Alternative Form of the Enforcement of a Prison Sentence
In Decision No. U-I-418/18, Up-920/18, dated 5 November 2020 (Official Gazette RS, No. 191/20), the complainant challenged a final decision that dismissed her request to postpone the enforcement of her prison sentence. She alleged that before the court issued the order to serve a prison sentence, it should have decided by a final decision on her motion for an alternative form of enforcement of her prison sentence or it should have postponed the enforcement of the sentence despite the fact that the Enforcement of Penal Sentences Act does not determine that a motion for an alternative form of enforcement of a prison sentence that was filed on time but that has not yet been decided on by a final decision is a circumstance that is a reason for the postponement of the enforcement of a prison sentence.
The petitioner challenged the regulation determined by the Enforcement of Penal Sentences Act, while the Constitutional Court adopted an order initiating proceedings for a review of the constitutionality of the Criminal Procedure Act. It established that the legal order allows that a convict for whose benefit a motion for the alternative enforcement of his or her prison sentence was filed when he or she was still at large will begin serving his or her prison sentence in prison even before such motion has been decided on by a final decision. A final judgement containing the imposition of a prison sentence without a decision on the alternative enforcement of such sentence establishes the duty of the convict to serve the imposed sentence in prison. Decision-making on a motion for the alternative enforcement of a prison sentence imposed by a final judgement entails decision-making on the stated duty of the convict. Proceedings regulated by law in which a motion for the alternative enforcement of a prison sentence is decided on must therefore observe the constitutional requirements despite the fact that the Constitution does not guarantee the right to such proceedings. These requirements include, inter alia, the right to judicial protection ensured by the first paragraph of Article 23 of the Constitution, which determines that everyone has the right to have any decision regarding his or her rights and duties made without undue delay by an independent, impartial court constituted by law.
The Constitutional Court clarified that the effective enforcement of a prison sentence, which entails the final execution of the aim of criminal prosecution (i.e. the criminal sanctioning of criminal offenders), is an important constitutional value and entails a constitutionally admissible objective for an interference with human rights. By the effective enforcement of imposed prison sentences respect for the principle of the finality of legal decisions determined by Article 158 of the Constitution is ensured, which has an important constitutional status that is additionally guaranteed by the human right to judicial protection. The Constitutional Court nevertheless held that as the statutory regulation does not contain a mechanism excluding the risk that a final decision in favour of a motion for the alternative enforcement of a prison sentence filed for the benefit of a convict who is at large at the time such motion was filed will be adopted only when the convict is already serving his or her prison sentence in prison, it narrows the convict’s right to judicial protection to such an extent that it is not proportionate, in the narrow sense, with the benefits it pursues. In such instance, the effectiveness of the alternative enforcement of a prison sentence is significantly impaired and respect for the finality of legal decisions cannot outweigh the lost benefit. Such applies even more since in proceedings in which a motion for the alternative enforcement of a prison sentence is decided on the finality of legal decisions does not have the weight that it normally has because the proceedings at issue are special proceedings enabling an interference with a final judicial decision.
In the opinion of the Constitutional Court, as the regulation does not contain a mechanism for excluding the risk that due to the passing of time a convict may have even already served his or her prison sentence before the decision on the merits regarding the motion for the alternative enforcement of the prison sentence is adopted, it hollows out the convict’s right to judicial protection. What is at issue in this case is not that the interference is disproportionate in the narrow sense, but the fact that the hollowing out of a human right cannot be justified, not even by an objective that could be constitutionally admissible for other interferences. The Constitutional Court therefore held that the mentioned statutory regulation is inconsistent with the right to judicial protection determined by the first paragraph of Article 23 of the Constitution.
The complainant began to serve her prison sentence before the final decision on her motion for the alternative enforcement of the prison sentence was adopted. The Constitutional Court therefore held that for the same reasons that render the challenged statutory regulation inconsistent with the Constitution, the challenged judicial decisions violated the complainant’s right to judicial protection. Since the challenged decisions were no longer effective, the Constitutional Court merely established a violation of the human right at issue.