13. 03. 2022
There is something wrong with the way we impose punishments. According to the data presented in the Annual Report of the Prison Service of the Czech Republic, "The average daily prison population reached 19,008 in 2021, a year-on-year decrease of 277 persons. In 2021, the average daily expenditure per prisoner for the entire Prison Service of the Czech Republic was CZK 1,841." A simple calculation leads to the conclusion that running a "key industry" cost taxpayers CZK 34,993,728 per day in 2021. For the year a total of CZK 12,772,710,720.
According to the annual report, it was the same in the previous year and it will probably be similar this year. There are thus consistently around 200 prisoners per 100 000 inhabitants. According to server Europe in Data, in 2018, for example Lithuania (235) and several other European countries had more prisoners per 100 000 inhabitants. The highest number is in Russia (389). A totalitarian regime is probably not surprising in its position. What is surprising though, is the number of prisoners per 100,000 inhabitants in Liechtenstein (27), Iceland (37) and Finland (51). Most other European countries, with the exception of Turkey and Belarus, have considerably fewer prisoners. However, it is probably not possible to expect such a significant difference in the scale of criminal activity in countries with an order of magnitude fewer prisoners per 100 000 inhabitants than the Czech Republic. Clearly, there is something to the growing call for decriminalisation and greater use of alternative sentences. It is not only a humanitarian problem, but also a quite significant economic problem. The number of imprisonment sentences imposed is only one side of the coin, which I mention in order to deal further with the other. The conditional release from the imprisonment sentence. Judging by the current practice in this area of the judiciary, it seems that the rather considerable willingness to impose unconditional sentences is inversely related to the rather considerable reluctance to release convicts on parole. The magnitude of the problem is also indicated by the frequency with which the Constitutional Court has dealt with it in its decisions, particularly in the last two years, and the critical nature of its findings leading to a ruling of a violation of the constitutional rights of the convicted applicant for conditional release.
Pursuant to the provisions of Section 88(1) of the Criminal Procedure Code, after serving half of the sentence imposed or commuted by decision of the President of the Czech Republic, the court may release the convicted person conditionally if the convicted person has shown improvement after the judgment’s legal force, in particular in the execution of the sentence, by his or her behaviour and the fulfilment of his or her duties and
(a) he can be expected to lead a proper life in the future, or
(b) the court accepts a guarantee for the completion of the convicted person’s rehabilitation.
The convicted person must therefore satisfy the three conditions. The first is a purely formal one, although even in this case there have been occasional ambiguities in the calculation of the period of imprisonment. In practice, however, it is the assessment of the second condition (improvement) and the rather closely related third condition (the possibility of expecting the convicted person to lead a proper life in the future) that poses problems.
When deciding on conditional release from the imprisonment sentence, the courts proceed from the basic premise that there is no entitlement to conditional release. This often leads to decisions that resemble nobility arbitrariness rather than predictable decisions. The Constitutional Court has addressed this issue in its ruling when it overturned the original decision of the court of complaint on the rejected application for conditional release. The reasoning of the ruling states, inter alia, that "The exceptional nature of conditional release does not mean, however, that the courts have the possibility to decide arbitrarily or that they are not subject to the obligation to make decisions in a predictable and convincing manner. In the ruling in Case No. II. ÚS 482/18 of 28 November 2018 (N 195/91 SbNU 411), the Constitutional Court emphasised that the institute of conditional release is exceptional only in that, by the benevolence of the state, the convicted person does not have to serve the entire sentence under certain conditions. On the contrary, the exceptional nature of the institute in question does not lie in the fact that the court has the possibility to reject the convicted person's application for conditional release if the convicted person has fulfilled the statutory criteria. The rule of law requires the ordinary court to conditionally release a convicted person if he has fulfilled all the statutory conditions (paragraph 12)."
It is crucial to answer the question whether the convicted person has fulfilled the second condition, i.e. after the judgment’s legal force and "...in particular during the imprisonment sentence, he or she has shown improvement by his or her behaviour and the fulfilment of his or her duties". In other words, how to assess the available information about the convicted person’s behaviour during the imprisonment sentence and what of it is relevant to the decision on the application for conditional release. This is clearly the biggest problem with current decision-making practice. The courts' opinions in this aspect vary considerably. A concrete example of this divergence was the decision in the case of two convicts. They were convicted in a group criminal case, both for the same act, with the same legal qualification, and even to exactly the same sentences. Among other things, imprisonment sentence for an identical period of time. Both had the same civil history, both had no previous convictions, both had excellent evaluation from the imprisonment sentence, both had exactly identical possibilities in the event of conditional release (secured housing and even employment), both could demonstrably return to a highly skilled profession, and both were therefore also equally likely to commit no further crimes. However, each was serving a sentence in a different prison and so their applications were decided by different courts. In both cases, the public prosecutor agreed to the conditional release. The court released the first convict, while in the case of the second one the application was rejected. The latter court justified its decision by pointing out that the convicted person continued to contest his guilt in the subsequent proceedings (appeal). However, the first convicted person did the same in the same joint appeal. And with exactly the same reasoning. According to the court, which, in its statement, assessed the convicted person’s improvement ".... from a broader point of view - one can say in a material-formal sense...", the convicted person "... cannot be found to have sufficient self-reflection in the form of improvement", although, as the court stated above, a positive shift in his value ranking can be found. However, the court did not find that this shift was sufficient to obviate the need for the convicted person to be subjected to an educational influence by means of an imprisonment sentence.