1. Purpose of Punishment, Types of Punishment and Requirements for their Imposition
Forty-year Prison Term
(1) A forty-year prison term may be prescribed for the most serious criminal offences provided that it is not prescribed as the only punishment for a specific criminal offence.
(2) A forty-year prison term may not be imposed on the following :
1) a person who at the time of commission of a criminal offence is not 21 ;
2) a person who at the time of commission of a criminal offence is of significantly reduced mental capacity (Art.14, para. 2) ;
3) a person who attempted to commit a criminal offence.
(1) A prison term may not be shorter than thirty days or longer than twenty years.
(2) The prison term referred to in para. 1 hereof shall be imposed in full years and months, and terms up to six months shall be imposed also in days.
(1) A prisoner who has served two thirds or, exceptionally, has served a half of his prison term or his forty year prison term may be released on parole provided that during his prison term he has improved his behaviour to an extent that it can be reasonably expected that his behaviour outside of prison will be good and, in particular, that he will not reoffend during his service of the remainder of the punishment. In deciding whether a prisoner meets the requirements for parole , due consideration shall be given to his conduct during the service in prison, his fulfillment of work obligations, which is assessed with respect to his capacity, as well as to other circumstances that indicate that the purpose of the punishment has been achieved.
(2) The decision granting a prisoner parole may order that he fulfills an obligation set by law.
(3) In the case referred to in para. 1 hereof, the prisoner shall be considered to have served his punishment provided that the parole is not revoked.
1. Purpose of Punishment, Types of Punishment and Requirements for their Imposition
(1) A fine may not be set at below two hundred euros. A fine may not exceed twenty thousand euros, while for criminal offences committed out of greed it may not exceed one hundred thousand euros.
(2) When imposed as the principal punishment, a fine shall be set as follows :
1) up to two thousand euros for criminal offences punishable by a prison term up
to three months ;
2) from four hundred to four thousand euros for criminal offences punishable by
a prison term up to six months ;
3) from six hundred to eight thousand euros for criminal offences punishable by
a prison term up to one year ;
4) from eight hundred to sixteen thousand euros for criminal offences punishable
by a prison term up to two years ;
5) minimum one thousand two hundred euros for criminal offences punishable
by a prison term up to four years ;
6) minimum one thousand two hundred euros for criminal offences which carry
a fine as the only punishment.
(3) For criminal offences committed out of greed the fine as an accessory punishment may be imposed even when it is not prescribed by law, or when law prescribes that a perpetrator shall be punished by either a prison term or a fine, and the court imposes a prison term as the principal sentence.
(4) Where the court imposes a fine as the principal punishment and additionally imposes a fine as an accessory punishment, a single fine shall be imposed under the rules laid down in Art.48 hereof.
(5) The court ruling shall specify the term of payment which may not be shorter than fifteen or longer than three months. Where so justified, the court may allow the convicted person to pay the fine in installments, provided that the payment deadline is not longer than within one year.
(6) Where a convicted person does not pay a fine within the deadline set thereof, the court shall replace the fine by a prison term by substituting each twenty-five euro amount in his fine by one day of prison term, provided that the prison term does not exceed six moths, and where a fine exceeding nine thousand euros is imposed, the prison term may not be longer than one year.
(7) Upon prior consent of the convicted person, an outstanding fine not exceeding two thousand euros may be substituted by community work and not by a prison term. Each twenty-five euro amount of his fine shall be substituted by eight hours of community work, provided that the community work does not exceed three hundred and sixty hours.
(8) Where the convicted person pays only part of the fine, the court shall substitute the remainder by a prison term on a pro rata basis, and where the convicted person pays the remainder of the fine, his service of the prison term shall be suspended.
(9) The fine may not be enforced in the event of death of the convicted person.
Amount of Daily Fine
(1) In the cases when it is possible to establish the perpetrator’s assets and liabilities, the court may pronounce a fine in daily amounts.
(2) The number of daily fines may not be less than ten or more than three hundred and sixty. The number of daily fines to be imposed for the criminal offence committed shall be set in accordance with the general rules on fixing of punishment as laid down in Art.42 hereof.
(3) The amount of daily fine shall be determined by dividing the difference between the perpetrator’s assets and liabilities in the previous calendar year by the number of days in a year, whereby the daily fine must be more than five and less than one thousand euros.
(4) The total amount of fine shall be calculated by the court by multiplying the number of daily fines by the amount of the daily fine.
(5) In determining the value of daily fines the court may request data from banks and other financial institutions, state authorities and legal entities which shall communicate the data requested and which may not invoke protection of business or other secrets.
(6) Where it is not possible to obtain reliable data on perpetrator’s assets and liabilities, or where the perpetrator does not earn any income but is the owner of property or holder of property rights, the court shall use the available data and determine the amount of daily fine at its own discretion.
(7) The provisions of Art. 39, paras 3 through 9 hereof shall also apply when a fine is imposed in compliance with the above provisions.
CONFISCATION OF PECUNIARY GAIN
Requirements for Confiscation of Pecuniary Gain
(1) Money, property of value and any other pecuniary gain originating from a criminal offence shall be confiscated from the perpetrator, and where such confiscation is not possible, the perpetrator shall pay the equivalent amount in money.
(2) Also liable to confiscation from the perpetrator shall be pecuniary gain for which there is reasonable suspicion to believe that it originates from criminal activity unless the perpetrator makes it probable to believe that its origin is legitimate (extended confiscation).
(3) The confiscation of pecuniary gain referred to in para. 2 above may apply if the perpetrator has been convicted under a final judgment of any of the following :
1) any of the criminal offences committed through a criminal organization
2) any of the following criminal offences :
- crime against humanity and other values protected under international law and committed out of greed ;
- money laundering ;
- unauthorized production, possession and distribution of narcotics ;
- criminal offences against payment operations and economic activity and criminal offences against official duty, which were committed out of greed, and which carry eight year prison term or a more severe punishment.
(4) Pecuniary gain shall be liable to confiscation if it was obtained in the period before and/or after the commission of any of the criminal offences under para. 3 hereof until the finality of judgment, and if the court establishes that the time when the pecuniary gain was obtained and other circumstances of the case in question justify the confiscation of the pecuniary gain.
(5) Also liable to confiscation shall be pecuniary gain originating from a criminal offence where it has been transferred to other persons free of charge or where such persons knew, could have known, or were obliged to know that the pecuniary gain originated from a criminal offence.
(6) Where pecuniary gain was obtained for another person, such gain shall also be liable to confiscation.
Protection of Injured Party
(1) Where the injured party has been awarded his claim for damages in criminal proceedings, the court shall order the confiscation of pecuniary gain only insofar as such pecuniary gain exceeds the adjudicated claim of the injured party.
(2) The injured party which has been referred by the criminal court to bringing his claim for damages in a civil action may request to be reimbursed from confiscated pecuniary gain, provided that he brings a civil claim within six months from the final decision directing him to bring a civil action and under the further condition that he claims reimbursement from the confiscated pecuniary gain within three months from the final decision awarding his claim.
(3) Any injured party who has not brought his claim for damages in the course of the criminal proceedings may request to be reimbursed from confiscated pecuniary gain provided that he instituted a civil action for the purpose of establishing his claim within three months of the date he learnt of the judgment ordering confiscation of pecuniary gain, but not later than within three years of the date of final decision ordering confiscation of pecuniary gain and provided further that he requests, within three months of the date of decision awarding his claim for damages, to be reimbursed from the confiscated pecuniary gain.
CONFISCATION OF PECUNIARY GAIN
(1) No person may retain pecuniary gains originating from an unlawful act which is established by law as a criminal offence.
(2) The pecuniary gain referred to in para. 1 above shall be liable to confiscation under the conditions laid down by the present Code and a court decision.
MEASURES FOR ENSURING THE PRESENCE OF THE ACCUSED PERSON AND FOR A PEACEFUL CONDUCTING OF THE CRIMINAL PROCEDURE
7. TREATMENT OF DETAINEES
Respect of personality and dignity of detainees and their Accommodation
(1) Personality and dignity of the detainee shall not be offended in the course of detention.
(2) The only restrictions that may be imposed against detainees shall be only the ones needed to prevent their flight, instigation of third persons to destroy, conceal, alter and fabricate evidence or traces of a criminal offence or to prevent direct or indirect contacts of detainees for the purpose of influencing witnesses, accomplices and accessories by virtue of concealment.
(3) Persons of different sexes shall not be detained in the same room. As a rule, detainees against whom reasonable suspicion exists that they have participated in the same criminal offence shall not be accommodated in the same room, neither shall detainees be accommodated in the same room as persons who are serving a prison sentence. If possible, detainees against whom a reasonable suspicion exists that they are recidivist shall not be accommodated in the same room with other detainees on whom they might have an adverse influence.
Rights of detainees
(1) Detainees shall be entitled to at least eight hours of an uninterrupted night rest for every 24-hour period.
(2) At least two hours of movement in the open air within prison grounds daily shall be provided to detainees.
(3) Detainees shall be entitled to wear their own clothes, to use their own bedding or to obtain and use at their own expense food, books, professional periodicals, newspapers, stationary and drawing supplies and other things related to their daily needs, except those suitable for infliction of injures, impairment of health or preparation of flight.
(4) During the investigation, the investigating judge may, by virtue of office or upon the motion of the State Prosecutor issue a ruling temporarily suspending or limiting the detainee's right to procure and use newspapers if this could be detrimental to the conduct of proceedings. An appeal against the ruling of the investigative judge shall be allowed to the Panel referred to in Article 24, paragraph 7 of the present Code.
(5) Detainees may be obliged to maintain in clean condition the premises they are detained in. If required so by the detainees, the investigating judge or the Chair of the Panel with the consent of prison administration may allow the detainees to work within prison grounds in accordance with their mental and physical capacity, providing that this is not detrimental for the course of the procedure. For such a work the detainee is entitled to a fee ordered by the administrator of the prison.
ENFORCEMENT OF DECISIONS
Enforcement of Decisions with Respect to the Costs of Criminal Proceedings, Claims under Property Law, and Seizure of Items and Proceeds of Crime
(1) The execution of judgments with respect to the costs of criminal proceedings, seizure of proceeds of crime, and claims under the property law shall be vested in the Competent Court in compliance with the provisions of the law on the enforcement procedure.
(2) The costs of criminal proceedings shall be compulsory charged by virtue of office and shall be credited to a separate budget allotment for the work of courts. The costs of compulsory charge shall previously be paid from the separate budget allotment for the work of courts.
(3) If the security measure of seizure of an item has been pronounced by a judgment, the court which has rendered the judgment in the first instance shall decide whether such items will be sold pursuant to the provisions of law on the enforcement procedure, or given to a museum of criminology or other institution, or destroyed. The proceeds obtained from such a sale shall be credited to the separate budget allotment for the work of courts.
(4) The provision of Paragraph 3 of this Article shall be applied accordingly also where there is a decision made on seizure of an object pursuant to Article 477 of the present Code.
(5) In addition to a repeating of criminal proceedings or a request for the protection of legality, a final judgment on seizure of items may be amended in civil proceedings if a dispute arises regarding the ownership of the items seized.
COURSE OF THE PROCEEDINGS
V THE MAIN HEARING AND JUDGMENT
3. PRONOUNCEMENT OF JUDGMENT
Detention after announcement of the Judgment
(1) When the Court imposes a punishment of imprisonment for a term of less than five years, the Panel shall order detention to the defendant who is at liberty if the reasons referred to in Article 175, Paragraph 1, Items 1 and 3 of the present Code exist, and it shall do the same for the defendant who was imposed an imprisonment sentence of five years or a more serious one by a first instance court if grounds exist referred to in Article 175, paragraph 1, item 4. The Panel shall vacate detention of the defendant who is in detention if the reasons for which detention was ordered do not exist any longer.
(2) The Panel shall always vacate detention and order that the defendant be released if s/he is acquitted, or the charge is rejected, or if s/he is pronounced guilty but released from punishment or if s/he is sentenced only to a fine, or community service or judicial admonition or suspended sentence is imposed or s/he has already served a sentence due to inclusion of the detention or other deprivation of liberty or the charge has been dismissed (Article 367), save in the case of lack of the subject-matter jurisdiction.
(3) After the announcement of a judgment and until it becomes final, the detention shall be ordered or vacated pursuant to the provision of paragraph 1 of this Article. The decision thereon shall be made by the Panel of the first instance Court (Article 24, Paragraph 7).
(4) In the cases referred to in Paragraphs 1 and 3 of this Article, before rendering a ruling by which a detention is ordered or vacated, the opinion of the State Prosecutor shall be obtained if the proceedings are conducted upon his/her request.
(5) If the defendant is already in detention and the Panel establishes that the grounds for which detention was ordered still exist, or that the grounds referred to in paragraph 1 of this Article exist, it shall render a separate ruling on extension of detention. The Panel shall render the separate ruling when it is necessary to order or vacate detention, as well. An appeal against the ruling does not stay its execution, and the Court shall decide on the appeal within a term of three days.
(6) Detention ordered or extended pursuant to the paragraphs 1 to 5 of this Article may last until a judgment becomes final, but at the longest until the term of the sentence imposed by the judgment at first instance expires.
(7) Upon the request of the defendant, who is in detention after being sentenced to imprisonment, the Chair of the Panel may render a ruling on his/her transfer to the penitentiary institution even before the judgment becomes final.
PROCEEDINGS FOR IMPLEMENTATION OF SECURITY MEASURES, FORFEITURE OF PROPERTY GAIN,
CONSFISCATION OF PROPERTY WHOSE LEGAL ORIGIN IS NOT PROVED, AND REVOCATION OF A SUSPENDED SENTENCE
2. PROCEEDINGS FOR THE CONFISCATION OF PROPERTY GAIN
General Provisions on Confiscation of Property Gain
(1) Property gain obtained as a result of the commission of a criminal offence shall be established as such in the investigatory proceedings, preliminary proceedings and at the trial by virtue of an office.
(2) In the course of the investigatory proceedings, preliminary proceedings and at the trial, the Court and other authorities shall obtain evidence and investigate circumstances that are relevant to the establishment of property gain.
(3) If the injured party submits a property law claim regarding the recovery of items acquired in consequence of the commission of a criminal offence or regarding the amount which corresponds to the value of the items, the property gain shall only be established for the part which exceeds the property law claim.
Confiscation of Property Gain from Third Persons who have been Transferred the Property Gain
(1) When the confiscation of property gain obtained as result of the commission of a criminal offence from other persons is being considered, The person to whom the property gain was transferred or the person for whom it was obtained, or the representative of the legal entity shall be summoned for interrogation in the pre-trial proceedings and at the trial. The summons shall contain an admonition that the proceedings will be held even in his/her absence.
(2) The representative of the legal entity shall be heard at the trial after the interrogation of the accused person. The court shall proceed in the same manner regarding other person referred to in paragraph 1 of this Article, unless s/he is summoned as a witness.
(3) The person to whom the property gain was transferred or the person for whom it was obtained or the representative of the legal entity is entitled to propose presentation of evidence concerning the establishment of the property gain and, upon the authorization of the Chair of the Panel, to pose questions to the accused person, witnesses and expert witnesses.
(4) Exclusion of the public from the trial shall not relate to the person to whom the property gain was transferred or for whom it was obtained or the representative of the legal entity.
(5) If the Court establishes that the confiscation of property gain comes into consideration while the trial is in progress, it shall recess the trial and summon the person to whom the property gain was transferred or for whom it was obtained, or the representative of the legal entity.
Determining the Amount of property gain by Free Evaluation
The amount of property gain shall be determined at the discretion of the Court if its assessment entails disproportionate difficulties or a significant delay in the proceedings.
Imposing Provisional security measures
When the conditions for the confiscation of property gain are met,
the Court shall, by virtue of an office or upon the proposal of the State Prosecutor, impose provisional security measures, pursuant to the provisions governing the enforcement proceedings. In such a case, the provisions of Article 243 of the present Code shall accordingly apply.
Imposing Confiscation of property gain
(1) Court may order the confiscation of property gain by a conviction, by a penal order issued without trial, by a ruling on a judicial admonition or by a ruling on the application of a corrective measure, as well as by a ruling on the imposition of a security measure of compulsory psychiatric treatment and confinement in a medical institution, or compulsory psychiatric treatment out of the institution.
(2) In the pronouncement of the judgement or the ruling the Court shall state which valuable item, money amount, or other property gain is to be confiscated.
(3) A certified copy of the judgement or the ruling shall also be delivered to the person to whom the property gain was transferred or for whom it was obtained, as well as to the representative of the legal entity, provided that the Court orders the confiscation of property gain from such a person or a legal entity.
Request for retrial regarding the Confiscation of Property Gain
The person referred to in Article 479 of the present Code may submit a request for retrial regarding the decision on the confiscation of property gain.
Appropriate application of provisions regulating an appeal
The provisions of Article 383, Paragraphs 2 and 3 and Articles 391 and 395 of the present Code shall be applied accordingly in regard to an appeal filed against the decision on the confiscation of property gain.
Appropriate application of other provisions of the present Code
Unless otherwise provided by the provisions of this Chapter, in regard with the implementation of security measures or the confiscation of property gain, other provisions of the present Code shall be applied accordingly.
3. CONFISCATION OF PROPERTY WHOSE LEGAL ORIGIN HAS NOT BEEN PROVED
Request for Confiscation of Property and Contents of Request
(1) After the finality of the judgement finding the accused person guilty of the criminal offence for which the Criminal Code prescribes the possibility of extended confiscation of property from the convicted person, his/her legal successor or the person to whom the convicted person has transferred the property and who cannot prove the legality of its origin, the State Prosecutor shall, at the latest within one year, submit the request for the confiscation of the property of the convicted person, his/her legal successor or a person to whom the convicted person has transferred the property for which there is no evidence on the legality of its origin.
(2) The request from paragraph 1 of this Article shall contain the data on the convicted person, his/her legal successor or the person to whom the convicted person has transferred the property, indication of property to be confiscated, evidence on the property owned by the convicted person, his/her legal successor or the person to whom the property has been transferred, and on their legal proceeds, as well as circumstances indicating the obvious discrepancy between the total property and the legal proceeds of the convicted person, his/her legal successor and the person to whom the convicted person has transferred the property.
(3) The request from paragraph 1 of this Article shall be served without delay to the convicted person, his/her legal successor or the person to whom the convicted person has transferred the property, along with a warning stating that s/he shall prove the legal origin of the property at the Panel session referred to in Article 24, paragraph 7 of the present Code, as well as that the property will be confiscated if its legal origin has not been proved.
Deciding on the Request for the Confiscation of Property
(1) Pursuant to Article 314 of the present Code, the Panel referred to in Article 24, paragraph 7 of the present Code shall decide on the request referred to in Article 486 of the present Code at the session from which the public may be excluded.
(2) The following shall be invited to the Panel session: State Prosecutor, convicted person, his/her legal successor or a person to whom the convicted person has transferred his/her property, and his/her proxy.
(3) If the convicted person, his/her legal successor or the person to whom the convicted person has transferred his/her property does not prove by plausible documents or in absence of plausible documents, in some other manner, the legal origin of the property, the Panel shall issue a ruling on the confiscation of the property.
(4) If the convicted person, his/her legal successor or the person to whom the convicted person has transferred his/her property proves by plausible documents or in some other manner the legality of the property origin or of the part of property, the Panel shall issue a ruling on total or partial dismissal of the request referred to in Article 486, paragraph 1 of the present Code.
(5) The panel referred to in Article 24, paragraph 7 of the present Code shall dismiss the request if it was submitted after the expiry of the deadline referred to in Article 486, paragraph 1 of the present Code.
Contents of the Request on Confiscation of Property
(1) The ruling referred to in Article 487, paragraph 3 of the present Code shall contain the data on the convicted person, his/her legal successor or the person to whom the convicted person has transferred his/her property, on the property being confiscated, and the decision on the costs of safekeeping and administration of the provisionally seized property referred to in Article 96 of the present Code. If the confiscation of the property would bring into question the sustenance of the convicted person, his/her legal successor or the person to whom the convicted person has transferred his/her property or the persons who they are legally obliged to support, the ruling shall indicate that a portion of the property is exempted from confiscation.
(2) The ruling on property confiscation shall be delivered to the convicted person, his/her legal successor or the person to whom the convicted person has transferred his/her property, his/her proxy, State Prosecutor, and the state authority which, pursuant to the law, shall administrate the confiscated property.
Appeal against the Ruling on Confiscation of Property
(1) Convicted person, his/her legal successor of the person to whom the convicted person has transferred his/her property and his/her proxy may appeal against the ruling referred to in Article 487, paragraph 3 of the present Code within eight days; the State Prosecutor may appeal against the ruling referred to in Article 487, paragraph 4 of the present Code.
(2) An immediately superior court shall decide on the appeal referred to in paragraph 1 of this Article.
(a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.
(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.
1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.
2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.
1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.
2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.