THE ALTERNATIVE SANCTIONS SYSTEMS IN SERBIA AND THE NETHERLANDS: COMPARATIVE ANALYSIS WITH EXAMPLES FROM CASE LAW

Alternative sanctions are a deviation from the traditional system of imprisonment and their advantage certainly lies in a more humane and less repressive treatment of convicted persons. Alternative sanctions need to be present in the criminal sanctions system of every country in order to make this system more effective, primarily having in mind the goals of special prevention. This paper aims to present the alternative sanctions systems in Serbia and the Netherlands, respectively, with reference to case law examples, as well as to perform a comparative analysis of the two systems and indicate their advantages and disadvantages, as well as methods of their improvement.

Administrative Punishments: Theoretical and Legal Characteristics and Some Problems of Their Infliction

The paper examines some aspects of theoretical views on administrative punishment. The author analyzes the concept of administrative punishment as a measure of responsibility for an administrative offense, its essence and objectives. The study highlights a number of topical problems in the field of legal regulation of the system of administrative punishments that cause difficulties in the correct choice and appointment of administrative punishments. Attention is drawn to the lack of a unified approach for the legislator to establish a system of administrative penalties in terms of their alternative or non-alternative nature. It is shown that some sanctions are incompatible with the nature of the offense; there is a significant gap between the lower and upper limits of penalties in alternative sanctions, a significant difference exists in the sanctions applied to different subjects of the same offense. As a result, the commission of a more socially dangerous act in practice entails infliction of a less severe punishment, which does not meet the goals of prevention. It is noted that in some cases, when deciding on the infliction of an administrative penalty, jurisdictional authorities do not take into account mitigating or aggravating circumstances. Some proposals are made to improve the current legislation on administrative offenses. In particular, the author suggests that it is necessary to correlate all administrative offenses with each other according to the degree of public danger and, on this basis, introduce a system of punishment for administrative offences. It is also proposed to toughen the liability in relation to individuals, since the amount of the fine in relation to individuals and legal entities in some cases differs 50 times. At the same time, the author substantiates the necessity of involving the population in the development of legislative initiatives in this area.

Pidana Kerja Sosial, Tokyo Rules, serta Tantangannya di Masa Mendatang

Community service order is one of the alternative sanctions from short-term imprisonment and light fines as regulated in Article 65, Article 82, and Article 85 of the Draft of Indonesia Criminal Code on the September 2019 (RUU KUHP). Community service order is expected to be the one solution for the overcrowded state of Correctional Institutions in Indonesia due to the large number of articles with imprisonment. Community service order as a new criminal sanction in the future requires further arrangements that can support its implementation in the future and it is possible that several challenges arise in its implementation. The contents of further regulations related to community service order in this research are explored through general guidelines in the international law, namely the Tokyo Rules (UN General Assembly Resolution Number 45/110). This research uses qualitative research with normative juridical research methods in the form of analytical descriptive. The result of this study is twenty-two provisions in the Tokyo Rules can be used as a guide in determining the contents of further regulations related community service order. In addition, the factors can become challenges must be carefully considered by legal policy makers so that they are minimized in the implementation of community service order in the future. Pidana kerja sosial adalah salah satu sanksi alternatif dari pidana penjara jangka waktu pendek maupun sanksi pidana denda ringan yang diatur dalam Pasal 65, Pasal 82, dan Pasal 85 Rancangan Undang-Undang tentang Kitab Undang-Undang Hukum Pidana September 2019 (RUU KUHP). Pidana kerja sosial diharapkan menjadi salah satu solusi dari keadaan overcrowded Lembaga Pemasyarakatan di Indonesia akibat banyaknya pasal dengan sanksi pidana penjara. Pidana kerja sosial sebagai sanksi pidana baru di masa mendatang membutuhkan pengaturan lebih lanjut yang dapat mendukung implementasinya di masa mendatang dan dimungkinkan muncul beberapa tantangan dalam implementasinya. Isi dalam pengaturan lebih lanjut terkait pidana kerja sosial dalam penelitian ini dapat digali melalui pedoman umum dalam dunia internasional yakni Tokyo Rules (Resolusi Majelis Umum PBB Nomor 45/110). Penelitian ini menggunakan penelitian kualitatif dengan metode penelitian yuridis normatif berbentuk deksriptif analitis. Hasil dari penelitian ini adalah adanya dua puluh dua ketentuan dalam Tokyo Rules yang dapat menjadi panduan dalam menentukan isi pengaturan lebih lanjut terkait pidana kerja sosial. Selain itu, faktor-faktor yang dapat menjadi tantangan harus dipikirkan secara matang oleh pembuat kebijakan hukum agar terminimalisir dalam pelaksanaan pidana kerja sosial di masa mendatang.

THE ALTERNATIVE SANCTIONS FOR FINES IN POLAND AFTER 2015

The subject of the article is the analysis of the model of substitute imprisonment for a fine adopted after the substantive amendment of the criminal executive law that entered into force in 2015. In the opinion of the Authors, the legislative changes at that time involuntarily contributed to a radical increase in adjudicated substitute penalties and, consequently, the costs of functioning of the justice system. The article presents also preliminary recommendations aimed at changing this state.

Social inequality in alternative sanctions: A register data study on all adolescent drug offenders in Norway 2005–2015

The penal repertoire for young offenders in Europe encompasses an increasing variety of alternative sanctions. Research indicates that the availability and implementation of these sanctions vary within jurisdictions, raising issues of unequal treatment for equal offences. Among possible factors associated with intra-jurisdictional disparities in alternative sentencing outcomes is the socioeconomic status of young offenders. This study investigates the social profile of diverted youth, thereby addressing social inequalities in alternative sanctioning. Register data on all 15- to 17-year olds charged with minor drug offences in Norway between 2005 and 2015 ( N = 3209) were compared to a randomly drawn sample of non-offenders ( N = 69,201). Offenders who were diverted from a fine to a conditional waiver of prosecution, either with or without rehabilitative measures, were classified with an alternative sanction. Socioeconomic status was measured by an indicator combining register data on household income and parental education. Probit regressions with sample selection were used to identify social gradients in alternative sanctioning. By extensive register linkages, we were able to control for a range of well-known confounders such as gender, immigrant status, family composition, parental crime, and geographical centrality. We found that the probability of receiving a conditional waiver of prosecution was around 5% points higher for youth from a medium-high socioeconomic status background and 8% points higher for youth from a high socioeconomic status background compared with their low socioeconomic status counterparts. The positive social gradient pertained to sanctioning with rehabilitative elements and not to minimal interventions. Social inequality in desistance-oriented sanctions, which may consolidate pre-existing inequalities in criminal charges, is likely influenced by the resources parents have at their disposal to get involved in their children’s legal processes.

KAJIAN PIDANA KERJA SOSIAL DITINJAU DARI SEGI SOSIOLOGI HUKUM

<p>Abstract<br />In the application of Criminal Law in Indonesia, it uses a model of imprisonment. Imprisonment penalties are often used because they are considered effective in providing a deterrent effect on criminals. However, along with the development of the times, imprisonment sanctions are considered not to prioritize the human side concerning the right to freedom for every human being. In the Draft Draft Criminal Code 2017 alternative sanctions were prepared. One of the alternative sanctions that will be discussed by the author is social work criminal sanctions. Social work criminal sanctions are considered in accordance with current criteria which prioritize the human side and provide direct moral learning to criminals. So that the author here aims to discuss the application of social work criminal sanctions in Indonesia from a criminal law perspective and the application of social work sanctions from a sociological legal perspective.<br /><br /></p><p>Abstrak<br />Dalam penerapannya Hukum Pidana di Indonesia menggunakan model penjatuhan sanksi pidana penjara. Sanksi pidana penjara sering kali digunakan karena dinilai efektif dalam memberikan efek jera bagi pelaku kejahatan. Namun seiring dengan perkembangan zaman sanksi pidana penjara dinilai tidak mengedepankan sisi kemanusian yang menyangkut hak merdeka bagi setiap manusia. Dalam Draft RUU KUHP 2017 disusunlah alternatif sanksi. Salah satu alternatif sanksi yang akan dibahas oleh penulis adalah sanksi pidana kerja sosial. Sanksi pidana kerja sosial dinilai sesuai dengan kriteria zaman saat ini yang lebih mengedepankan sisi kemanusiaan dan memberikan pembelajaran moral secara langsung kepada pelaku kejahatan. Sehingga penulis disini bermaksud untuk membahas penerapan sanksi pidana kerja sosial di Indonesia dari perspektif hukum pidana dan penerapan sanksi kerja sosial dari perspektif sosiologi hukum.<br /><br /></p>

Problems with the execution of house arrest

In the Republic of Serbia, out of all alternative sanctions, the courts have most often issued house arrest, in addition to a suspended sentence. Besides a review of the legislation governing the subject matter, the author attempts to point out the problems that the courts and trust agents encounter in practice when executing the sanction of house arrest. Inadequate application of the regulations governing the execution of house arrest, along with technical and personnel shortcomings faced by the Trust Agency of the Administration for the Execution of Penitentiary Sanctions in the Republic of Serbia, may lead to a partial or temporary inability to execute the sentence. By using the available statistics on imposed criminal sanctions, examining the opinions of the judges and the views of the trust agents, and evaluating data from other research conducted in this area, the author attempts to answer the question of whether and how the existing problems with house arrest in Serbia could be overcome. Eliminating the formal and technical deficiencies in the execution should demonstrate the extent to which the imposition of house arrest achieves the aims of general and special preventive measures, while bearing in mind that, in certain situations in practice, the sentence of house arrest remains unexecuted.

The feasibility of applying alternative sanctions considering the experiences presented in (The 18th Arab Conference of Heads of Punitive and Correctional Institutions)

This study aims to analyze Arab experience in applying alternative punishments and to compare between them regarding the types that are applied, the reasons for applying them, in addition to the economic, correctional and rehabilitation effectiveness of their application. This is done through a content analysis of fourteen Arab experiences that were presented at the 18th Arab Conference of Heads of Punitive and Correctional Institutions that was held to arrive at recommendations that help disseminate this experience and improve it according to its intended effectiveness. This descriptive study used the content analysis method and the comparative method through an analysis matrix that contained the following variables: Reasons for implementation, types of applied alternative punishments, and effectiveness of their application. The most prominent results of the study indicated that only one-third of Arab countries apply alternative punishments, whose types are limited. They also indicated that the economic, correctional and rehabilitation effectiveness of their application differs according to the types of punishments applied and according to each country. The study concluded that alternative punishments must start to be applied in Arab countries – especially those who have not yet applied them. This must be done through working on legislation specific to them, starting to implement it, and spreading awareness of it. This is in addition to approving procedural mechanisms to apply them, establishing a separate agency for them, preparing and supporting correctional institutions that are related to their application, involving social establishments, the importance of encouraging evaluative studies on the different punishments, designing awareness programs and cultural programs to strengthen awareness of alternative punishments, and creating a database linked to penal studies and their correctional effects.