Varuh ДЌlovekovih pravic

Deciding on the suspension of serving prison under the intervention act

On 29 March 2020, the Act on provisional measures for judicial, administrative and other public matters to cope with the spread of infectious disease SARS-CoV-2 (COVID-19) (ZZUSUDJZ) entered into force. Article 12 thereof determines that a prison governor may, ex officio, suspend the prison sentence of a convicted person for one month, if necessary to contain the spread of SARS-CoV-2 epidemic and if there are no security concerns. The suspension of a prison sentence can be extended, as long as grounds for suspension exist. In addition, to contain the spread of epidemic, the prison governor may, on the basis of ZZUSUDJZ provisions, transfer a convicted person from one prison to another prison or to another prison section (Article 11) and may grant early release to the convicted person (Article 13) no earlier than six months before the end of their sentence considering the conditions referred to in Article 108 of the Enforcement of Criminal Sanctions Act (ZIKS-1).

The ZZUSUDJZ does not explicitly determine that the procedure to suspend the prison sentence may be initiated upon the request of the convicted person. In our assessment, however, the convicted person should have the opportunity to at least state the reasons for such measure to be adopted in their case. This may be taken into account in deciding on the suspension of sentence ex officio under this Act focused on containing the spread of the epidemic. Consequently, this may (in addition to the fact that persons with a suspended prison sentence are not subject to potential infections in prison) contribute to reducing the overcrowding of prisons. Otherwise, the prison governors would not be able to effectively isolate infected persons, which would increase the probability of the virus spreading to convicted persons and prison staff. Contrary to sentence suspension under Article 82 of the ZIKS-1, the ZZUSUDJZ does not enable the convicted person and their immediate family members to submit a request, which implies that the legislator's purpose was not to focus on specific cases that the convicted persons themselves could call attention to, but to use this option as a tool provided to the prison governors to manage the current situation arising from the risk of spreading the coronavirus.

Security concerns are not defined in detail in this Act. However, they refer to all the circumstances that the prison governor may deem as having the potential to affect the abuse of a prison sentence (for example, the personality of the convicted person, their security grade, the risk of avoiding serving the remainder of the sentence, the time served, the type and manner in which the criminal offence was committed, the type of commencement of the prison sentence, possible pending criminal proceedings, etc.). The obligation to carefully judge (or decide ex officio) in each case what legal good protected by the Constitution should be given priority in a particular disputed case is left to the discretion of the body deciding on such proposals. Priority should be given either to those goods that are pursued by the notion of "security concerns" and may differ in the given circumstances, which are typical of a particular convicted person, or to those encompassed in the notion of containing the spread of the SARS-CoV-2 epidemic referred to in Article 12 of the ZZUSUDJZ. It should not be overlooked that, in general, health and life are among the highest protected social goods. In some cases, they may be found among the factors substantiating the justification of security concerns, while in other cases they constitute reasons in favour of suspension. Occasionally, legal goods will be subject to assessment in terms of both security concerns and justification of sentence suspension. 8.2-22/2020