Meaning and Definition of the Penal Sanction

Resmi Hoxha,

Mob.nr: +377 44 169018

Email: info@avokatura.com

Zahir Pajaziti Square, H-1 No.8

10000 Pristina

Kosovo

Meaning and Definition of the Penal Sanction

Criminal sanctions are measures of coercion envisaged by positive legal provisions which apply to offenders.

Criminal sanctions represent one of the measures by which society is protected from criminality.

They are forms of state reaction to criminal offenses of citizens. They usually apply to offenders in order to protect the important goods of the state and the individual.

The prediction and application of all penal sanctions in a country under the positive criminal provisions is called a system of criminal sanctions.

Criminal sanctions as a safeguard measure are the means of preventing criminality, ensuring the social order from the dangerous and unlawful attacks of certain individuals and groups (taken from Penology)

Criminal sanctions are imposed and enforced against the will of the perpetrator and consist in taking or limiting some of the rights which otherwise have enjoyed extensively at the moment of committing the offense.

Criminal sanctions imposed on perpetrators of criminal offenses are less venomous and more pronounced in order to improve.

Penalty Features:

Penalty should be personal

The punishment must be Human

Penalty should be legal / legitimate

Penalty should be within the legal framework

The sentence should be proportionate to the gravity of the offense and to the degree of criminal liability

The punishment must be separate

The punishment must be revocable (when pronounced because of false testimony it must be revoked).

The Republic of Kosovo has accepted the general principles of human rights and fundamental freedoms and has guaranteed in its constitution these rights. That also in terms of the imposition and enforcement of the criminal sanction has advanced by humanizing the criminal sanction to eliminate the vengeful character and forbidding the death penalty by guaranteeing human right to life.

The role and hierarchy of penal sanctions in the model of the rule of law.

Hijackey's specificity of legal acts in Kosovo

The hierarchy of legal acts in Kosovo has been specific and can be treated in two periods;

The period prior to the approval of the Constitution of the Republic of Kosovo and the period After the adoption of the constitution and declaration of independence:

The legal structure in Kosovo in the period prior to the approval of the Constitution of the Republic of Kosovo is very complex. Complexity is

existing due to different norms and acts from former Yugoslavia which have continued to be in force, UNMIK regulations, Kosovo laws before the entry into force of the Kosovo Constitution and the laws that came into force after the constitution.

Also, the complexity of the Hierarchy of Legal Acts is also created in relation to international conventions and supremacy in comparison with applicable local laws as this is not expressly defined by laws.

Starting from the end of the war in Kosovo, the UN Security Council, in support of the UN Charter on 10 June 1999, approved the resolution no. 1244 by which it established the United Nations Interim Administration Mission in Kosovo (UNMIK)

The establishment of UNMIK in Kosovo by United Nations Security Council Resolution 1244/1999, approves as the first act UNMIK Regulation 1999/1 which, in Article 4, lays down the applicable law in Kosovo13. According to her, "Kosovo Laws, which were in force in its territory before 24 March 1999, shall continue to apply in Kosovo unless they contravene the standards referred to in Article 2, with the fulfillment of the mandate given to UNMIK, by United Nations Security Council Resolution 1244 (1999) or by this regulation or any other regulation issued by

UNMIK "14. UNMIK Regulation 1999/1 supplemented by UNMIK Regulation 1999/24, Section 1 provided for the applicable laws in Kosovo. According to them the applicable law is15:

a) Regulations promulgated by the Special Representative of the Secretary-General

and ancillary instruments derived therefrom, and

b) Applicable Law in Kosovo until 22 March 1989.

c) Laws issued after 22 March 1989, provided that their provisions do not have

discriminatory character and not be in conflict with the provisions of

international conventions and practices, a provision that can

apply in practice as an exception under Article 1.2 of the regulation in question - 1.2.

After June 15, 2008 and the entry into force of the Kosovo Constitution, we have one

changing the process and creating a clear legal hierarchy and concretizing supremacy of legal acts. The Constitution of Kosovo in Article 16 speaks of the legal hierarchy "The Constitution is the highest legal act of the Republic of Kosovo. Laws and other legal acts must be in accordance with this Constitution .18

Meanwhile, article 19 of the constitution regulates the implementation of the provisions of international agreements. Paragraph 1, Article 19 states that "international agreements ratified by the Republic of Kosovo shall become part of the domestic legal system as they are published in the Official Gazette of the Republic of Kosovo. They are implemented directly, unless they are self-enforceable and their implementation requires the issuance of a law19. Whereas Article 2, Article 19 states that "ratified international agreements and legally binding norms of international law have precedence over the laws of the Republic of Kosovo" 20.

The source, starting point and framework for criminal sanctions is the Constitution of the R.K that then with the respective Law defines a hierarchy of sanctions and the role of criminal sanctions and measures as follows:

I. Constitution of the Republic of Kosovo

The Constitution is the highest act of the country. 1. This is the most general answer

and usually given by anyone when the question arises as to what a constitution is and

what function does it have. Such a response is found when we read the constitution of the Republic of Kosovo: Article 16 - expressly stipulates that the constitution is the highest law of the country. Laws and other legal acts must be in accordance with the Constitution; 2. When defining the Constitution as the highest law of the country, the legislator stipulates that this document is the legal regulation which is in the hierarchy of normative acts in the highest position. 3. The Constitution is the document on which is based all the legislation of our country, which regulates

relations between the state and persons, state bodies between them and even sets the basis for regulating the relations between the two. This legislation should not only be based on the constitution, but it should also be consistent with it.

Thus, the Constitution is a source or starting point and framework for other laws of the country.

But not just that. A Constitution mainly provides an organizational way to

rule in society which would otherwise be difficult to work on

this way.

Rule of Law in the Constitution of the Republic of Kosovo

The Constitution defines the general and special principles and mechanisms of

state organization. It creates government institutions by sharing powers

between them so that the rule begins with state mechanisms.

Usually, the powers granted to state institutions are restricted and an inter-control mechanism is established, thus maintaining the balance of

their normal functioning. Thus, the powers are divided through various mechanisms so that the powers or powers of these institutions are limited to the area in which the institution is determined to function.

In order not to leave the judicial power, it should be said that an independent judiciary,

which is also ensured by the Constitution, is fundamental to the function of the rule of law. This would enable the preservation of the constitutional order and the assurance of the rights of individuals.

Then, for the functioning of the rule of law, the constitution of the Republic of Kosovo further provides:

Article 22 [Direct Application of Arrangements and Instruments

international]

Human rights and freedoms guaranteed by the following international agreements and instruments are guaranteed by this Constitution, applied directly to the Republic of Kosovo and have priority, in case of conflict, to the provisions of laws and other acts of public institutions:

Among the eight international instruments counted in the constitution, is also

(8) The Convention against Torture and Other Cruel, Inhumation,

Inhuman and Degrading.

Article 25 [Right to Life]

1. Everyone enjoys the right to life.

2. The death penalty is prohibited.

Article 29 [Right to Freedom and Security]

1. Everyone is guaranteed the right to freedom and security. No one shall be deprived of liberty except in the cases provided for by law and by a decision of the competent court, as follows:

(1) after the pronouncement of the punishment of imprisonment for committing the criminal offense;

(2) for a grounded suspicion of committing a criminal offense only when deprivation of liberty on a reasonable basis is considered necessary to prevent the commission of another criminal offense and only for a short period of time before the trial in the manner prescribed by law;

(3) for the supervision of a minor for educational purposes or for his or her accompaniment to a competent institution under a lawful order;

(4) for health surveillance of the person who, because of the illness, poses a risk to the company;

(5) for illegal entry into the Republic of Kosovo or after a lawful order for removal or extradition.

2. Anyone deprived of liberty must be made aware immediately of the reasons for deprivation in the language that he / she understands. Written notification on the grounds for deprivation should be made as soon as possible. Anyone deprived of liberty without a court order shall within 48 hours be sent to a judge who decides on his or her detention on remand, not later than forty eight (48) hours from the moment when the deprived person is brought before the court. Anyone being arrested has the right to be tried within a reasonable time or to be released pending trial, unless the judge

ascertains that the person poses a risk to the community or there is a risk of his / her departure before the trial.

3. Anyone deprived of liberty shall be immediately informed that he has the right not to make any statement and that he has the right to a defense counsel of his / her choice and has the right without delay to inform him of his or her choice .

4. Anyone deprived of liberty by arrest or detention shall have the right to use remedies to challenge the lawfulness of arrest or detention. The case will be decided by the court within a short deadline and if the arrest or detention is unlawful, the release of the person will be ordered.

5. Anyone who has been detained or arrested in violation of the provisions of this Article shall be entitled to compensation in the manner provided for by law.

6. The person serving the sentence has the right to complain about the conditions of deprivation of liberty, in the manner prescribed by law.

Article 31 [Right to Fair and Impartial Trial]

1. Everyone shall be guaranteed equal protection of the rights in the proceedings before the courts, other state bodies and holders of public powers.

Access to trial is considered as an essential element of the right to a fair legal process. The rule of law can not be conceived without recognizing individuals the right and opportunity to address the court:

Article 33 [Principle of Legality and Proportionality in Criminal Cases]

1. No one shall be charged or punished for any offense which, at the time of commission, was not determined by law as a criminal offense, with the exception of offenses which, at the time of their commission, under international law , constituted genocide, war crimes or crimes against humanity.

2. The punishment imposed for a criminal offense may not be more severe than it was prescribed by law at the time of commission of the offense.

3. The severity of the punishment can not be disproportionate to the criminal offense.

4. Penalties shall be determined in accordance with the law that was in force at the time of the commission of the offense, with the exception of offenses for which subsequent applicable law is more favorable to the perpetrator.

Article 34 [Right to Not Be Triangulated for the Same Works]

No one can be tried more than once for the same offense.

Article 55 [Limitation of Fundamental Rights and Freedoms]

1. Fundamental rights and freedoms guaranteed by this Constitution may be restricted by law only.

2. The fundamental rights and freedoms guaranteed by this Constitution may be limited to the extent that it is necessary for an open and democratic society to fulfill the purpose for which restriction is permitted.

3. Restrictions on fundamental rights and freedoms guaranteed by this Constitution may not be made for any purpose other than those for which they have been designated.

4. In the case of limiting human rights and the interpretation of those limitations, all public power institutions, and especially the courts, are obliged to pay attention to the essence of the limited right, the importance of the purpose of restraint, the nature and extent of the limitation, the relationship between the limitation and purpose intended to be achieved, and to consider the possibility of achieving that purpose with a lesser degree of restriction.

5. The restriction of the rights and freedoms guaranteed by this Constitution does not in any way deny the essence of the guaranteed right.

One of the powers of the President under the constitution is as follows;

(29) proclaims individual pardon, in accordance with the law.

So give apology for the sanctions imposed on individuals in accordance with the special law on pardon.

Thus, the Constitution is a source or starting point and a framework for the supremacy of other laws of the country, thus also for the issuance of the Law on the Execution of Penal Sanctions.

The Criminal Code of Kosovo defines this hierarchy of Criminal Sanctions:

The criminal sanctions are:

1) Major Penalties;

2) Alternative sentences;

3) Additional penalties and penalties

4) Judicial Remarks.

Law on Execution of Criminal Sanctions

Article 2

Scope of the law

1. Penal sanctions shall be executed in accordance with this law.

2. According to this law criminal sanctions are the main punishments, alternative punishments, additional penalties and judicial remarks.

3. Mandatory treatment measures are executed in a particular institution in accordance with this law.

Article 3

Provisions of this law apply to the execution of penal sanctions imposed by domestic and foreign courts, in accordance with the Criminal Procedure Code and international agreements.

Topic: Classification of Nomenclature of Penal Sanction.

The source, the starting point and the framework for criminal sanctions is the Constitution of the R.K and then the Criminal Code of Kosovo, defines the nomenclature (denomination and types), types of criminal sanctions and measures as follows:

According to the Criminal Code of Kosovo it further regulates;

Article 3

CRIMINAL SANCTIONS AND MEASURES HANDLING TASKS

(1) Criminal sanctions are:

1) Major Penalties;

2) Alternative sentences;

3) Additional penalties and penalties

4) Judicial Remarks.

UNMIK / RREG / 2003/25 Official Gazette 6 July 2003

156

(2) Measures of compulsory treatment are:

1) Compulsory psychiatric treatment for offenders

mentally.

2) Compulsory psychiatric treatment for offenders with a criminal offense

diminished mental and

3) Compulsory treatment through rehabilitation of perpetrators of drug and alcohol-related offenses.

The above is the main division according to KPC to proceed down with the purpose and types of each criminal sanction:

CCK-CHAPTER III: PENALTIES

Article 34

THE PURPOSE OF PUNISHMENT

The purposes of the sentence are:

1) Prevent the perpetrator from committing criminal offenses in the future and to perform his rehabilitation and

2) Include other persons from committing criminal offenses.

Article 35

TYPES OF PENALTIES

There are main punishments, alternative and complementary punishments.

KEY PUNISHMENTS

Article 36

KEY PUNISHMENTS

The main sentences are:

1) Penalty for long-term imprisonment;

2) Imprisonment and

3) Fine Penalty.

ALTERNATIVE PENALTIES

Article 41

ALTERNATIVE PENALTIES

(1) Alternative sentences are:

1) Conditional Penalty and

2) Freemasonry.

(2) When imposing a suspended sentence, the court may also impose:

1) Order for compulsory rehabilitation treatment;

2) Supervision Order by the Probation Service and

3) Orders for general-benefit work.

UNMIK / RREG / 2003/25 Official Gazette 6 July 2003

167

Article 42

THE PURPOSE OF CONDITIONAL PUNISHMENT

The purpose of the conditional sentence is to give the perpetrator the rebuke, which reaches the purpose of the punishment

through the announcement of the sentence without the execution of the sentence.

Article 54

ADDITIONAL PENALTIES

(1) Additional punishment may be imposed along with the principal or alternative punishment.

(2) Additional penalties are:

1) fine;

2) Removal of the right to be elected;

3) Prohibition of exercising functions in public administration or service

public;

4) Prohibition of exercise of profession, activity or duty;

5) Prohibition to drive the vehicle;

6) Taking a driving license;

7) Taking the item;

8) Order for publication of the judgment and

9) The deportation of a foreigner from the territory of Kosovo.

(3) The additional penalty for driving the driving license may be imposed, with the permission of the court or with the release of the punishment, by issuing a driver's license and an item of property.

Article 76

SPECIAL PROVISIONS FOR MEASURES OF PAYABLE PSYCHIATRIC TREATMENT

Procedures for ordering measures for compulsory psychiatric treatment for the perpetrator with

mental disability or mental impairment will be foreseen separately by law.

UNMIK / RREG / 2003/25 Official Gazette 6 July 2003

181

Article 77

HANDLING WITH THE REASONABLE REHABILITATION OF PERSONS COVERED BY DRUGS OR ALCOHOLS

Penalties against juveniles

According to the Juvenile Justice Code,

1. Measures that can be imposed on juveniles are: diversity measures and educational measures.

2. The sentences that may be imposed on juveniles are: fines, orders for general-benefit work and juvenile imprisonment.

Juvenile imprisonment can not be imposed for a term of less than six (6) months or more than five (5) years and is pronounced in months and years. The maximum juvenile imprisonment is ten (10) years for serious offenses punishable by long-term imprisonment or when the minor has committed at least two (2) offenses in the union, each of which is punishable by more than one imprisonment than ten (10) years.

Topic: Purpose of execution of criminal decisions

The purpose is to execute criminal decisions and other legal orders, as well as the manner of serving the sentences

With the execution of the criminal decision it is understood that the execution of the orders containing the final criminal decision and the decisions which, according to the Criminal Procedure Code, have an immediate execution with the aim of re-training the convicts, the restoration of the rights of the proceeded persons unjustly and the rights of legal entities affected by the criminal offense, affecting their prevention.

Execution of punishable sentences limits only those rights, to the extent and in time, as stipulating the criminal decision, respecting all other legally recognized rights, except as expressly provided in this law.

The execution of criminal decisions containing the punishment of imprisonment shall be executed in accordance with the Law on the Execution of Penal Sanctions;

According to LESP Article 4

Execution of penal sanctions aims at re-socializing and reintegrating prisoners into society and preparing for life and responsible behavior. Execution of penal sanctions also serves to protect the society by preventing the commission of other criminal offenses and restraining others from committing criminal offenses.

LESP-Article 5

Leading Principles

1. Penal sanctions are executed in a manner that ensures human treatment and respect for the dignity of each individual. A convicted person is not subject to torture or inhuman or degrading treatment or punishment.

2. Penal sanctions shall be executed in a fully impartial manner. There should be no discrimination on any ground such as national or social background, race, color, gender, language, economic and social status, political or other opinion and religion, belonging to a ethno-religious or linguistic community in Kosovo, property, birth status or any other status.

3. During the execution of the criminal sanction, the rights of the convicted person shall always be respected. These rights may be restricted to the extent necessary for the execution of criminal sanctions in accordance with the law in accordance with applicable law and international human rights standards.

Institutions for the Execution of Penal Sanctions

Starting from the constitutional principle of power-sharing, So the powers are divided by various mechanisms so that the powers or powers of these institutions are limited to the area in which the institution is determined to function. Hence, the Ministry of Justice oversees the execution of criminal sanctions through the established mechanism -

KCS - For the execution of judicial decisions for criminal sanctions and measures, these types of institutions are in place:

1. Types of correctional institutions are:

1.1. prisons for the execution of imprisonment and long-term imprisonment;

1.2. detention centers for the execution of detention and imprisonment sentences up to three (3) months;

1.3. women's prisons for the execution of imprisonment, long-term imprisonment and juvenile imprisonment imposed on women;

1.4. juvenile prisons for the execution of juvenile imprisonment;

1.5. educational and correctional institutions for the execution of educational measures for sending the minor offender to the educational-correctional institution;

1.6. hospital and prison ambulances for the treatment of detainees and convicted persons.

Constitutional and Legal Aspects of the Execution of Criminal Sanctions in Kosovo.

Constitutional Aspects:

The Constitution defines the general and special principles and mechanisms of

state organization. It creates government institutions by sharing powers

between them so that the rule begins with state mechanisms.

Usually, the powers granted to state institutions are restricted and an inter-control mechanism is established, thus maintaining the balance of

In order not to leave the judicial power, it should be said that an independent judiciary,

Then, for the functioning of the rule of law, the constitution of the Republic of Kosovo further provides:

Article 22 [Direct Application of Arrangements and Instruments

international]

Among the eight international instruments counted in the constitution, is also

(8) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Article 25 [Right to Life]

1. Everyone enjoys the right to life.

2. The death penalty is prohibited.

Article 29 [Right to Freedom and Security]

1. Everyone is guaranteed the right to freedom and security. No one shall be deprived of liberty except in the cases provided for by law and by a decision of the competent court, as follows:

(1) after the pronouncement of the punishment of imprisonment for committing the criminal offense;

(3) for the supervision of a minor for educational purposes or for his or her accompaniment to a competent institution under a lawful order;

(4) for health surveillance of the person who, because of the illness, poses a risk to the company;

(5) for illegal entry into the Republic of Kosovo or after a lawful order for removal or extradition.

5. Anyone who has been detained or arrested in violation of the provisions of this Article shall be entitled to compensation in the manner provided for by law.

6. The person serving the sentence has the right to complain about the conditions of deprivation of liberty, in the manner prescribed by law.

Article 31 [Right to Fair and Impartial Trial]

1. Everyone shall be guaranteed equal protection of the rights in the proceedings before the courts, other state bodies and holders of public powers.

Article 33 [Principle of Legality and Proportionality in Criminal Cases]

2. The punishment imposed for a criminal offense may not be more severe than it was prescribed by law at the time of commission of the offense.

3. The severity of the punishment can not be disproportionate to the criminal offense.

Article 34 [Right to Not Be Triangulated for the Same Works]

No one can be tried more than once for the same offense.

Article 55 [Limitation of Fundamental Rights and Freedoms]

1. Fundamental rights and freedoms guaranteed by this Constitution may be restricted by law only.

3. Restrictions on fundamental rights and freedoms guaranteed by this Constitution may not be made for any purpose other than those for which they have been designated.

5. The restriction of the rights and freedoms guaranteed by this Constitution does not in any way deny the essence of the guaranteed right.

One of the powers of the President under the constitution is as follows;

(29) proclaims individual pardon, in accordance with the law.

So give apology for the sanctions imposed on individuals in accordance with the special law on pardon.

Legal Aspects

The execution of criminal sanctions is dealt with in the Criminal Code of Kosovo, the Criminal Procedure Code and the Law on Execution of Criminal Sanctions.

Article 2

Scope of the law

1. Penal sanctions shall be executed in accordance with this law.

2. According to this law criminal sanctions are the main punishments, alternative punishments, additional penalties and judicial remarks.

3. Mandatory treatment measures are executed in a particular institution in accordance with this law.

Article 3

Provisions of this law apply to the execution of penal sanctions imposed by domestic and foreign courts, in accordance with the Criminal Procedure Code and international agreements.