Electronic Monitoring Is Not the Only Problem Here - The Challenges of House Arrest Application Practice in the Czech Republic

• Author: Ivo Polanský
• Position: University of Finance and Administration
• Pages: 129-152

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

ELECTRONIC MONITORING IS NOT THE ONLY PROBLEM

HERE: THE CHALLENGES OF HOUSE ARREST APPLICATION

PRACTICE IN THE CZECH REPUBLIC / Ivo Polanský

JUDr. Ivo Polanský

Lector

University of Finance

and Administration

Estonská 500,

101 00 Praha 10-Vršovice

Czech Republic

as well as PhD. Student at

Pan-European University

Faculty of Law

Tomášikova 20, P.O.BOX 12

820 09 Bratislava

Slovak Republic

polansky@dbkp.cz

ORCID: 0009-0004-9943-6062

Abstract:

Over the past 25 years, few alternative sanctions have

received as much attention as electronically monitored house

arrest. In the view of relatively dynamic development of electronic

surveillance technologies and related ethical and legal issues at

stake, this interest continues to this day. In the Czech Republic,

electronically monitored house arrest was introduced in 2010.

Somewhat oddly, the electronic surveillance system had not been

implemented at the time. Yet, legislators and sanctions policy

makers placed high hopes in this form of punishment. In

particular, it was expected to significantly help combat the

relentless hypertrophy of the prison population. But the

expectations of sanction policy makers were not met due to the

reluctance of the courts to impose house arrest. This had

remained unchanged over the years, and opinions had begun to

emerge that the state's failure to introduce electronic monitoring

was primarily to blame. In 2019, electronic monitoring was

eventually implemented, but the number of sentences imposed

still did not increase. If the legislature's sanctions policy is not

translated into practice, its aims cannot be achieved. For this to

happen, it is essential that house arrest becomes more prevalent

in the structure of sentences imposed. Increased application

rates will not h appen spontaneously; certain steps need to be

taken to address the reasons for the current state of affairs and

to mitigate factors that negatively affect application practice. For

this purpose, such causes and negative factors must first be

identified. This paper therefore examines the importance of

electronic monitoring in terms of the application practice of

house arrest in the Czech Republic, and the main reasons for not

imposing house arrest. Building on these findings, it offers

suggestions that would contribute to more frequent imposition of

house arrest in appropriate cases.

Submitted:

27 April 2024

Accepted:

24 June 2024

Published:

07 July 2024

Key words: Sentencing; Alternative Sanctions; House Arrest;

Electronic Monitoring; Application Practice; Criminal Law; Czech

Jurisdiction

Suggested citation:

Polanský, I. (2024). Electronic Monitoring Is Not the Only Problem

Here: The Challenges of House Arrest Application Practice in the

Czech Republic. Bratislava Law Review, 8(1), 129-152.

https://doi.org/10.46282/blr.2024.8.1.860

130

I. POLANSKÝ

BRATISLAVA LAW REVIEW

Vol. 8 No 1 (2024)

1. A BRIEF HISTORY OF THE ORIGIN AND DEVELOPMENT OF ELECTRONICALLY

MONITORED HOUSE ARREST

In the 1980s, a modern type of punitive measure began to appear in sanctioning

systems, referred to as house arrest in the Czech Republic, punishment under electronic

monitoring in Belgium (Beyens and Roosen, 2013), home confinement in the USA (Austin,

Dedel Johnson and Weitzer, 2005), home detention curfew in Scotland (Graham and

McIvor, 2015), and intensive supervision with electronic monitoring in Sweden (Bishop,

1995). House arrest and electronic monitoring ('EM') appear across continents in a variety

of concepts and forms, depending on the specific objectives of the sanction policy (Black

and Smith, 2003; Maxfield and Baumer, 1990). They appear as a means of replacing

custody, as a condition for the suspension or interruption of a prison sentence, as a form

of execution of a prison sentence or part thereof, as a stand-alone measure, i.e. as an

autonomous alternative/community sanction, or as a condition or one of the conditions

of another alternative/community sanction (Gainey and Payne, 2000; Haiskanen, Aebi,

Brugge and Jehle, 2014; Rodrigues et al., 2022). They therefore do not represent a single

type of sanction or measure with a uniform concept an d the same methods of

application, although there are signs of harmonisation, which the Council of Europe in

particular is seeking (Dünkel, Thiele and Treig, 2017).

Understandably, there is no uniform definition of house arrest, which is explained

by the different conceptions of alternative sentence across countries, as well as the

varying conceptions of electronic monitoring. In some places, it is considered as a kind

of punishment itself, in others as a “mere monitoring tool” (DeMichele, 2014). Thus,

various definitions of house arrest appear in the literature. Hurwitz (1987) defines house

arrest as a form of intensive supervision characterised by an obligation to remain in the

offender's residence for a significant number of hours with permission to leave the

dwelling only for explicitly stated and pre-approved purposes, and this obligation is

enforced by electronic monitoring through a device placed on the offender's ankle.

Petersilia (1986) refers to court-imposed punishment in which the offender is legally

ordered to remain confined to his or her ow n dwelling. Brown and Elrod (1995) describe

house arrest as a type of imprisonment in which a person is confined by the court to his

or her home or other designated location, such as a home or workplace, and the offender

is required to wear an electronic monitoring device that tracks his or her location and

reports it to a monitoring centre.

Cum grano salis it is possible to include house arrest under the term electronic

monitoring, however “house arrest” and “electronic monitoring” cannot be considered the

same. The most appropriate definition is that by Hofer and Meierhoefer (1987), who

define house arrest as any judicially or administratively imposed condition that is part of

a court-imposed sentence and that requires the offender to remain at his residence for a

specified part of the day. Such a conception of punishment is one of the oldest ever. As

far back as the Roman Empire, house arrest appears as liberia custodia, where high-

ranking persons were placed under the supervision and guard of the senator's house. In

the first c entury, the apostle Pa ul was placed under house arrest for two years, pa ying

rent and earning income as a tentmaker while serving his punishment. Among other

historically famous personalities, Galileo Galilei (for his for heretical heliocentric ideas) as

well as Napoleon Bonaparte, Nikita Khrushchev, Rafael Videla, and August Pinochet were

sentenced to house arrest (Strémy and Klátik, 2018). In the Czech Republic, house arrest

also appeared in various historical stages, legally regulated in Act No. 117/1852 Coll., on

Crimes, Offences and Misdemeanours, which was adopted on the basis of a reception

norm after the establishment of the Czechoslovak Republic in 1918 and remained