19. 06. 2023
The institution of conditional release represents an opportunity for the convicted to reduce the time spent in imprisonment if the formal and material conditions defined in the provision of Section 88 of the Criminal Code are met. The imprisonment sentence appears to be the most intense interference with the fundamental rights and freedoms of a natural person.
According to the provision of Section 55 of the Criminal Code, an unconditional imprisonment sentence is imposed for a maximum of 20 years, unless it is an extraordinary increase of the imprisonment sentence (Section 59), the imposition of the imprisonment sentence on the perpetrator of a criminal offence committed for the benefit of an organised criminal group (Section 108) or an exceptional sentence (Section 54). The unconditional imprisonment sentence is carried out in prisons in accordance with Section 56 of the Criminal Code; at present, only two types of prisons are used, namely security and high-security prisons, furthermore there are established juvenile prisons. The criteria for placing a prisoner in a high-security prison are set out in Section 56(2)(b) of the Criminal Code, which provides that the court shall, as a rule, place in a high-security prison an offender who has received an exceptional sentence (Section 54), who has been sentenced to imprisonment for a criminal offence committed for the benefit of an organised criminal group (Section 108), who has been sentenced to imprisonment for an especially serious crime (Section 14(3)), who has been sentenced to a term of imprisonment of at least eight years, or who has been convicted of an intentional criminal offence and who has escaped or attempted to escape from custody, imprisonment or protective detention within the last five years. In the execution of the sentence, the convicted are then sorted in a particular prison according to an internal differentiation, in individual wards that are defined for different groups of convicts, in particular, men are separated from women.
Submission of an application for conditional release
Like most court proceedings, proceedings for the conditional release of a convicted person are initiated on application, although the competent court is entitled to decide on its own initiative, but in practice this does not usually happen. Section 331(1) of the Criminal Procedure Code declares that the court decides on conditional release from imprisonment at the request of the public prosecutor or the director of the prison where the imprisonment sentence is served, at the request of the convicted person or even without such a request, in a public session. It is less common in current practice for a proposal for conditional release from imprisonment to be proposed by a citizens' interest association.
The conditions which the convicted person must fulfil in order for his or her application to be granted are set out in the provisions of Section 88 of the Criminal Code, but even if all the conditions, both formal and material, are fulfilled, the decision on conditional release from imprisonment is left to the discretion of the court deciding on the application. Nonetheless, the court deciding on conditional release is obliged to give proper reasons for its decision, on what grounds it bases its decision not to release the convicted person from imprisonment. Although the Constitutional Court does not, in principle, interfere in the decision of the general courts on applications for conditional release based on the discretion of the courts, its intervention is necessary in exceptional cases. The case-law is thus proof that the decisions of the general courts cannot be arbitrary.
According to the provisions of Section 320(2) of the Criminal Procedure Code, in the case of persons serving an imprisonment sentence, decisions relating to the execution of that sentence are taken by the district court in whose district the imprisonment sentence is being served. The district court also has jurisdiction in cases where the conviction was decided by the regional court at first instance. This is mainly for reasons of economy of procedure and also because there is no need to convene a senate on the application, since the sole judge decides on the application. Local jurisdiction is derived from the provisions of Section 333(1) of the Criminal Procedure Code, which is determined by the district in which the sentence is served.
Requirements for an application for conditional release from imprisonment
Unless a specific form is prescribed by law for a certain type of submission, the submission should contain the elements specified in the provision of Section 59(3) of the Criminal Procedure Code, which is a general provision for the processing of submissions addressed to law enforcement authorities. The application is now submitted through the prison. The prison shall send the application of the convicted person to the district court within 10 working days, attaching to the application the positive opinion of the prison director. The positive opinion of the director is important for the consideration of the application, since in the event of a negative assessment by the prison director, the proposal for conditional release is returned to the convicted person in accordance with the provisions of Section 73(2) of the Act on the Execution of Imprisonment Sentences. Similarly, the prison shall notify the convict if the application is submitted before the expiry of the time limit for conditional release. However, the convict is entitled to request the prison to refer his or her application for conditional release to the competent court despite the notice. However, the prison no longer attaches the supporting documents to such a request, i.e. a positive opinion of the prison director on the evaluation of the course of the imprisonment sentence. The convicted person is informed of the sending of the application, so it can be tentatively expected that a hearing will be scheduled within 30 days of the date of sending such an application.
This term is not regulated in any legislation; it is a term that has been introduced in the course of practice in the context of the filing of an application for conditional release between the convicted and their attorneys.
The term "parole tourism" mentioned is a big topic among the convicted, as the decision-making practice of district courts varies widely when considering applications for conditional release. The convicted thus often choose the option of transfer to another prison in order to increase the likelihood of an application for conditional release being granted. This data are publicly available from the statistical yearbooks of the Prison Service of the Czech Republic, which are compiled and published annually on the website of the Prison Service.
A convicted person may be transferred to another prison for a non-temporary period pursuant to the provisions of Section 10 of Decree No. 345/1999 Coll., on the basis of a decision of the General Directorate of the Prison Service, in particular in order to maintain the purpose suitable for the purposeful execution of the sentence. The application shall be submitted by the convicted person through the director of the prison in which he or she is serving the imprisonment sentence. The transfer for a non-temporary period should not interfere with the decision on the conditional release, as it should be maintained that the convicted person is in a prison located within the jurisdiction of the court which will decide on the application. The Prison Service of the Czech Republic publishes annually a statistical yearbook, in which the activities and statistics of the Prison Service for the past year are listed. The yearbook is publicly available on the Prison Service website and it shows, among other things, the total number of applications for conditional release approved in 2021.
Unfortunately, in the Czech Republic, there are immense differences in the success rate of submissions of applications for conditional release in different prisons, the cost of prisoners is about CZK 18 billion per year, and we have the highest number of prisoners per 100,000 inhabitants after Russia and Turkey. Moreover, if the application is rejected, the convicted person is only entitled to submit a new application after six months have elapsed from the legal force of the rejected decision. Nevertheless, case-law has established that even this period can be shortened: However, a convicted person whose application under Section 88(1)(b) of the Criminal Code for conditional release after having served one-third of his or her imprisonment sentence has been rejected may submit a new application for conditional release under Section 88(1)(a) of the Criminal Code, provided that he or she has served at least half of his or her imprisonment sentence, even before the expiry of the period of six months from the legal force of the previous negative decision laid down in Section 331(1) of the Criminal Procedure Code, since the conditions for conditional release under Article 88(1)(b) of the Criminal Code are not identical to the conditions for conditional release required by Article 88(1)(a) of the Criminal Code. It is therefore not a repetition of the application within the meaning of the last sentence of Section 331(1) of the Criminal Procedure Code.