Natisni vsebino

4. Implementation of criminal sanctions

4. Implementation of criminal sanctions

The new law on the implementation of criminal sanctions has not yet been passed

A common thread of the Human Rights Ombudsman’s warnings is that it a new law on the implementation of criminal sanctions needs to be passed as soon as possible. This is a law which is supposed to guarantee the convicted person the respecting of his human rights and fundamental freedoms. It is particularly important from the point of view of the individual, since while serving a sentence of the deprivation of liberty or during the implementation of a criminal sanction it protects him in relation to the state as the stronger party. The legal regulation of imprisonment, and of the implementation of criminal sanctions in general, is an indicator of the level of democracy and the rule of law. Unfortunately too much time has passed between the preparation of a draft in 1996 and the proposal of the draft law on the implementation of criminal sanctions in the National Assembly in January 1999. The right thing would be for the National Assembly to pass this law, which must contain precisely defined rules and standards for the treatment of convicted persons, as soon as possible and in this way ensure clearer ‘rules of the game’ for this area.

The implementation of the safety measure of compulsory treatment of drug addicts

The purpose of the safety measure of compulsory treatment of drug addicts is to remove the perpetrator of a criminal offence’s dependence on drugs and to stop his use of them. This is supposed to remove the circumstances which could influence the perpetrator to repeat a criminal offence because of his dependency on drugs.

The safety measure of compulsory treatment of drug addicts is implemented in prisons or medical institutions. We note with concern that the largest prison in Slovenia, Dob Prison, does not have the staff capable of carrying out treatment or of implementing the safety measure of compulsory treatment of drug addicts. Article 162 of the ZIKS stipulates that this safety measure, imposed together with a prison sentence, shall be implemented in a prison which has the facilities for such treatment. Since Dob Prison contains convicts serving the longest prison sentences we might expect that this institution would have the facilities for implementing the safety measure of compulsory treatment of drug addicts.

We have processed several applications from convicts sentenced to the safety measure of compulsory treatment of drug addicts who express their consent to such treatment. It is worth stressing here that treatment has much more hope of success if the patient consents to it, accepts it and thus submits voluntarily to treatment. The result of literal interpretation of Article 162 of the ZIKS, that a convict who has not yet served his sentence shall be sent, on conclusion of treatment, to serve (the rest of) his sentence in prison as per the instruction on the allocation and consignment of convicts, enables the conclusion that the implementation of the safety measure of compulsory treatment of drug addicts must begin immediately the convicted person begins a prison sentence. Such a time condition in the implementation of the safety measure of compulsory treatment of drug addicts is also indicated by its purpose, which lies in the prevention of criminal offences and in the removal of the danger shown by the convicted person when he committed a criminal offence because of his dependence on drugs. It is therefore surprising to see a practice whereby the safety measure of compulsory treatment of drug addicts only begins to be implemented after the serving of a prison sentence.

The mere fact that the safety measure of compulsory treatment of drug addicts has been imposed speaks for its implementation as soon as possible. This is both in the public interest and in the interest of the convicted person who committed a criminal offence because of his dependence on drugs. The earlier implementation of the safety measure of compulsory treatment of drug addicts would very probably also contribute to a reduction in the presence of drugs in prisons, which is likewise a factor worthy of careful consideration.

We propose that the UIKS, in connection with psychiatric hospitals or psychiatrists, should ensure the implementation of this safety measure immediately the convict begins a prison sentence. Another reason for this is that the treatment of drug addicts usually lasts a long time: when however the safety measure of compulsory treatment of drug addicts is imposed along with a prison sentence it may only last until the sentence is served (fourth paragraph of Article 66 of the KZ).

Cancellation from the driving licence of a ban on driving a motor vehicle

In misdemeanour proceedings resulting from a breach of the regulation on the safety of road traffic, an applicant was imposed the safety measure of prohibition from driving a motor vehicle under Article 39 of the Law on Misdemeanours. This safety measure is implemented by an entry on the driving licence stating that the holder is banned from driving the specific type or category of motor vehicle for which the ban is imposed for the duration of the safety measure. The subsidiary sentence of revocation of a licence to drive a motor vehicle imposed in criminal proceedings as per Article 39 of the KZ is implemented in the same way.

The safety measure in misdemeanour procedure of prohibition from driving a motor vehicle, and the subsidiary sentence in criminal procedure of prohibition from driving a motor vehicle, are imposed for a specific period lasting from one or three months to a maximum of one year. Despite the limitation of the duration of the safety measure/subsidiary sentence, we found in the case of the applicant that the ban on driving a motor vehicle noted on the driving licence was permanent and without a time limit. The ZIKS does not in fact provide for the cancellation of a ban on driving a motor vehicle. The draft of the new ZIKS, which likewise provides for the implementation of a ban on driving a motor vehicle by means of an entry on the driving licence, also lacked a provision on what happens to a ban recorded on the driving licence after it has expired.

During our intervention we drew the attention of the Ministry of Justice to the concept of rehabilitation, which is asserted in criminal law through the fiction of non-conviction, according to which the judgement is forgotten and the convicted person considered as not having been convicted. Through legal rehabilitation the judgement is erased from criminal records and all its legal consequences cease. Following cancellation of the judgement, the details of it cannot be communicated to anyone. If rehabilitation via cancellation of the judgement from criminal records applies to perpetrators of criminal offences in regard to the main sentence, a comparable allowance should also apply to the cancellation of the record of a ban on driving a motor vehicle from the driving licence in the case of a subsidiary sentence or a safety measure imposed in misdemeanour proceedings. The argumentum a maiori ad minus demands that the ‘consequences of judgement’ are also removed in misdemeanour proceedings or in the imposition of a subsidiary sentence, if the removal of these consequences is also provided for in the case of more serious offences which are punished by the main sentence in criminal proceedings.

The Ministry of Justice has taken our opinion into account. In agreement with the Ministry of Internal Affairs it has proposed to the government a new draft of the ZIKS with an addition in the sixth paragraph of Article 123 which stipulates that a person who has had a ban on the driving of a motor vehicle recorded on his driving licence may after the expiry of the sentence request from the competent body the issuing of a new driving licence. The same regulation is also proposed for the ban on driving a motor vehicle imposed in misdemeanour proceedings.

Christmas/New Year holidays for a convicted remand detainee, too?

Detention may last for the shortest time necessary. It is the duty of the bodies participating in criminal procedure to proceed with particular speed if the accused party is in detention. The judgement with which the applicant was sentenced to prison in the procedure under K 188/96 became final on 2 December 1997. The file with the appeal decision was returned to the Circuit Court in Celje on 19 December 1997. Unfortunately the judge of the first instance only took the matter up on 5 January 1998, when he issued the final rulings which enable the enforcement of the judgement. The judgement became enforceable on 12 January 1998, or 41 days after becoming final. The transfer of the convicted person from detention to prison was then ordered on 16 January 1998.

Taking into account the provision of the seventh paragraph of Article 361 of the ZKP, which stipulates that detention may (only) last until judgement becomes final, the remand detainee was justified in complaining about the slow progress of the work of the court following the appeal decision and, in particular, after the returning of the file to the Circuit Court in Celje. It is in the interest of the convicted person that following a final condemnatory judgement the court sends him to begin his prison sentence as soon as possible, since detention is usually in premises and under conditions less favourable than those to be found in prisons. The court justified its delay in handing down the judgement of the appeal court and in issuing the order for the enforcement of the prison sentence on the grounds of the judge’s intensive work on another important criminal matter and the Christmas/New Year holidays. Naturally, such grounds are for the convicted person a poor and unacceptable argument. We therefore propose that courts should devote more attention to the enforcement in good time of the final sentence by which a remand detainee is sentenced to imprisonment.

At least three hours in the fresh air for the inmates of the Radeče Correctional Home

During our visit to the Radeče Correctional Home we found that inmates, during enforcement of the disciplinary procedure of placement in a special room, are only allowed two hours of exercise in the fresh air a day. The same regulation (in the first weeks in the Home) also applied to inmates in the intensive treatment facility.

The provisions of the ZIKS which govern the enforcement of the educational measure of sending a young person to the correctional home do not expressly state how much time the young person has a right to be in the fresh air. We proposed to the Correctional Home an analogy with Article 105 of the ZIKS, under which convicted young persons must be in the fresh air during free time for at least three hours a day. We expressed the opinion that the regime regarding fresh air for inmates at the Correctional Home must be at least as lenient as that specified for convicted young offenders serving sentences in juvenile detention centres. The educational measure is a milder sanction than detention. We also drew attention here to the provisions of the Convention on the Rights of the Child under which every child (i.e. minor) deprived of his liberty must be treated in a way which takes into account the needs of his age.

The Correctional Home and the UIKS did not initially support our proposal. They appealed to Article 56 of the ZIKS, which applies to (adult) convicted persons and grants the right to only two hours a day in the fresh air. Since however Article 205 of the ZIKS stipulates that Article 56 of the same law shall also apply to young persons in the correctional home, their right is not violated since they are allowed two hours a day in the fresh air.

We pointed out that word-by-word interpretation of the second paragraph of Article 205 of the ZIKS only permits the use of Article 56 of the same law for ‘work and remuneration’ and not for other aspects of the position of young persons in the Correctional Home. The right of inmates to spend time in the fresh air does not come under the heading of ‘work and remuneration’. This is also very clear from the draft of the new ZIKS, which does not provide for the right to spend time in the fresh air in the articles which govern the work (and payment for the same) of the convicted person. Analysis of the text of the second paragraph of Article 205 of the ZIKS and its linguistic sense in this way does not enable the conclusion that young persons in the Correctional Home only have the right to time in the fresh air to the extent determined under Article 56 of the same law for convicted persons.

Of course the mere literal result of interpretation is not enough. The literal interpretation must be evaluated in relation to the purpose of the regulation or legal norm. In this connection we pointed out that the rights of the child must be the main guiding principle in all activities of state bodies which relate to children. This guiding principle has special weight in the case of young persons sentenced to the educational measure of a stay in the Correctional Home. Free time must be organised so that boarders spend sufficient time walking or taking part in sports and other activities in the fresh air. We therefore proposed that rather than use an analogy with Article 56 of the ZIKS, the Correctional Home should use an analogy with Article 105 of the same law and thus allow boarders to spend at least three hours a day in the fresh air even while undergoing the disciplinary measure of placement in special premises or while in the intensive treatment facility.

The UIKS then accepted our proposal and has reported that in the future the Radeče Correctional Home will allow all young persons to spend at least three hours a day in the fresh air. The draft of the new ZIKS will undoubtedly contain a provision under which young persons in the Correctional Home have the right to spend at least three hours a day in the fresh air.

Granting privileges to a convict without considering his attitude towards the victim of his criminal offence

Article 70 of the ZIKS deals with the granting of privileges and sets out the conditions for obtaining them. Convicted persons can be granted privileges for good behaviour, diligence and success at work and other educational reasons. It is therefore in the interest of the convicted person that he observes the house rules and shows active effort and cooperation in the carrying out of his individual programme of social rehabilitation. Through appropriate behaviour and cooperation with the education service, the convicted person can thus significantly alleviate the burden of his prison sentence. Privileges such as free outings from the institution, extended or unsupervised visits, partial or full use of an annual holiday outside the institution, are undoubtedly an enticing reward which deter convicted persons from getting involved in conflict situations in the institution.

Unfortunately, in determining the criteria for the granting of privileges the law completely overlooks the victim of the criminal offence and parties injured by the criminal offence committed by the convicted person. By way of illustration let us take the case of a mother whose daughter was the victim of homicide. In the damages suit against the perpetrator of the criminal offence of homicide, the court awarded her damages for immaterial and material loss. Notwithstanding the final and enforceable court ruling, the convicted person did not pay damages nor show serious signs of intending to do so, at least to an extent proportional to his abilities while serving his prison sentence. The applicant even claimed that the convicted person intended to alienate his property and thus make it impossible, or at least more difficult, to enforce the final judgement given in the damages suit. The applicant appealed to the Human Rights Ombudsman when she saw the convicted person driving a car through a major Slovene town after less than a quarter of his sentence had been served. As the injured party she found it hard to understand that he had already been granted the privilege of free outings from the institution, while he had still not done anything to try, at least in the form of satisfaction, to make good or mitigate the tragic consequences of the action he had committed.

The protection of the interests of the victim of a criminal offence must be one of the fundamental functions of criminal sanctions. We consider it a deficiency that the ZIKS does not include among the criteria for granting privilege’s the attitude of the person convicted of a criminal offence towards the victim or injured party. We believe that only a positive attitude towards the damage which arose through his criminal offence means serious compunction for the offence and thus the first step on the road to social rehabilitation which points to a change in the convicted person’s character that means that he will not repeat his criminal offences. We therefore propose that the draft of the new ZIKS be amended in such a way that one of the criteria for granting privileges to a convict is his attitude to the victim and the payment of damages. It would be worth observing the same criterion in relation to the decision on conditional discharge under Article 109 of the KZ.

Violation of the right to the protection of personal information during the issuing of a ‘group’ ruling

On 21 September 1998 the director of the UIKS issued a ruling on the temporary transfer of nine convicted persons serving prison sentences from Ljubljana Prison to Dob Prison. The ruling, which was also handed to all nine prisoners, contained the dates of birth of all nine of them and information on the lengths of their sentences, the dates of their commencement and the dates the sentences were due to end.

This ‘group’ ruling thus contains personal information on each of the nine convicted persons which only relates to them personally. None of them is entitled to be acquainted with the personal information of the other convicted persons mentioned in the ‘group’ ruling. Such a ruling constitutes a violation of the right to the protection of personal information and at the same time enables the abuse of that information. The ruling mentions individuals selected by chance who have no relationship with each other except that by the decision of the competent body they have been chosen for transfer to another prison.

The UIKS accepted our opinion with the result that now, in a similar case of a ‘group’ decision, it only gives the names of the convicted persons and mentions no other personal information. The question is, is this enough, or would it perhaps be more correct to issue a separate ruling for each convicted person? The law does not stipulate that information on the allocation and consignment of convicted persons to prisons is public or intended for other convicted persons. An analogy with criminal proceedings and a court ruling relating to several accused persons simultaneously is also unconvincing. In the case of convicted persons being transferred from one prison to another, no mutual (prior) connection characteristic of the concept of participation in criminal law, when two or more people have cooperated in one way or another in the realisation of a criminal offence, is involved

Failure to issue an administrative ruling to a prisoner

 

A prisoner at Dob Prison lodged, over a short period, several requests for a transfer to a semi-open facility. The prison issued a negative ruling on the first request. It did not however issue a written ruling on the following request, on the grounds that the convicted person was continuing to lodge transfer requests for the same reasons, ‘which is not acceptable since a final decision has already been made on the same matter in administrative procedure’. We pointed out that lodging requests is the convicted person’s right, and can also be done in the form of an application through which he appeals to the competent state body in administrative procedure. Likewise the position that a final ruling is an obstacle to a new ruling is unacceptable. In the case of a convicted person asserting a change in the actual state of affairs by means of a new application, it would be necessary to decide on the matter by issuing a new ruling in administrative procedure. If however he has only justified the new request with the same actual state of affairs, the conditions for initiating the procedure would not exist. Nevertheless the institution would, on the basis of the second paragraph of Article 125 of the ZUP, have to issue a resolution.

The UIKS confirmed that Dob Prison had not ruled on the second transfer request of the convicted person by issuing an administrative ruling. However it justifies the institution’s actions on the grounds that the convicted person could have made use of the right to appeal because of the institution’s silence. This possibility of course exists, but nevertheless the rule applies that in an administrative matter a ruling must be issued in writing and in good time, i.e. within the legal deadline. Such action is also required by the principle of legality. Even if a new transfer request were lodged every month, as Dob Prison has claimed was the case with this convicted person, this does not relieve the competent body of the obligation to rule on the lodged request. The failure to issue an administrative ruling constitutes an unlawful act and represents a violation of the rights due to the convicted person under the ZIKS in relation to the ZUP.

The issuing of a ruling following a warning from the Human Rights Ombudsman

Dob Prison issued a ruling on the removal of a convicted person from living quarters to a special room. The Ministry of Justice consented to the convicted person’s appeal, overturned the ruling from 16 February 1998, and referred the matter back to the body of the first instance to be readjudicated. During our visit to the prison in October 1998 the convicted person told us that he had still not received the new ruling. We found that after the overturning of the ruling the institution had not ruled on the matter again on the grounds that the convicted person had (also) been given a disciplinary punishment and that the period of removal to a special room counted as part of the disciplinary punishment. Thus the ruling on removal is supposed to have become a constituent part of the ruling on the disciplinary punishment.

We did not agree with this view. We pointed out that the institution should have issued a new ruling, as part of the procedure for ruling on the removal of the convicted person from living quarters, following the appeal ruling. Since it did not do this it had not completed the legal procedure, and therefore in fact the measure of removal from living quarters does not have a basis in a formal legal decision, while in consequence the convicted person’s right to appeal is violated. If a ruling is not issued, the convicted person who did not agree with the removal cannot appeal against such a measure. We proposed that Dob Prison should immediately issue a ruling on removal to a special room. On 14 October 1998 the governor reported to us that the prison had issued a new ruling to the prisoner as soon as its attention had been drawn to the mistake by the Human Rights Ombudsman.

Ruling delayed because of a misplaced file

A convicted person lodged a request to be transferred from Dob Prison to Radovljica or Celje. The negative ruling of the director of the UIKS was overturned by the Minister of Justice by a ruling on 23 April 1998 and the matter referred back to the body of the first instance to be readjudicated. Since a new ruling had not been made by the director of the UIKS by July 1998, the applicant requested the help of the Human Rights Ombudsman and at the same time decided to go on hunger strike.

The intervention of the Human Rights Ombudsman showed that the delay in the transfer procedure was the consequence of the fact that the file had been (mistakenly) placed in the UIKS archive. The matter was sorted out with the ending of the hunger strike and on 5 August 1998, though late, a new ruling on the applicant’s request for transfer to another prison was issued.

Improvements are possible in many other areas

To close, we should mention some other points which are not mentioned separately in the report but to which it is nevertheless worth drawing attention:

An important activity of Slovene prisons must be constant human rights training, particularly among employees who every day work directly with persons in custody. In deciding on the position of persons in custody, abuse of authority and arbitrary decision-making can quickly come about. Behind the high walls of the prison, far from the supervision of the public, such a temptation for those who hold authority is a daily one.

The importance of training is also worth emphasising in relation to convicted persons. If we help convicted persons acquire a trade while serving their prison sentence, we help them decide not to repeat their criminal offences when they are once again at liberty. In this regard it is a matter of particular concern that Dob Prison, the largest prison in Slovenia, (still) only has literacy and elementary education available.

Prisons are obliged to ensure the safety of all persons in custody. They must prevent, using all reasonable measures, those who are physically and mentally stronger from mistreating or exploiting those who are weaker.

Greater emphasis, particularly at Dob Prison, must be given to the right to complain to the governor of the institution. The practice whereby a convicted person has to wait several months for an interview with the governor must be changed. The governor must ensure that the complaints of persons in custody are dealt with quickly and fairly. If the governor receives more requests for interviews than he can deal with the convicted person must be allowed to speak to another person authorised by the governor within a reasonable time.

It is worth mentioning the wish of prisoners to have more opportunity to make telephone calls. The serving of a prison sentence must be oriented towards re-integration into the community, and not to exclusion from it. In this regard the contacts of prisoners with the outside world have an important place. Their contacts with immediate family members, relatives and friends should not be understood as a privilege but as a necessity. This particularly applies to telephone conversations, an important means of communication with the outside world. Our proposal, that the rules that apply to written correspondence should apply to telephoning, rather than the more restrictive rules that apply to visits, has yet to meet with an encouraging response.

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