encroaches on the right to an impartial court and the right to make a statement. Since fine enforcement by imprisonment encroaches on personal freedom, it should not be the only measure used to tackle a default in payment, as this intention cannot justify the encroachment on the right to an impartial court and the right to make a statement at the initial stage of decision-making on fine enforcement by imprisonment. This is why the challenged regulation, which makes this possible, is in contravention of Article 22 and paragraph 1 of Article 23 of the Constitution.

The Constitutional Court of the Republic of Slovenia therefore upheld the view of the Ombudsman, which had constantly drawn attention to the fact that the regulation of fine enforcement by imprisonment encroaches upon human rights or fundamental freedoms. If the legislature decides to insist on this measure, it will have to regulate fine enforcement by imprisonment anew, with the new regulation taking into consideration the guarantees provided for by the Constitution.


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