THE CONDITIONAL RELEASE OF CONVICTED PERSONS.

THE CONDITIONAL RELEASE OF CONVICTED PERSONS. 1. Introduction. By Alain BLOCH 1 and Bedri DURAKU. 2 The general basis for conditional release is to be found in the Tokyo Rules of 1990. 3 At that time the General Assembly of the UN declared its awareness of the fact that the restriction of liberty is justifiable only from the viewpoints of public safety, crime prevention, just retribution and deterrence and that the ultimate goal of the criminal justice system is the reintegration of the offender into society. The introduction in the post-trial stage of various forms of parole as a non-custodial measure to replace imprisonment, is intended to promote greater community involvement on the one hand and a sense of responsibility among offenders on the other (Annex, Art. 1.2). Implementation should try to ensure a proper balance between the rights of individual offenders, the rights of victims and the concern of society for public safety and crime prevention. In it s recommendation Rec(2003)22 on Conditional Release, the Committee of Ministers of the Council of Europe very pointedly expressed the essence of the conditional release of convicted persons: Recognising that conditional release is one of the most effective and constructive means of preventing reoffending and promoting resettlement, providing the prisoner with planned, assisted and supervised reintegration into the community; Considering that it should be used in ways that are adapted to individual circumstances and consistent with the principles of justice and fairness; Considering that the financial cost of imprisonment places a severe burden on society and that research has shown that detention often has adverse effects and fails to rehabilitate offenders; 4 Conditional release offers a humane image of society. But a properly functioning system of conditional release is also an absolute necessity for an efficient criminal justice system. Good police work is nothing without a good prosecution. A good prosecution is nothing without good sentencing. A good sentence is worth nothing without a good execution. The quality of the execution of judgments is of essential importance for the credibility and quality of the criminal justice system. 1 Alain BLOCH is an UNMIK International Judge and one of the Presiding Judges of the Conditional Release Panel. 2 Bedri DURAKU is a Kosovan civil servant and Coordinator of the Conditional Release Panel. 3 Resolution 45/110 adopted by the 68 th plenary meeting of the UN General Assembly on 14 December 1990 on Standard Minimum Rules for Non-custodial Measures. 4 Council of Europe, Committee of Ministers, Recommendation Rec(2003)22 on conditional release, adopted by the Committee of Ministers on 24 September 2003 at the 853 rd meeting of the Ministers Deputies. 1

2. A short historical background. Under the old Yugoslav law a system of conditional release already existed, similar to the present system. The idea of conditional release was thus not an alien import by an international administration. In the system in place in Kosovo as of June 1977 5, a convicted person could be released conditionally after serving half of his prison term if rehabilitation was achieved and it could be expected that the released person would behave in a proper manner if released, and particularly that he shall not commit any new criminal acts. Criteria were set forth to decide if this aim had been achieved: the convicts conduct while serving his punishment, the execution of his obligation to work taking into consideration his ability to do so and other circumstances indicating that the aim of the punishment had been achieved. In special circumstances conditional release was possible after serving one third of the punishment. The decision was taken by a Conditional Release Commission (CRC) consisting of five members coming from the Secretariat of Internal affairs, prison administration and the municipalities as well as educators. Pursuant to the UNMIK Regulation 1999/24 on the Applicable Law in Kosovo, the system remained in place once UNMIK was in charge. The Department of Justice (DOJ) was given authority to establish the CRC, which had previously been established by the Provincial Secretariat. The Director of the DOJ appointed a President of the CRC and 15 members (5 judges, international or local, the Commissioner of the Kosovo Correctional Service 6 or his delegate, the head of the KCS Legal Unit or his delegate, 3 social workers, international or local, 2 medical doctors, international or local and 3 prison directors). It was amongst them that the President chose five persons to form a review panel. In doing so he had to ensure that judges, senior KCS management, legal, probation and medical staff were represented. No prison director could participate in a panel considering cases from his or her prison. A Commissioner s Directive governing the CRC s work entered into force on 1 October 2002. 7 The decisions of the panels of the CRC were subject to review by the President of the CRC, to ensure that the decision did not violate the applicable law, the interim policy or the rules of procedure. The President could confirm the decision or return the case for reconsideration. After reconsideration, the case was referred to the Director of the DOJ, if the President still disagreed with the panel. 5 Article 9 of the Criminal Law of the Socialist Autonomous Province of Kosovo of 28 June 1977 and Articles 166 to 172 of the Law of 01 July 1977 on Execution of Penal Sanctions. 6 Hereinafter KCS. In practice professors of the Law Faculty and psychologists were also included. 7 Circular reference Justice/2002/07 entitled Conditional release policy adopted by Penal Management Division/KCS, with annexed to it the PMD/KCS Commissioner s Directive. Interim policy on conditional release for sentenced persons. This Directive was retroactively amended by circular ref. Justice/2002/09. 2

The present system was introduced by the Provisional Criminal Code of Kosovo (PCCK) and was implemented by the Law on Execution of Penal Sanctions (LEPS) that entered into force on 19 February 2005. 8 Its main change was to entrust an independent Panel of judges with the conditional release decision. 3. Legal framework. According to Article 8.1.j of the Constitutional Framework for Provisional Self- Government 9 the powers and responsibilities of the Provisional Institutions of Self- Government do not include certain reserved powers and responsibilities which were to remain in the hands of the SRSG. Exercising authority over the correctional service is one such reserved power. As of 27 April 2006 part of this reserved power was transferred to the Ministry of Justice, such as the exercise of executive oversight over the correctional service (except for emergencies in Dubrava prison) and the probation service. 10 The responsibility for the conditional release system however has not been transferred and remains up to this day 11 a reserved responsibility of the SRSG. The principle that a convicted person may be conditionally released is to be found in Article 80 of the PCCK. The decisions are taken by a panel established by the competent public entity in the field of judicial affairs in accordance with the law. This law is to be found in the Articles 128 to 132 of the Law on Execution of Penal Sanctions. 12 According to Art. 129 LEPS the Conditional Release Panel shall issue directives governing its work. Such directives were adopted on 3 June 2008. 13 An English, Albanian and Serbian version was provide to the Minister of Justice, the Director of the DOJ, the President of the Bar Association and the President of the Judges Association of Kosovo, with the request to distribute the document. Some administrative bodies received copies too. So did the Directors of all the correctional facilities, with the aim of informing the convicted persons. An e-copy of these Directives can be obtained on request from the Coordinator of the Conditional Release Panel (e-mail: Bedri.Duraku@ks-gov.net). 8 UNMIK/REG/2004/46 dated 19 November 2004. 9 UNMIK/REG/2001/9 dated 15 May 2001. 10 Annex XV, item (vii) UNMIK/REG/2006/26 dated 27 April 2006 Amending UNMIK Regulation no. 2001/19 on the Executive Branch of the Provisional Institutions of Self-Government in Kosovo. 11 20 August 2008. 12 Hereinafter LEPS. 13 Directives governing the work of the conditional release panel, UNMIK/CRP/2008/01, dated 3 June 2008, called hereinafter the Directives. 3

4. Review by an independent authority. The decision on conditional release in Kosovo is taken by an independent authority. The Conditional Release Panel is established by the competent public entity in the field of judicial affairs, presently the SRSG represented by the Director of the Department of Justice, as long as the mentioned reserved power has not been transferred. It consists of one judge and two lay judges who shall have knowledge and experience in psychology, criminology, psychiatry, pedagogy, sociology and other social sciences relating to conditional release. 14 Judges and lay judges are appointed for the duration of one year. Since they are judges, they are independent and impartial in exercising their function. 15 In principle three panels operate parallel to each other. There are thus three Presiding judges and 7 lay judges. Due to the delicate character of the decision to release a convicted person conditionally and the situation prevailing in Kosovo, the presiding judges have been international judges up to now. In the perspective of mentoring it can only be regretted that no professional local judges have been introduced in the system. The lay judges are not professional judges, but Kosovan citizens which have been appointed by the competent authority (up to now the SRSG) taking into consideration the recommendations of the Kosovo Judicial and Prosecutorial Council 16, pursuant to UNMIK Regulation no. 2001/8 on the Establishment of the KJPC. They are mostly graduated in the law or social sciences. Their input in the panel s decisions cannot be underestimated, since they put the accent on the local sensitivities, for example the importance of reconciliation. Recently the Minister of Justice and the President of the Judges Association of Kosovo had some harsh words for the way the Panels were constituted and functioned. 17 The question is what the reconfiguration will bring? 5. The procedure. Requests for conditional release are dealt with by one of the chambers of the Conditional Release Panel. 18 14 Art. 129.1 LEPS 15 Art. 9.4.6 of the Constitutional Framework for Provisional Self Government. Art. 102.4 Constitution of Kosovo. 16 Hereinafter KJPC. 17 FETAJ Visar, The release on parole of the convicts at the mercy of the internationals, Zeri, 1 October 2007. 18 Hereinafter CRP. 4

The backlog of 2005 having been absorbed, the requests are treated on a first in, first served basis. They are regrouped 10 to 15 cases per session and assigned to the chambers on a rotation basis. There are three exceptions to this rule: - in the case a presiding judge is not free, the case will be attributed to the next chamber on the roster; - a request that has been previously reviewed by a chamber, will remain with that chamber - requests by several co-defendants in a same criminal case will be handled by the same chamber even if they are not introduced simultaneously. In its work the CRP is helped by an employee, who is in charge of the coordination of the work and acts as the Panel s recorder. A request of a convicted person is dealt with by one of the chambers of the CRP within a term of maximum three months. A sufficient number of sessions are organized to guarantee the respect of this maximum term. Three steps are to be considered: the procedure before review, the review and the procedure after review. 5.1. The procedure before review Any time after arrival in prison, the convicted person may request from prison officials information on the rights, conditions and procedures relating to conditional release, and the date on which he or she becomes eligible for conditional release. 60 (sixty) days before eligibility the Prison Director gives the convicted person a written notification advising him or her of that date. The convicted person or his counsel addresses his or her request for conditional release to the Panel through the correctional facility in which he or she is serving his or her sentence. The request can be in writing or orally. The request is immediately transferred to the Panel by the correctional facility. The director of the correctional facility may also submit a motion for conditional release The convicted person has the right to make a written statement explaining his request. 30 days before a convicted person becomes eligible for conditional release and at the latest immediately after the submission of a request or a motion for conditional release the Prison Director forwards to the Panel, a copy of the personal file of the convicted person and a report on the same by a multi-professional team 19, consisting of the following documents: 19 Art. 128 paragraphs 4 and 5 LEPS. 5

a. the judgment sentencing the convicted person to long term imprisonment, imprisonment or juvenile imprisonment; b. a detailed report about previous convictions; c. an information sheet with key data regarding the convicted person to be completed by the Prison Legal Officer or a Deputy Director designated by the Prison Director; d. a report of prison social workers including the results of a home visit e. a report of the medical staff; f. a report of the prison psychologist or psychiatrist; g. a report by the correctional officers, including a summary or record of incidents involving the sentenced person; h. the written statement submitted by the convicted person, if any, i. the opinion of the Prison Director or Deputy Director j. a report on the educational or vocational training undertaken by the sentenced person, if any k. any document provided by the convicted person, his defence counsel or his family, in particular concerning his job opportunities outside the prison and other post-release plans l. any other information relevant to the convicted person s eligibility for conditional release If the documentation is considered incomplete by the Panel it can always ask for supplementary information. If not all documents are provided, the Panel can nevertheless decide if it finds that it is sufficiently informed. Convicted persons whose cases are reviewed by the Panel have no access to any of the reports or documents considered by it. The Director of the correctional facility where the convicted person is serving its sentence shall invite a probation officer in the nearest region to interview the convicted person. During this interview the convicted person is required to sign a commitment that he or she will not commit another criminal offence during the conditional release period. In practice, apparently inadmissible requests for conditional release are presented to one of the Presiding judges to decide on their admissibility. In case of admissibility the review procedure follows. If the request is judged to be inadmissible the 6

convicted person, his Defence Counsel if any, and the Prison Director are informed in writing. The Presiding Judge also decides on requests for review of previous decisions of the Panel if they are introduced before the date for reconsideration has elapsed. If no exceptional circumstances exist, the judge instructs the petitioner to introduce his request for reconsideration after the date set by the Panel in its previous decision. The convicted person, his Defence counsel if any, and the Prison Director are informed in writing. 5.2. The review procedure After receiving the request and any accompanying documentation the judge who presides the Panel s chamber prepares a report on the case. The deliberation is based on and starts with a verbal report on the case by the judge presiding the Panel s chamber. If the Panel members consider it necessary they can consult the documents freely. After the report of the president the Panel members express their views and cast their votes. The judge presiding the Panel s chamber expresses his view and cast his vote last. Decisions are taken by a simple majority. The voting is repeated until such a majority is reached. A record is kept reflecting the final decision and is signed by all the members of the chamber. Deliberations take place in closed sessions and remain confidential. There are three possible decisions: a. acceptance of the request b. refusal of the request c. postponement of the decision. Postponement. The decision will be postponed if more information is needed to reach a decision. The term of postponement is 30 (thirty) days. When a decision is postponed, the case continues to be treated by the same members of the Panel, if possible. Acceptance and refusal. The request will be accepted or refused depending on whether the conditions set forth in the law are met. The formal decision in general. The ruling on the request for conditional release consists of 3 (three) parts: an introduction, an enacting clause and a brief statement of grounds. The introduction mentions the place and date where the Panel s chamber met, the name and surname of the judge who presided, the name and first name of the convicted person, the mention of the court that sentenced the convicted person, the 7

date of the conviction, the crime or crimes committed, the punishment inflicted and the date of the request for conditional release. The enacting shall mention whether the decision is postponed, the request is accepted or refused. The brief statement of grounds gives briefly the reasons of the decision. The formal decision. Acceptance. A ruling accepting the request and granting conditional release shall contain, amongst others, the date on which the convicted person shall be released from serving his or her sentence. 20 In practice this release date is scheduled within one week after the date of the ruling. The decision will also inform the released person of his obligations and possible sanctions. The formal decision. Refusal. If the request is refused and conditional release is not granted, the ruling shall contain, amongst others, the date on which the Panel may reconsider the convicted person s request for conditional release. In practice the reconsideration is set no sooner than 3 (three) months and no later than 1 (one) year after the previous consideration. 21 If a disciplinary punishment of solitary confinement is imposed on the convicted person between the date of issuance of the ruling on conditional release and the date of conditional release from service of the sentence, the conditional release panel has to reconsider the ruling. 22 The decisions of the Panel are final and are not subject to appeal. 5.3. The procedure after review. Within 3 (three) days of the issuance of a ruling on conditional release, the Coordinator provides the convicted person and the Prison Director with a copy of the ruling. If the ruling grants conditional release the Coordinator also provides the Probation Service with a copy of the file and of the ruling. The Prison Director ensures the following steps are taken in case of the conditional release is granted: a. Inform the UNMIK Police/KPS station of the area at which the convicted person will reside during the conditional release period at least seventy- two (72) hours before the start of the conditional release. b. Inform the court which sent the convicted person to serve the sentence at least seventy-two (72) hours before the start of the conditional release. 20 Art. 130.2 LEPS. 21 Art. 27 Directives. 22 Art. 130.4 LEPS. 8

c. Inform the nearest regional office of the Probation Service of the start of the conditional release. d. Fully explain the conditions of release to the convicted person (e.g. reporting requirements and consequences of committing additional crimes). When the ruling grants conditional release, the case file is kept by the Panel s coordinator/recorder. If the request for conditional release is refused, the case file of the convicted person is sent back to the correctional facility. Once the date for reconsideration set by the Panel has been reached, the Prison Director automatically sends the case file back for reconsideration by the Panel. Together with the file comes an update of the reports mentioned above. The procedure then follows the rules described. If problems arise due to a change of circumstances the Panel adapts the conditions imposed, in conformity with the law or relieves the Probation Service of the duty to control specific points or to assist the conditionally released person in certain matters. The typical example is the released person who wants to leave Kosovo to work, join his family or get treatment. 23 There are two possible views on the subject. The first view stresses that a conditionally released person cannot be allowed to travel outside of Kosovo because he/she is technically still serving his/her sentence. The other view stresses that the execution of penal sanctions aims amongst other things at the reintegration of the convicted person into society and prepare him or her to conduct his or her life in a socially responsible way 24 and that this purpose is best served by allowing for reunification with ones family or granting the opportunity to earn a living, be it abroad. As for medical treatment abroad, proponents of both views agree that this must be possible since penal sanctions must be executed in such a way as to assure humanity of treatment and respect for the dignity of each individual. 25 6. Admissibility of the request. Conditional release can only be requested when the judgment against the convicted person is final. First of all, there must be a judgment; conditional release does not apply to pre trial detention. For purposes of conditional release a judgment is considered final when it is not subject to appeal or to a request for protection of legality. When a convicted person is subjected to several simultaneous convictions conditional release can only be requested after the imposition of an aggregate 23 Art. 33.4 Directives. 24 Art. 3 LEPS 25 Art. 4.1 LEPS. 9

sentence. Before the imposition of such a sentence it is not possible to determine if 1/3, 1/2 or 3/4 of the sentence has been reached. A request for conditional release is only admissible: a. for the convicted person serving a sentence of imprisonment: if he or she has served 1/2 (one half) of the sentence (Art. 80.2 PCCK); b. for the convicted person serving a sentence of imprisonment, on an exceptional basis: if he or she has served 1/3 (one third) of the sentence (Art. 80.3 PCCK). Such an exception exists when special circumstances relating to the convicted person indicate that he or she will not commit a new criminal offence ; c. for the convicted person serving a sentence of long-term imprisonment 26 : if he or she has served 3/4 (three quarters) of the sentence (Art. 80.4 PCCK); d. for the sentenced person serving a sentence of juvenile imprisonment 27 : if he or she has served 1/3 (one third) of the sentence (Art. 32.1 JJCK). 7. The decision. The convicted person who enters an admissible request may be granted conditional release if there are reasonable grounds to expect that he or she will not commit a new criminal offence (Art. 80.1 PCCK). The law uses the word may ; this means that it is not because the term of 1/3, 1/2 or 3/4 has been reached that release is automatic. Conditional release is a way to execute a principal punishment. 28 As such, conditional release shall aim at the reintegration of the convicted person into society and prepare him or her to conduct his or her life in a socially responsible way, without committing criminal offences. Conditional release shall also serve the purpose of protecting society by preventing the commission of further criminal offences. 29 In essence the Conditional Release Panel is asked to make a risk assessment. To assess whether the conditions set forth in the law are met, the Panel mainly uses the following criteria 30 : a. The seriousness of the crime, including the description in the judgment convicting the petitioner. Particularly relevant are the comments and 26 The punishment of long-term imprisonment is imprisonment for a term of twenty-one to forty years (Art. 37.2 PCCK). 27 Juvenile imprisonment is a punishment imposed to a minor older than 16 years of age or to a young adult (Art. 6, 9 and 10 Juvenile Justice Code of Kosovo, hereinafter JJCK). 28 The articles 129 to 132 LEPS organizing conditional release are placed in Part 2 Execution of Principal Punishments of the LEPS 29 Art. 3 LEPS. 30 Art. 10 Directives. 10

recommendation by the court. The seriousness of the crime is an indicator of the need to protect society. b. The past criminal history. The convicted person s criminal history and the nature of any prior crime committed. c. The sentenced person s version of the crime. The sentenced person s portrayal of the crime, in particular, the convicted person s sense of responsibility for the crime: not only as expressed by him or her, but also on the basis of objective observations as his or her attitude observed by the social worker, the restitution of the object of the crime and the compensation of the damage done. d. The attitude of the sentenced person towards the victim, including the danger to the physical and moral integrity of the victim, apologies offered to the victim and reconciliation. e. Behavior during imprisonment. The convicted person s willingness to participate in programs and general attitude towards prison staff and other prisoners, any displays of aggression or violence by the convicted person, including disobedience toward correctional officers and arguments or physical fights with other prisoners and any other relevant behaviour while in prison, such as work experience, disciplinary offences, segregation, etc. f. The psychiatric or psychological state. The convicted person s psychiatric and psychological condition, suicide attempts, substance abuse problems, post-release treatment, etc. In the case of substance abuse, some types of sexual delinquency or psychic problems, concrete proposals are expected concerning the proposed post-release treatment. For the most serious offences a risk assessment by the prison psychiatrist or psychologist might be needed. g. The physical state. The convicted person s full medical file, including information regarding physical disabilities and limitations, communicable diseases, allergies, post-release treatment, etc. h. Social background and family contacts, including the proximity of the convicted person s family, contact/visits with family members during imprisonment and the social background of family, including criminal background. i. Convicted person s post release plans. Job prospects and training/educational programs, the environment and community in which the convicted person will reside after release, the general feasibility of the release plan and the capacity to provide for oneself. Concrete documented proof, especially of the job prospects, can be expected 11

j. The acceptance of control and assistance by the probation service. The acceptance by the convicted person that the Probation Service will be controlling certain specific points. k. The existence of a danger for the general public, including the possible implications of release on victims and the community. l. The prospect that a sentenced person of foreign origin has the intention to return home. When a convicted person requests to be conditionally released after having served one-third of a sentence of imprisonment, claiming that special circumstances exist, the Panel examines: 31 a. whether these circumstances are really special, and b. whether they relate to the convicted person, and c. whether they indicate that he or she will not commit a new criminal offence. In addition, the general criteria mentioned above also apply to these requests. Here it should be noted that the information the Panel gets from the prison psychologist or psychiatrist is at present generally insufficient to insure a professional risk assessment. 8. The supervision of the conditionally released person. The supervision of the conditionally released person is done by the Probation Service of Kosovo. Its task is amongst others, to supervise and assist convicted persons. 32 There is no legal framework concerning contacts between the Conditional Release Panels and the Probation Service, but to ensure feedback, this very dynamic service provides the Panel with interim reports every year and a final report at the end of the conditional release period or when a problem arises. These reports serve a double purpose: 1. to provide the CRP with the necessary feedback concerning its decisions, allowing for re-evaluation of its actions; 2. to allow for the initiation of sanctions in case of breach of conditions or re-offending. The Probation Service only has jurisdiction in Kosovo and cannot supervise a conditionally released person outside of Kosovo. International conventions exist 31 Art. 80.3 PCCK 32 Art. 194.4 LEPS. 12

that organize the supervision of conditionally released persons residing abroad, such as the European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders dated 30 November 1964. Kosovo however is not part to this Convention. 33 9. The duration of the conditional release and the supervision. The law does not provide a specific duration for the supervision of the conditionally released person. It is therefore accepted that the supervision finishes when the prison term pronounced by the judge would have finished. Very often this period is much too short to allow for a meaningful follow up of the behaviour of the conditionally released person. 10. Conditions. A system of conditional release usually foresees a system of individualized postrelease conditions, whose aim it is to reduce the risk of recidivism. These include reparation or compensation, entering a treatment, working, participation in programs, prohibition on residing or visiting places, etc. 34 These possibilities do not exist in Kosovo. The CPR may not impose individualized post-release conditions. The only conditions imposed on the conditionally released person are 35 : - not to re-offend - to inform the police of his or her place of residence - to report to the Probation Service - to inform the police and Probation Service of a change in address For a person conditionally released from juvenile imprisonment and for persons released from prison after a mandatory psychiatric treatment in custody however, a special regime applies allowing the imposition of particular conditions, as will be mentioned later. For the other conditionally released persons it is not possible to impose individualized post-release conditions. The view strangely enough, seems to be that the re-socialization has been reached when the person leaves the prison gates. The only possibility consists of asking the Probation Service to focus on certain problems, like reparation, treatment, etc., while assisting and controlling the conditionally released person. 33 According to Section 1.1.b of UNMIK/REG/1999/24 as amended by UNMIK/REG/2000/59 the law in force in Kosovo is i.a. the law that was in force before 22 March 1989. Since Serbia only adhered to the Convention on 30 September 2002 and it only entered into force for that country on 29 December 2002, the Convention is not part of the law in force in Kosovo. The Convention was not adhered to later by UNMIK or the Kosovo government. 34 Art. 13.1 of the Tokyo Rules; Art. 8 of the Appendix to Recommendation Rec(2003)22 on conditional release adopted by the Committee of Ministers of the Council of Europe. 35 Art. 81 PCCK and 131 LEPS. 13

The possibilities offered in Kosovo for treatment and the like are scarce, but should not be underestimated. It can be useful that the person asking to be released establishes the necessary contacts before his or her release is ordered. 11. Discipline and breach of conditions. 11.1. Revocation of the conditional release. Not re-offending is the only substantive condition. It is sanctioned with revocation of the conditional release if transgressed. 36 It is up to the court examining the new case to decide about revocation. The law speaks about the court and does not provide for special proceedings 37 so that it must be concluded that it is up to the main trial judge to decide. 1. The court shall revoke conditional release if a convicted person, while on conditional release, commits one or more criminal offences or is punished for a criminal offence committed prior to his or her conditional release, for which a punishment of imprisonment of more than one year was imposed. 2. The court may revoke conditional release if a lesser punishment was imposed. The criteria to be taken into account are mentioned in the law, among other things the similarity of the offences. If the conditional release is revoked an aggregated sentence 38 has to be imposed in which only the part of the previously imposed sentence that has been served shall be calculated. Example. Person A was sentenced to 4 years imprisonment. He was conditionally released after two years. One year later, during his period of conditional release he commits a new offence, for which he gets a punishment of 3 years imprisonment. The main trial judge will have to impose an aggregated sentence, aggregating the 2 years already served, with the newly imposed 3 years, for example an aggregated sentence of 4 years and 6 months imprisonment in total. If the court does not order the revocation of the conditional release, the term of the release shall be extended for the period of time imposed in the new judgment. Example. Person B was sentenced to 4 years imprisonment. He was conditionally released after two years. One year later, during his period of conditional release he commits a new offence, for which he gets a punishment of 1 year imprisonment. The term of the conditional release which was originally 2 years (namely the duration of the sentence that was not served) will be extended with one year, totalling 3 years. 36 Art. 81 PCCK. 37 Part 7 of the PCPCK. 38 See Art. 71 and 72.2 PCCK. 14

11.2. A fine. A breach of the other conditions, informing the police of ones place of residence and reporting to the Probation Service, is sanctioned with a fine that may not exceed 100 EUR. 39 It is the court which sentenced the conditionally released person to imprisonment that is competent to impose the fine. Not only is such a fine not an effective way to ensure the observance of the conditions, but the courts are also reticent to impose such fines. However if the Probation Service encounters a case where the released person does not report or fails to mention a change in address, it informs the Panel, who informs the Public Prosecutor for possible prosecution pursuant to Art. 131.4 LEPS. If the Probation Service encounters problems because the released person does not accept control and assistance, the Conditional Release Panel is again informed. The Panel then makes a notification requesting the Police to bring the person in front of the Probation Service in case he or she is found. 12. Two exceptional cases. 12.1. Conditional release from juvenile imprisonment. Minors can be imprisoned. The punishment of juvenile imprisonment can be imposed to a minor who has reached the age of 16 years at the moment of commission of a criminal offence (this person is then between 16 and 18 years of age) or to a young adult (this is a person between the ages of 18 to 21 years). 40 Such a young person may be conditionally released if he or she has served at least one-third of the sentence that has been imposed. 41 Art. 4 JJCK prescribes that the provisions of the PCCK and the LEPS shall apply to minors, unless otherwise regulated. Since there is no such specific regulation, the general rule of the PCCK applies and it is therefore the CRP that is competent to decide on the matter. For the same reason, since the JJCK does not provide another regulation, the general rules applicable to adults, also apply, bearing in mind that the juvenile justice system emphasizes the well being of the juvenile and that deprivation of liberty should be limited to the shortest possible period of time. 42 Two remarks: 39 Art. 131.4 LEPS. 40 Art. 2, 6, 9 and 10 JJCK. 41 Art. 32.1 JJCK. 42 Art. 1.1and 1.3 JJCK. 15

1. Contrary to the adult system it is possible to impose individualised post-release conditions, be it specific and limited ones. Art. 32.2 JJCK provides: When granting conditional release, the court may impose a measure of intensive supervision by a parent, adoptive parent or guardian, in another family or by the Guardianship Authority to last until the end of the original sentence. Strangely enough the JJCK uses the term the court. From the quoted sentence it is however clear that it is the same organ that grants conditional release and imposes the measure of intensive supervision. Since it is the CRP that has jurisdiction for the conditional release it is logical that it is the same that also has jurisdiction to impose supervision. This is also a guarantee for a good administration of justice: when it decides on conditional release the Panel has at its disposal a recent report by a multi-professional team. It is thus well informed when it takes its decision. 2. The JJCK provides for a specific system of revocation of conditional release. Whereas the system for adults provides for compulsory revocation in certain cases, revocation is always optional in the case of a minor. 12.2. Conditional release after a mandatory psychiatric treatment in custody. Persons who committed a criminal offence in a state of diminished mental capacity can be imprisoned too. They can be subjected to a measure of mandatory psychiatric treatment in custody or at liberty but if grounds for imposing a criminal sanction in accordance with the PCCK exists, such a sanction may also be imposed. 43 The use of the language May also be imposed means this is discretionary. This option applies only to a person in a state of diminished mental capacity, not to a person in a state of mental incompetence. If imprisonment has been ordered, conditional release is possible. How does this relate to the mandatory psychiatric treatment? Ex officio or on the motion of the perpetrator, defence counsel, health care institution or of the competent Guardianship Authority, the court that imposed the measure at first instance shall terminate the measure, if it determines that it is no longer necessary to treat and confine the perpetrator in that institution. 44 There are thus 3 possible cases: 1. Mandatory treatment in custody was ordered, but not imprisonment. If the measure is terminated, the person is free and has to be released from the health care institution. 2. Mandatory treatment in custody was ordered together with imprisonment and the treatment lasted longer than the term of imprisonment imposed. If the measure is terminated by the court that imposed it at the first instance, then again the person is free and has to be released from the health care institution. This is clear, because if 43 Art. 3 UNMIK/REG/2004/34 dated 24 August 2004 on criminal proceedings involving perpetrators with mental disorder. 44 Art. 21.4 UNMIK/REG/2004/34. 16

the treatment lasted beyond the imprisonment, only the measure that remains may be decide on. The imprisonment was automatically terminated when it was fully completed. 3. Mandatory treatment in custody was ordered together with imprisonment and the time spent in a health care institution is less than the term of imprisonment imposed. What happens after the release from the health care institution? The person is then eligible for conditional release. The conditional release at that moment is not dependant of the general conditions of admissibility mentioned in Art. 80 PCCK (having served 1/3, 1/2 or 3/4 of the sentence). Particular conditions prevail: the success of the treatment of the convicted person, the condition of his or her health, the time spent in the health care institution and the duration of the remainder of the sentence. 45 As with minors, individualized conditions can be imposed, here in the form of a mandatory psychiatric treatment at liberty. 46 If conditional release is refused at that moment and under these particular conditions, the convicted person shall serve the remainder of the sentence of imprisonment. He or she will be escorted from the health institution to the correctional facility. 47 It is the opinion of the authors that starting from that moment the convicted person falls under the general regime of Art. 80 PCCK and 128 LEPS, because Art. 33.1 UNMIK/REG/2004/34 prescribes that the provisions of the PCCK and the LEPS shall apply to perpetrators with a mental disorder, unless otherwise provided in that regulation. It is clear that the decision to review and terminate the mandatory psychiatric treatment in custody falls under the jurisdiction of the court that imposed the measure at first instance. 48 UNMIK/REG/2004/34 however uses ambiguous language when indicating the authority competent to decide on conditional release. Art. 24 of that regulation uses the term the court ( gjukata in Albanian and sud in Serbian). In our opinion this term is used to indicate the CRP established in accordance with Art. 129.1 LEPS. The regulation does not specify which court it means. Therefore the general rules provided for in Art. 80 PCCK and 129 LEPS applies, granting jurisdiction on the matter of conditional release to the CRP. As has been indicated the provisions of the PCCK and LEPS apply, unless otherwise provided. The general competence of the CRP to decide on conditional release is the more evident, since the regulation does not explicitly grants this competence to any specific court, while it did not hesitate to explicitly name the court that imposed the measure in first instance, in other matters. 49 45 Art. 24.2 UNMIK/REG/2004/34. 46 Art. 24.3 UNMIK/REG/2004/34. 47 Art. 24.4 UNMIK/REG/2004/34. 48 Art. 21.4 UNMIK/REG/2004/34. 49 For example in Art. 21 or 26 UNMIK/REG/2004/34. 17

13. Statistics. 50 When the Conditional Release Panels took over in 2005, there was a backlog in cases. At present, there is no backlog. In 2006 the CRP held 35 sessions. 349 sentenced persons applied. 301 requests for conditional release were considered, of which 139 (46,18 %) were granted and 162 (53,82 %) refused. In 2007 the CRP held 31 sessions. 405 requests were considered, of which 186 (45,96 %) were granted and 219 denied (54,04 %) Between 1 January and 31 August 2008 the CRP held 18 sessions. 236 requests were considered of which 86 (36.44 %) were granted and 150 (63,56 %) denied. As for the requests to travel abroad: in 2006 the CRP approved of one request, in 2006 six and between 1 January and 31 August 2008 there were nine approvals. In 2007 the courts pronounced two revocations of conditional release. In 2008 one case was recommended to the competent Public Prosecutor for possible revocation and three for possible sanctions. 14. Critical notes. The most pressing problem, is to get the local judges involved in the system. However, there are other problems. The Tokyo Rules mention that they shall be implemented taking into account the political, economic, social and cultural conditions (Annex, Art. 1.3). This allows for some latitude, but one must come to the conclusion that improvements are needed. Some of these concern procedural aspects which at first glance would not involve great costs but greatly improve the legal position of the convicted person, such as: - the right for the person requesting conditional release and his lawyer to be heard; - the right to have adequate access to their files; - improvement of the position of the victim, who is totally excluded of any participation. Some others imply a bigger financial effort, but are nevertheless essential: - the introduction of individualised conditions and of an appropriate sanction system - the extension of the duration of the supervision beyond the term of the sentence 50 Bedri DURAKU, Report CRP/000188/bd/08 on the Conditional Release System, dated 09 January 2008. 18

- the strengthening of the assistance given to the released persons and the involvement of the community - the extension and specialization of pre-release programs - the training of prison psychiatrists and psychologists in risk assessment techniques These improvements are the responsibility of the governing authorities, but not only theirs. The LEPS envisions an important role to be fulfilled by civil society. Art. 4.4 LEPS provides society should cooperate in the social reintegration of the convicted person. Art. 4.5 LEPS even goes beyond that, by urging the participation not only of public institutions or bodies, but also of private ones, as well as of individuals in the reintegration process. Sociologists, psychologists and medical doctors and other persons with knowledge of social sciences, as well as students in these disciplines, should organize on a voluntary base to develop pre-release and post-release programs, for the common good. These programs should address violence, domestic violence, self-control, substance abuse and the like. It is up to civil society to claim the place the law provides for it. Notwithstanding its weaknesses, the basis of the Kosovan system reflects a fundamental principle of a democracy: the judiciary imposes sanctions, the executive executes them. Article 129 LEPS reflects this fundamental principle and entrusts a panel of 3 judges with the decision on conditional release. Since the conditional release is a modality of execution of the sanction that fundamentally changes its character, it is up to an impartial and neutral arbiter to decide. The intervention of judges is also a way to guarantee legal security (rule of law) and equality of treatment. The basis of the Kosovan system is therefore a healthy one. 19