CONDITIONAL DISCHARGE (RELEASED ON PROBATION) - ASPECTS CONCERNING CRIMINAL JUSTICE AND CRIMINAL PROCEEDINGS

Abstract

Conditional discharge dates to the mid-nineteen century and has its roots in the progressive and Irish imprisonment system. The third phase of the imprisonment in the progressive system was named — conditional discharge, while in the Irish system it was the fourth phase. The Irish imprisonment system was accepted in a great number of countries, among which there was also a pre-war Yugoslavia. Several prisons in Yugoslavia were modeled on that system — Zenica, Sremska Mitrovica, Lepoglava. The conditional release aims to ensure the good behavior of the convicted person who performs their work responsibilities and who will not commit new criminal acts before the expiry of their imprisonment punishment, and all with the aim of re-socialization of the convicted person. Because of that, an extension of probation ban for certain criminal acts contradicts the basic purpose of punishment prescribed by Article 42 paragraph 1 item 1 of the Criminal Law, and that is preventing the perpetrator to commit criminal acts and changing them in such a way that they do not commit criminal acts in the future. Punishment and sentence execution cannot be considered retaliation for the committed crime, which would rather fit the theory of intimidation by sentence execution, the theory which has been abandoned a long time ago and replaced by the current modern theory of the purpose of punishment, the theory of re-socialization, which highlights the individualization of the imprisonment sentence as an essential feature for the rehabilitation of the convicted person.