Impact Assessment of the Application of Alternative Sanctions and Measures in Serbia, 2015 to 2020

Kolaković-Bojović, Milica and Batrićević, Ana and Matić Bošković, Marina (2021) Impact Assessment of the Application of Alternative Sanctions and Measures in Serbia, 2015 to 2020. Institute of Criminological and Sociological Research ; Organization for Security and Co-operation in Europe; OSCE Mission in the Republic of Serbia, Belgrade.

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Abstract

A multiyear increasing number of persons deprived of liberty, which led to a rate of incarceration of 159.9 compared to the European average of 103.2 at the end of 2019, together with data on a high share of inmates in the total number of persons deprived of liberty, as well as a high share of shortterm imprisonment sentences that accounted for as much as 38.78% in the total number of imposed imprisonment sentences in 2020, speak of the existence of significant, additional room for extended use of non-custodial sanctions and measures in the Republic of Serbia. General indicators of the application of non-custodial sanctions and measures (NCSMs) in 2015-2020 point to the existence (except for 2019) of a positive trend, whereby the share of alternative sanctions in 2020 was 16.5% compared to the total number of the executed criminal sanctions, a significant increase compared to 2016 when it was 9.7%. When it comes to the structure of the imposed NCSMs, not counting special obligations that condition the deferral of criminal prosecution, house arrest with the use of electronic monitoring is dominating, followed by house arrest without electronic monitoring, then community service and home detention with or without electronic monitoring. Suspended sentences with protective supervision occur only sporadically, whereby house arrest with or without electronic monitoring, with 35% and 32% respectively, accounts for almost 70% of all NCSMs; community service makes 14%, house detention with the use of electronic monitoring 11%, house detention without the use of electronic monitoring 8%, and suspended sentences with protective supervision do not even reach half a percentage point. When it comes to the greatest challenges concerning the wide use of NCSMs, a need is apparent for the improved exchange of information and experience between judges, prosecutors and probation officers on the organisation and functioning of the Probation Service and problems in enforcement practice, especially at the level of higher courts. An inadequate normative framework and inadequate case management solutions in the area of recording and processing statistical data on the imposed NCSMs, as well as the training of the administrative staff in court registries, are also noticeable. The absence of information on the capacities of the Probation Service or the lack of capacity itself, in interaction with the lack of clear criteria for the prioritisation of cases in the event of backlogs in enforcement, still demotivates courts to apply NCSMs more widely. A uniform, strategic approach to improving the cooperation of the Probation Service and the DECS on a local level is still missing. During the first six-year period of operation, the ”Probation Service” in Serbia was a part of the Department for the Treatment and Enforcement of Non-Custodial Sanctions. Actually, the Department for the Enforcement of Non-Custodial Sanctions and Measures was established under amendment to the Rulebook on Internal Organisation and Job Classification at DECS only in 2021. The change in the institutional and organisational status of managing the enforcement of non-custodial sanctions and measures was also accompanied by significant improvement of the administrative capacities in 2019- 2020, after many years of stagnation caused primarily by the decision of the Government of RS to significantly restrict additional employment in the public sector through financial consolidation measures. Nevertheless, the existing and planned enhancement of the administrative capacities designed without previously conducting functional analysis, i.e. mapping jobs and business processes, has led to a situation where the probation officers still suffer a massive burden with the administrative and technical jobs. The less favourable business-and-legal status of the probation officers compared to the treatment officers has a demotivating effect on experienced experts in the treatment service, as well as on young professionals choosing this profession. In the observed period, progress was achieved with regard to the technical capacities of the Probation Service, through the procurement of an additional number of electronic monitoring devices and vehicles, and through the establishment of software for recording persons deprived of liberty (SAPA), which created a precondition for the more efficient keeping, processing and exchanging of information within the Probation Service. The normative framework regulating the actions of probation officers supervising the use of obligations whose performance conditions the deferral of criminal prosecution referred to in Article 283 of the CPC is inadequate and incomplete, which results in the ambiguous differentiation of competences with the prosecutor’s office and the inadequate supervision of enforcement. In the observed period, the Probation Service did not keep records of the cases in this segment of competence, and probation officers were mainly of the opinion that the Probation Service should not perform the supervision of the obligations referred to in Article 283 of the CPC, or at least of the most prevalent one, the payment of funds for humanitarian purposes. Although it was increasing, the wider use of the measure of prohibiting leaving one’s dwelling was slowed again in the 2016-2019 period by the lack of adequate infrastructure and administrative capacities for its enforcement. After those issues had been overcome to a great extent during 2019 and 2020, an abrupt increase in determining this measure was perceived. However, in practice, there are still a series of problems related to the lack of adequate previous verification of the fulfilment of the technical requirements for determining such a measure, as well as its determination to persons who are multiple returnees even in the commission of serious criminal offences, because of which probation officers point to their own lack of safety when placing an electronic monitoring device or during control visits. Besides, the probation officers often point out the impossibility of establishing effective control of the enforcement of this measure in situations where it is adjudicated without electronic surveillance and/or with the additional prohibition of visits and communications. Due to an inadequate and incomplete normative framework and years of problems with the infrastructure and administrative capacities of the Probation Service, the use of house arrest in the premises where the defendant lives has not been adequately realised and has resulted in numerous problems in practice, including lack of effective control, lack of treatment of convicts and the impossibility of changing the enforcement modality into a custodial one in situations where a person avoids the start of enforcement, does not comply with the enforcement programme, consumes illegal substances or becomes violent, including the commission of a new crime. Despite numerous benefits for the perpetrator, the system for the enforcement of criminal sanctions and for society as a whole, a negative tendency in imposing the community service sanction has been noticeable starting from 2017. The prevalence of this sanction among appellates is extremely uneven, which is directly related to the preconditions for the enforcement of this sanction, since almost 70% of the agreements signed are in the area of AP Vojvodina. The absence of information on the capacities of the Probation Service or the lack of capacity itself, in interaction with the lack of clear criteria for the prioritisation of cases in the event of backlogs in enforcement, still demotivates courts to apply NCSMs more widely. The sanction is predominantly enforced in the area of utility activities and in welfare institutions. An inadequate level of awareness (of both potential employers and the general public) is still prevalent concerning the capacities and importance of this sanction, as well as the problems with the oversight of enforcement of the sanction, i.e. avoidance and sanctioning of possible abuse. Suspended sentences with protective supervision were imposed only sporadically in the observed period, and since 2017, it has shown an increasing tendency caused by the growing imposition of this measure in the area of the Novi Sad appellate primarily, and partially also the Niš appellate. The absence of standardised and sustainable mechanisms of cooperation with institutions on the level of local selfgovernments makes the application of measures imposed within the protective supervision difficult.The imposition of measures accompanying release on parole has not seen a rapid growth in the use of release on parole, so with the exception of reporting to the authority competent for the enforcement of protective supervision at times determined by that authority and timely reporting any change of the place of residence, address or job, other things occur only sporadically. Finding an adequate job is still difficult due to the inactivity of the National Employment Service and the prejudice of potential employers, along with the lack of retraining. Cooperation and the delimitation of the competencies of probation officers and police officers in the supervision of certain measures are still not adequate and/or clear, whereas the organisation and capacities of the healthcare and welfare systems make inclusion in counselling programmes and control of refraining from alcohol and drug use more difficult. The newly established system for the imposition and enforcement of NCSMs is undoubtedly a relevant but still insufficient response to the need for disburdening the system of the enforcement of criminal sanctions and the replacement of short-term imprisonment sentences with alternative sanctions, as well as with regard to the diversification of criminal procedures and the improvement of reintegration and the reduction of relapses using measures accompanying release on parole. The impact of the implementation of relevant legal provisions regulating the imposition and enforcement of NCSMs, in the area of efficiency, is significantly reduced due to the fact that no adequate assessment of the financial effects of the law was made when adopting new laws, which reflected directly on the pace of establishment and capacity of the Probation Service. All further legislative amendments would require the precise mapping of additional jobs and changes in the business processes, as well as an accurate assessment of the expected change in the projected period, concerning the required enhancement of administrative and technical capacities. Based on the above results, it can be concluded that the most obvious effects of the use of NCSMs have been achieved through a decrease in the share of short-term sanctions in the total amount of imprisonment sentences, whereas the worst results have been in the area of the sensibilisation of the holders of judiciary functions for their pronouncing, as well as of the local community and general public concerning the benefits entailed by the use of NCSMs. Drafting the necessary amendments to the normative framework, which would be preceded by thorough assessment and mapping the existing and planned jobs, business processes, and administrative and technical capacities necessary for the application of new legislative solutions, with an accurate assessment of the financial effects of such amendments, is the fundamental precondition for ensuring the sustainability of the NCSM system.

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