The Constitutional Court of Republika Srpska has determined that the legal possibility of replacing a prison sentence with a fine places wealthy convicts in a privileged position and as such is not in accordance with the Constitution of the RS.
This means that the National Assembly of the RS will have to delete or amend this provision of the Criminal Code, after which convicts in the Republika Srpska will no longer be able to redeem their prison sentence.
The decision applies only to entity law, while nothing changes for convicts tried under the criminal laws of BiH, the Federation of BiH and the Brčko District. In these laws, there is still the possibility of replacing a prison sentence of up to one year with a fine.
Constitutional Court: Inequality of citizens before the law
The Constitutional Court of the RS has declared the provision of Article 46a, paragraph 3. of the Criminal Code of the RS, which stipulated that a prison sentence of up to one year can, at the request of the convict, be replaced with a fine, unconstitutional.
“Since a fine is a property-based sanction, such a regulation places convicted persons of good financial standing, who can pay a fine instead of serving a prison sentence, in a privileged position compared to convicted persons of poor or weaker financial standing,” the decision states.
The court believes that the disputed provision creates legal uncertainty and legal uncertainty in the application of law, and that it is not in accordance with the constitutional principle of equality of citizens before the law.
Divided opinions of citizens and experts
Opinions in the public, but also among lawyers, on this decision are divided.
Attorney Milan Malešević believes that the repeal of this provision contributes to fairness in the system.
“In my opinion, such a norm has no place in the legal system. There is a possibility that perpetrators of misdemeanors, i.e. minor offenses, end up in prison because they do not have to pay the misdemeanor, while perpetrators of criminal offenses, i.e. major offenses, do not have to end up behind bars if they have money.”
His colleague Branko Gudalo takes the opposite position and believes that it should be possible to replace the sentence for everyone, regardless of their property status.
“We have, for example, the Law on Misdemeanors. For a misdemeanor, everyone pays fines the same — both rich and poor — and there is no difference. Therefore, this institute should be introduced here as well, so that within a year who wants to pay, who will not go to prison.”
Feraget: The Federation should follow the example of RS
Ifet Feraget, a lawyer from Sarajevo, believes that the Federation of Bosnia and Herzegovina should remove the possibility of buying out a prison sentence, as is now done in the RS.
“The current solution in the Federation is bad in my opinion, and before it was better when it was stated that the court could replace a prison sentence of up to one year with a fine. Then the court appreciated who it was and under what circumstances the crime was committed. Now we have a colorful situation that does not correspond to the basic postulates of criminal law and the purpose of punishment.”
How much does freedom cost?
According to current regulations, one day of imprisonment is worth 100 BAM, or a year of imprisonment is worth 36,500 BAM.
For those with that money, prison can be avoided. For those who don’t, a prison sentence remains the only option.
After this decision of the Constitutional Court of the RS, such a possibility will soon no longer exist in the Republic of Srpska.
