How to get out of court with probation?

Chapters of the article

• Suspended imprisonment
• What are the conditions for a suspended sentence?
• What can be further imposed under probation?
• Conditional sentence with supervision
• Expiry of probation
• What happens if the offender breaches the condition?
• Conditional release from sentence
• When can an application for parole be made?

Conditional suspension of imprisonment

Suspension of imprisonment shall apply only to a sentence of imprisonment. It is not granted for other types of sentences (for example, forfeiture of property or prohibition of activity). It consists in fixing the length of the custodial sentence, but also setting a reasonable probationary period of between one and five years, during which the sentence is suspended. In practice, therefore, the convicted person is free after sentencing, goes to work and can continue to live a normal life, but the sword of Damocles hangs over him in the form of possible imprisonment if he fails to lead a proper life and comply with the terms of the court.

In considering whether to impose only a suspended sentence, the judge is guided by the theory of punishment and its purpose.

There are several functions of punishment:

• Educational – it is intended to help the convicted person to realise what he or she has done and, ideally, not to repeat the act again.
• Preventive – which shows that such behaviour must not be tolerated in society and should also deter other potential offenders.
• Protective – punishment also has an impact on society, especially to protect it from, for example, dangerous offenders who are put in prison.
• Restorative – the punishment should also restore the original fairness of the situation – the convicted person can pay for certain damages, return an object, etc.

If the judge considers that the purpose of the sentence will be achieved without its execution, for example, because the criminal proceedings and the court hearing itself, together with the threat of imprisonment, will fulfil a sufficiently educational, preventive (and thus essentially protective) function of the sentence, he may proceed to impose only a suspended sentence. If necessary, the correction of a just situation may also be achieved by the simultaneous imposition of another type of sentence.

What are the conditions for a suspended sentence?

It must be stressed that there is no legal entitlement to a suspended sentence. However, the law presupposes certain circumstances in which a suspended sentence may be considered at all:

• The suspended prisonsentence does not exceed three years – this is meant to refer to the specific sentence to be imposed, not to the upper rate that could theoretically be imposed.
• Theoffender’s person and circumstances – particular account is taken of the offender’s previous life and the environment in which he has lived. It is examined whether he is a recidivist and whether he has committed a rather ‘random’ excess in an otherwise orderly life.
• This is indicated by the circumstances of the case – circumstances which do not concern the offender but the offence itself, i.e. its gravity, mitigating circumstances, etc.

What else can be imposed under probation?

Other measures imposed by the judge can sometimes help the sentence to fulfil its purpose. In particular, if the offence was related to substance abuse or other addictions, measures such as: undergoing treatment for substance abuse or gambling addiction, abstaining from alcoholic beverages and other addictive substances, undergoing psychological counselling, abstaining from gambling and gambling machines, and abstaining from visiting inappropriate environments can help. Other measures imposed in addition to the suspended sentence may include payment of the amount owed (e.g. in the case of non-payment of maintenance), a public apology to the victim, an obligation to compensate for any damage or to surrender any unjust enrichment.

Conditional sentences with supervision

In addition to a “simple” suspended sentence, another variant is a suspended sentence with supervision. The general conditions for its imposition remain the same, except that in this case greater control of the offender is appropriate and his behaviour should be monitored regularly. Supervision means cooperation with a designated officer of the Probation and Mediation Service, whom the convicted person visits at regular intervals. Alternatively, the probation officer may visit the offender’s home or otherwise implement the probation supervision plan.

Expiry of probation

If the probationer has proved himself during the probationary period and the suspended sentence has not been converted into an unconditional sentence, the court shall decide that he has proved himself. Thereafter, the convicted person shall be treated as if he or she had not been convicted at all and the conviction shall not appear on the criminal record. He or she may thus be able to satisfy the good character requirement, for example, with a new employer.

What happens if the offender breaches the condition?

The court itself, or in cooperation with a probation officer, should check the behaviour of the convicted person at least once every six months. If the convicted person has not proved his or her worth (for example, by breaching the obligations imposed or committing another offence), it is likely that the court will decide to suspend the sentence. However, this is not an automatic procedure and even in such a case it is not excluded to re-impose or extend the probationary period or to provide for supervision.

Conditional release from sentence

The second way to be “on parole” is if the convicted person has served his or her sentence, has served part of it, and has demonstrated improvement by his or her behaviour in prison. In such a case, the court may release him or her on parole.

Theapplication for conditional (sometimes incorrectly referred to as “parole”) release must be addressed to the district court in whose district the prison containing the convict is located. The district court should also receive the application if the sentence has been decided by a regional or high court. It is free of charge.

The application does not have any specific requirements, but it should state why the court should grant the conditional release, what the convict’s behaviour was during the sentence, whether the sentence has led to his rehabilitation and what his plans and possibilities are after his release.

When can I apply for parole?

• After one-third of the sentence has expired, if it is the first time the offender is serving an unconditional sentence and it is not a conviction for a particularly serious crime.
• After two-thirds of the sentence has elapsed in cases where the sentence has been imposed for one of the particularly serious crimes listed in the law and in cases where an exceptional sentence of between 20 and 30 years has been imposed.
• At the earliest after twenty years, if the sentence was imposed for life imprisonment.
• After half of the sentence in all other cases.

In making its decision, the court examines only the conduct of the convicted person while serving the sentence, not that which preceded the imposition of the sentence (which should have been examined when the sentence was imposed). It shall also take into account whether the sentenced person entered into custody on time and whether, for example, the damage caused by him or her has been repaired in some way or whether unjust enrichment has been provided.

Conditional remission of sentence need not be limited to imprisonment. The law also allows it in the case of serving a sentence of prohibition of activity, prohibition of keeping and breeding animals, prohibition of residence, or prohibition of entry to sports, cultural and other social events. In these cases, the application may be filed after half of the sentence has been served, and the court may set a probationary period of up to five years.

In the case of conditional release, the situation is very similar to that described above for suspended sentences. The convicted person is placed on probation for a period of between one and seven years and may be subject to other restrictions (for example, staying in his or her home). Also in this situation, the supervision of a probation officer is allowed and usually appropriate.