In the Collection of Laws, a new Criminal Code was promulgated under No. 40/2009 Coll., which completed a long-term process of recodification of substantive criminal law. Taking into account the number of reservations from experts who are theorists of criminal law, it can be said that this is a modern criminal norm of the twenty-first century which, unlike its predecessor, deals much more purposefully and effectively not only with existing criminality but also punishes such criminal offences which are connected with the development of modern society and new technologies. The new codification of the Criminal Code is based on the conviction that the protection of the democratic state and social order, the rights and freedoms of individuals and the protection of their life, health and property must be achieved primarily by non-criminal means. Unlawful conduct must be responded to by means of criminal law only in extreme cases in accordance with the subsidiary role of criminal law in the legal order and in society. Criminal policy, pursuing the control and suppression of criminality, must therefore be based on a suitable balancing of prevention and repression. Criminal law and the criminal law qualification of certain conduct as a criminal offence must be regarded as a last resort (ultima ratio), which is significant from the point of view of protecting fundamental societal values where other means are exhausted, ineffective or unsuitable from the point of view of protecting the rights of natural and legal persons.

Legal regulation of alternative sentences under the Criminal Code

Neither the existing Criminal Act nor the new Criminal Code regulates the definition of an alternative sentence. An alternative sentence means a sentence not connected with imprisonment in cases where the offender could already be sentenced to an unconditional sentence of imprisonment, as it guarantees the fulfilment of the purpose of the sentence in the same way as if a classic sentence of imprisonment were imposed on the convicted person. Criminal courts, under the existing legal regulation, impose from alternative sentences in particular the sentence of conditional conviction and conditional conviction with supervision, the sentence of community service and the pecuniary sentence. Other alternatives to a sentence of imprisonment may also be the sentences of forfeiture of a thing, forfeiture of property, prohibition of activity, prohibition of residence and expulsion, which are imposed by courts as independent sentences quite exceptionally.

The new philosophy of imposing criminal sanctions enshrined in the Criminal Code is based on the principle of depenalisation, where on the one hand, in addition to existing criminal sanctions (sentences and protective measures), which are regulated to the necessary extent, new more effective alternative sanctions are conceived, which are also formulated with regard to the adequate satisfaction of victims of criminal offences. Within the framework of a substantial intervention in the existing legal regulation of alternative sentences, the Criminal Code has newly extended their exhaustive list to include also the sentence of house arrest (Section 60 of the Criminal Code) and the sentence of prohibition of entry to sporting, cultural and other social events (Section 76 of the Criminal Code).

Purpose and significance of the sentence of house arrest

According to the report of the Prison Service of the Czech Republic, a total of 35 prisons are located in the Czech Republic, the capacity of which is exceeded by a total of 15 per cent. As of 1 July 2009, around 22,000 people were registered in all prisons, with a further almost 7,500 convicted persons having the execution of their sentence ordered by the court, whilst they have not yet entered prison.

As the main arguments for the introduction of the sentence of house arrest, financial savings compared to the execution of a sentence of imprisonment in prisons are generally stated. The introduction of an electronic monitoring system (so-called “bracelets”) for approximately 700 persons will require, on the basis of foreign experience (Electronic monitoring in practice, according to Home Office Research Study 177, 2001), an acquisition amount of approximately CZK 559 million in the first year (if the equipment were to be acquired new). For the anticipated number of approximately 700 monitored persons, the annual costs would amount to approximately CZK 50 million. According to the annual report of the General Directorate of the Prison Service for 2006, the average daily costs per convicted person in the execution of a sentence of imprisonment amount to CZK 872, which represents annual costs of CZK 318,280. The annual costs of control (operational) of one person convicted to a sentence of house arrest in an electronic monitoring system amount to approximately CZK 28,572. This sum represents only approximately one tenth of the annual cost of a convicted person in the execution of a sentence of imprisonment. A further fundamental advantage of the sentence of house arrest is to be the preservation and maintenance of the social ties of the convicted person in his immediate surroundings in which he lives. The said sentence provides a wide possibility of positive influence on the offender, who is not exposed to the danger of harmful influences of the prison environment. During the execution of the sentence in the home environment, moreover, the personal, family and work relationships of the convicted person are not severed, when the convicted person himself is not exposed to such a high degree of stigmatisation as a person who has been placed for the execution of a sentence of imprisonment in one of the prisons. Critics of the sentence of house arrest point to its interference with the rights and freedoms, in particular the privacy of the convicted person and his relatives, and the violation of the principle of equality, when a homeless person is essentially disadvantaged compared to an ordinary citizen with permanent residence and employment. It is therefore clear that the sentence of house arrest will be possible to impose only on socially integrated persons, i.e. persons with a background with the assumption that they will value the imposed sentence, not recidivists. It can only be assumed that the sentence of house arrest will be an ideal sanction in the case of pronouncement of guilt, for example, for traffic accidents or in pre-trial detention proceedings.

Legal regulation of the sentence of house arrest and its execution

The sentence of house arrest should be primarily an alternative to an unconditional sentence of imprisonment. According to the provision of Section 60 of the Criminal Code, “the court may impose a sentence of house arrest for up to two years if it sentences the offender for a misdemeanour (přečin), if, having regard to the nature and seriousness of the misdemeanour committed and the person and circumstances of the offender, there is reasonable ground to believe that the imposition of this sentence will suffice, and possibly also in addition to another sentence, and the offender gives a written promise that he will remain in a dwelling at a specified address during the specified time. As an independent sentence, the sentence of house arrest may be imposed if, having regard to the nature and seriousness of the misdemeanour committed and the person and circumstances of the offender, the imposition of another sentence is not necessary.” The cited provision is closely related to the new categorisation of criminal offences into misdemeanours and felonies, which, within the framework of the new legal regulation, introduces a bipartition of criminal offences. According to the new Criminal Code, misdemeanours are considered to be all negligent criminal offences and those intentional criminal offences for which the Criminal Act stipulates a sentence of imprisonment with an upper limit of the sentencing range of up to five years (Section 14(2) of the Criminal Code).

The imposition of a sentence of house arrest de facto requires the consent of the offender, but does not require the consent of any cohabiting persons, which may in certain cases collide with the inviolability of the dwelling of these persons within the meaning of Article 12 of the Charter of Fundamental Rights and Freedoms. The execution of a sentence of house arrest consists in the obligation of the convicted person to remain in the specified dwelling on days of work rest and work leave for the whole day and on other days from 20.00 hours to 05.00 hours, unless he is prevented from doing so by important reasons, in particular the performance of employment or profession or the provision of medical care in a medical establishment as a result of his illness. In the event of the illness of the convicted person, the medical establishment is obliged to communicate this fact to the criminal proceedings authority at its request. The court may permit the convicted person to attend regular worship or religious gatherings also on days of work rest and work leave. The court may impose on the offender for the duration of the execution of this sentence appropriate restrictions or appropriate obligations referred to in Section 48(4) of the Criminal Code, directed towards his leading a proper life. As a rule, it will also impose on him that he compensate according to his abilities for the damage which he caused by the criminal offence. If the offender is of an age close to the age of juveniles, the court may, in the interest of utilising the educational influence of the family, school and other entities, impose, either independently or in addition to the appropriate restrictions and appropriate obligations referred to in Section 48(4) of the Criminal Code, also some of the educational measures referred to in the Act on Juvenile Justice with analogous application of the conditions stipulated for juveniles.

If the court imposes a sentence of house arrest, it shall stipulate, in the event that the execution of the sentence is frustrated, a substitute sentence of imprisonment of up to one year. In the event that the convicted person fails to observe and respect the above-mentioned conditions and frustrates the execution of the sentence of house arrest, the court shall decide on the execution of the entire substitute sentence of imprisonment and at the same time shall also determine the manner of its execution. It might seem that the possible execution of the entire substitute sentence of house arrest, in the event that the convicted person frustrates its purpose at a time when one month or one week remains until its complete execution, is disproportionately harsh. However, the legislator, by the threat of execution of the entire substitute sentence, wished to consistently motivate the convicted person to execute the sentence of house arrest in full.

According to the provision of Section 334b of the amended Criminal Procedure Code, “control of the execution of a sentence of house arrest is ensured by the Probation and Mediation Service in cooperation with the operator of an electronic control system, which enables detection of the movement of the convicted person or by spot checks carried out by a probation officer.” For this purpose, the convicted person is obliged to enable the probation officer to enter the place of execution of the sentence. The operator of the electronic system in countries where the sentence of house arrest has already proved itself (e.g. the USA, France, England, Wales) is usually a private company, which can ensure control of the convicted person either by means of satellite tracking or through an electronic bracelet. Monitoring of the convicted person through GPS, despite the development of increasingly sophisticated technology, has not yet proved itself in practice. The main deficit of satellite control is insufficient coverage of the entire territory of the controlled area by a signal from the satellite, which can cause insufficient or complete loss of connection with the convicted person, for example in the rooms of a building, where it does not function reliably. Moreover, GPS is only able to receive data; it would therefore be necessary to resolve the sending of the location to the “dispatcher” – probably by mobile system, via GPRS. The second form of electronic monitoring through an electronic bracelet has proved itself very well in practice. It consists in the fact that a plastic strap with an electronic chip is attached to the ankle of the convicted person’s leg, which constantly transmits a signal received by a control unit. This control centre with a transmitter and telephone line is located in the flat of the convicted person. The connection between the bracelet and the control unit is monitored at regular intervals by a control centre through a computer system. Any interruption of the connection between the bracelet and the control unit is evaluated by the control centre. A worker of the centre ascertains the cause of the signal interruption and, in the event that he manages to contact the convicted person, dispatches an operational worker to the place, who ascertains or eliminates the cause of the malfunction. If it is ascertained that the cause of the signal interruption is the voluntary departure from the place of execution of the sentence of house arrest by the convicted person, the probation officer or the relevant court is informed. The substitute sentence of imprisonment is usually ordered immediately by the court and the convicted person can thus execute the sentence in a classic prison within several hours. As has already been indicated above, the economic and technical equipment, including ensuring the personnel operating the monitoring device, should be resolved by the state through the purchase of a service from a private operator. This method is also commonly used in other countries and is more advantageous and cheaper for the state than if it were forced to ensure it with its own resources.

The state has failed to ensure the manner of execution of the sentence of house arrest

Unfortunately, it has turned out that the introduction of the sentence of house arrest, as it was envisaged in the Criminal Code from 1 January 2010, is a somewhat hasty and unprepared step. There are not sufficient financial resources for the material securing of the execution of this sentence and its operation, as the government ultimately gave priority to the establishment and operation of data boxes. The insufficiently satisfactory and provisional solution of the government is ensuring the execution of the sentence of house arrest by spot checks by workers of the Probation and Mediation Service. The caretaker government was therefore forced to suspend the full launch of the house arrest project and divide it into three partial phases, when the first consists in the necessary personnel and material strengthening of the Probation and Mediation Service (approximately 90 additional posts). In the first phase, the Probation and Mediation Service is to determine which offenders are suitable for the imposition of a sentence of house arrest and, until an electronic control system is introduced, to take care of spot checks of convicted persons together with the police and work with them. During 2011, electronic monitoring of convicted persons could be introduced. The second phase of the project follows with the introduction of electronic monitoring of convicted persons and the completion of amendments to the laws connected with this. The Ministry, in connection with the introduction of the electronic control system, requested a grant from the funds of the European Union. If the EU were to provide the grant, the state would, according to the submission report, pay 30 per cent of the costs and would save approximately CZK 111 million. These financial resources would enable the introduction of an electronic monitoring system with much smaller impacts on the state budget than was originally anticipated. In the third phase, for the period 2011–2013, the linking of the application of the sentence of house arrest and the electronic monitoring system with new legislative regulations and the activity of the Probation and Mediation Service in the form of comprehensive implementation into the practice of Czech justice is planned.

Having regard to the above, in particular the fact that electronic control of convicted persons will not be implemented for some time, the author of this article considers the control of the sentence of house arrest, in the event that it is imposed by the court, by workers of the Probation and Mediation Service to be insufficient. It is quite probable that the courts will not proceed to its imposition at all, as control by the Probation and Mediation Service devalues this sentence among other sanctions, from the very beginning of its introduction. At the moment of introduction of electronic control of convicted persons, the execution of the sentence can be considered a contribution and a significant alternative to an unconditional sentence.

This text was translated from Czech to English using an AI translator.