Zbornik Radova Pravnog Fakulteta u Nišu (Jan 2017)
Conditional release in the law of Republic of Serbia: Theory, practice and comparative law
Abstract
In the contemporary criminal law, a prison sentence is the basic and most important type of criminal sanction which may be imposed on criminal offenders for the purpose of preventing and counteracting crime. All criminal legislations recognize different models of imposing and executing the unconditional prison sentence. These are different substitutes or alternatives applicable in cases where unconditional imprisonment is not considered necessary. Thus, we can distinguish two forms of suspension of the prison sentence or some other kind of punishment: full and partial suspension. Full suspension of a prison sentence is known as a suspended sentence. It implies a complete exemption from the execution of a prison sentence (and/or some other punishment or measure) imposed by the competent court, for a specified period of time (probation period) and under specific conditions. In case the convicted offender who has been imposed a suspended sentence not meet the general and specific, mandatory or optional requirements, criminal law provides for the mandatory or optional revocation of the suspended sentence. In addition to the suspended sentence as a form of executing the imposed prison sentence, some modern criminal laws also recognize the suspended sentence as a special kind of criminal penalty, i.e. as a warning measure. Partial suspension of the imposed prison sentence (or any other criminal sanction of institutional character) is called a conditional release. It implies a partial suspension of prison sentence under certain conditions and for a specified period, but only after the convicted offender has already served part of the imposed prison sentence. In order to be granted a conditional release, the convicted offender has to cumulatively meet the prescribed requirements. These criteria are used for assessing the scope of attained special prevention pertaining to the convicted offender, particularly in terms of the impact exerted on his/her correction, re-education and re-socialization. The prerequisite for implementing these measures is the fulfillment of the formal requirements (including the type and duration of the imposed and served prison sentence), as well as the requirements related to the discretionary court assessment that prison sentence is no longer necessary in the specific case because the goals (purpose) of punishment may be achieved even without the enforcement of prison sentences in whole or in part. In this paper, the author discusses the concept, characteristics, requirements and methods of implementing these forms of prison sentence suspension in the criminal law of the Republic of Serbia from the perspective of legal theory, practice and comparative law.
