Execution of non-custodial sanctions in Serbian law - critical analysis

Abstract

In this paper author analyzes legal solutions in execution of alternative sanctions in Serbian penal law. He primarly focused Draft Probation Code, represented to the public in the mid-May 2013, especially with regard to their compliance with recommendations of Standard Minimum Rules for Non-Custodial Measures ('Tokyo Rules') and Council of Europe Rules & Recommendations on Probation. They are also analyzed from the comparative aspect of legal solutions in some countries, in the first place ex-socialist countries in the region. The author started with the assumption that this analysis could provide a basis for assessing whether non-custodial treatment, normatively regulated in the way it was done in the Draft Probation Code, could help to resolve one of the key problems of the penal system in Serbia: hypertrophy in punishment of deprivation of liberty and in this regard - overcrowding of our penal institutions. After critical analysis of principle (starting with the observation that the title 'Code of Probation in execution of non-custodial sanctions and measures' is inadequate) as well as concrete solutions selected from creators of the Draft Probation Code, author tried to answer on two key questions: first- do we need one more special code in the field of penal sanctions execution law? Considering the solutions from the Draft Probation Code, and especially the organizational structure (Probation Service is conceived as part of the Administration for execution of penal sanctions and within the 'organizational unit for treatment and alternative sanctions), scope of competence of the probation officers, lack of criteria for their election, lack of mechanisms for work control and a range of other solutions - the answer to the first question is negative. In other words, there are no real reasons to enact a special code on probation. The way the matter is defined in the Draft Probation Code, it would be better if it was a part of general Penal Sanctions Execution Code. In that case, the further fragmentation of Penal Sanctions Execution Law in Serbia, that has received alarming proportions, would be prevented. The second question is: is it possible to expect that norms of Draft Probation Code contribute to a wider use of non-custodial measures and sanctions and consequently to provide a more effective reaction to crime? Unfortunately, the answer to this question is also negative. It is hard to imagine that the Draft Probation Code (in the way it is proposed) if enacted, would contribute to expected innovations in this scientific field.