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The New Penal Code in the Context of Development of Criminal and Penal Policy (the main new elements) PROF. JUDR. PAVEL ŠÁMAL, PH.D. The Supreme Court of the Czech Republic Charles University in Prague, Faculty of Law, Department of Criminal Law Comenius University in Bratislava, Faculty of Law,Department of Criminal Law The New Penal Code and Criminal Policy primary role of non-criminal measures for the protection of the democratic state institutions, the rights and freedom of individuals and the protection of life, health and property subsidiary role of criminal law within the legal order and society new legislation is based on relatively constant and fundamental principles of substantive criminal law The Fundamental Principles in the New Penal Code ultima ratio principle freedom of the individual and principle of humanity principle of legality individual criminal responsibility principle of liability for fault no punishment without law principle of proportionality of criminal sanction principle of depenalisation prohibition of retroactivity and analogy to the detriment of the offender The Main Objectives of the New Penal Code to ensure the protection of civil rights, fundamental freedoms and other values of a democratic society, human rights and the rule of law to ensure the implementation of the criminal policy of the democratic society based in particular on above mentioned principles to dispose of the relics of non-democratic conception of functions and purposes of substantive criminal law to achieve a comparable level with modern European criminal law to deepen the differentiation and individualisation of criminal responsibility to change the philosophy for imposing the sanctions to change the approach to the protection of significant social interests by means of criminal law and to prioritise fundamental human rights and freedoms over remaining interests protected by the Penal Code to introduce a comprehensive regulatory framework for the protection of minors New Elements of the Penal Code formal–material conception of crime new classification of criminal offences: offences and crimes change of the scheme of the special part of the Code revision and clarification of the constituent elements of crime better conditions for the judicial individualisation of sanctions The New Penal Code and the Implementation of Sanction Policy restrictions on imposition of unconditional prison sentences and endorsement of use of alternative sentences more severe criminal penalties for particularly serious crimes more lenient sanctions for juvenile offenders under the Juvenile Justice Act No. 218/2003 Coll. specific legislation on the sanctioning of legal persons under the Act No. 418/2011 Coll. on the Criminal Liability of Legal Entities Sanction Policy as a Part of Criminal Policy politicisation of criminality – strengthening of criminal repression influence of international organizations (European Union, Council of Europe) imposition of short-term unconditional prison sentences modification of conditional release aggravation of penalties for less serious crimes and for cases of recidivism slow start of use of alternative sentences low number of imposed monetary penalties restrictions on imposition of community service The Evolution of the Courts‘ Sanction Policy Year Unconditional prison sentence Conditional conviction to the punishment by prison sentence (including with supervision) Monetary penalty Community service Other individually imposed sentences Waiving of punishment Number of convicted % Number of convicted % Number of convicted % Number of convicted % Number of convicted % Number of convicted % 1996 13375 23,1 37020 63,9 4734 8,2 725 1,3 427 0,7 1693 2,9 1998 14656 27,1 33059 61,1 2634 4,9 1776 3,3 372 0,7 1586 2,9 2000 14114 22,3 35617 56,3 3571 5,6 7084 11,2 754 1,2 2071 3,3 2002 9659 14,8 34942 53,7 3500 5,4 13424 20,6 1165 1,8 2408 3,7 2004 10192 14,9 36162 52,8 2913 4,3 13031 19,0 1622 2,4 2817 4,1 2006 9997 14,4 38657 55,7 2678 3,9 11787 17,0 1386 2,0 2723 3,9 2008 10255 13,5 42157 55,6 5307 7,0 11193 14,8 993 1,3 2684 3,5 2010 11818 16,8 44403 63,1 3462 4,9 7420 10,5 1277 1,8 2051 2,9 2012 11602 16,2 45675 63,9 2847 4,0 8094 11,3 1501 2,1 1693 2,3 2013 8579 11,0 57465 73,7 2491 3,2 6746 8,7 1277 1,6 1352 1,7 2014 9568 13,1 50203 68,9 2569 3,5 7962 10,9 1102 1,5 1376 1,9 The Evolution of the Courts‘ Sanction Policy decrease in imposition of unconditional prison sentences during 2002-2008 compared to 1998 by almost one third after the entry into force of the new Penal Code, an upward trend aggravated penalties for frequently occurring offences (failure to perform maintenance obligation, obstructing the execution of an official decision) repeat property offences short-term sentences (up to one year) account for 2/3 of all imposed unconditional prison sentences The Evolution of the Courts‘ Sanction Policy in 2013 the percentage of unconditional prison sentences decreased to 11 % influence of the presidential amnesty decriminalisation and depenalisation of failure to perform maintenance obligation and obstructing the execution of an official decision and deportation in 2014 the percentage of unconditional prison sentences amounted to 13,1 % The Evolution of the Courts‘ Sanction Policy– Structure of the Imposed Alternative Sentences conditional conviction in 2014 it represented ¾ of the imposed alternative sentences on average, only 5 % of suspended convicted persons are subject to probation supervision community service the second most frequently applied alternative sentence monetary penalty, house arrest and other punishments limited application so far, the reduction of unconditional prison sentences hasn‘t led to a more significant decrease of incarceration rate The Evaluation of Judicial Practice in the Area of Imposing and Execution of Selected Criminal Sanctions in 2010 - 2011 judicial practice survey carried out by the judges of the Criminal division of the Supreme Court of the Czech Republic, published on the 12th of December 2014, No. 9/2014 of the Collection of Decisions and Standpoints short-term unconditional prison sentences (sentences of up to one year) must be imposed only exceptionally, mostly in cases of repeat offenders imposition of an alternative sentence must be considered especially in cases where the court considers imposing an unconditional prison sentence of up to three or six months The Evaluation of Judicial Practice in the Area of Imposing and Execution of Selected Criminal Sanctions in 2010–2011 house arrest small number of cases (lack of electronic control system), increase in frequency of application needed community service should be imposed within the whole sentence range, conversion into a monetary penalty or a punishment by house arrest prohibition of entry to sporting, cultural and other social events increase in frequency of application needed monetary penalty the most important property punishment, the judicial practice must be changed - courts impose it rarely or don‘t impose it at all The Evaluation of Judicial Practice in the Area of Imposing and Execution of Selected Criminal Sanctions in 2010–2011 conditional conviction to imprisonment the number of conditional convinced persons is increasing to the detriment of community service punishments and monetary penalties need to impose alternative punishments more frequently, especially the punishment by house arrest need for more frequent imposition of appropriate restrictions and reasonable obligations and educational measures for the offenders of an age close to the legal age of a minor conditional suspension of the criminal prosecution and approval of settlement more attention must be also paid to the diversions The Evaluation of Judicial Practice in the Area of Imposing and Execution of Selected Criminal Sanctions in 2010–2011 the practice of the Public Prosecutor‘s Office the approach of public prosecutors has also an impact on imposing of short-term unconditional prison sentences and use of alternative sentences need to focus on use of alternative sentences and diversions need to focus on new punishments introduced by the new Penal Code – house arrest and prohibition of entry to sporting, cultural and other social events increased activities are recommended while proposing to impose appropriate restrictions and reasonable obligations and educational measures for the offenders of an age close to the legal age of a minor The Evaluation of Judicial Practice in the Area of Imposing and Execution of Selected Criminal Sanctions in 2010–2011 legislative proposals and other related measures house arrest proposal for change of the Section 61 of the Penal Code and reintroduction of alternative prison sentence instead of relative conversion according to the legislation in force conditional suspension of the criminal prosecution and approval of settlement basic conditions for settlement are the same as for conditional suspension of the criminal prosecution – settlement should be regulated in such a way that its use would be beneficial for the law enforcement authorities as well as for the accused and the victim Conclusions effective sanction policy must be based on a detailed analysis and a realistic assessment of the possibilities of criminal repression creation of conditions favourable to resocialization and reintegration of each offender in the society importance of post-penitentiary care need to accomplish prison reform compliance with the principles of restorative judiciary Thank you for your attention!