The existing regulations in the penitentiary code are contrary to the provisions of the criminal code
According to the Criminal code, the fine shall be replaced by imprisonment under one condition, if there is no property subject to confiscation.
The Penitentiary Code provides for three conditions for replacing a fine with imprisonment:
- If the compulsory enforcement service has not found property,
- or the found property is not enough to pay the fine,
- when it is necessary to file a claim for the division of the property or the separation of a share in order to pay the fine.
OBSERVATIONS
Replacing the fine with imprisonment will lead to the formal interpretation and violation of Article 59 of the Criminal Code, because in the presence of property subject to confiscation, the fine is replaced by imprisonment due to the inexpediency of confiscation but restorative justice suggests that imprisonment shall be applied as extreme measure and for a short period of time.
The Expert finds that:
- the two conditions for replacing a fine for imprisonment envisaged by the Criminal Code, when the found property is not sufficient to pay the fine or when it is necessary to file a claim for the division of the property or to separate a share in order to pay the fine, are outside the scope of the condition specified by the Criminal Code.
- the fine shall be replaced by imprisonment, only if there is no property subject to confiscation.
- when the found property is not enough to pay the fine, it shall be confiscated, and the unpaid part of the fine shall be replaced by imprisonment.
- when, in order to pay the fine, it is necessary to file a claim for the division of the property or to separate the share, it shall be submitted and the confiscation shall be executed in this way.