Purchase of prison sentence in RS entity declared unconstitutional, NSRS must change the law, but different case law is emerging

(Patria) - The Constitutional Court of the RS has determined that the legal possibility of replacing a prison sentence of up to one year with a fine places wealthy convicts in a privileged position and, as such, is not in accordance with the RS Constitution.

This means that the National Assembly of the RS (NSRS) will have to delete or amend this provision of the Criminal Code, after which convicts in the Republic of Srpska will no longer be able to buy their way out of prison sentences.

The decision applies only to the entity's law, while nothing changes for convicts tried under the criminal laws of Bosnia and Herzegovina, the Federation of BiH, and the Brčko District. In those laws, the possibility of replacing a prison sentence of up to one year with a fine still exists, BHRT reports.

The Constitutional Court of the RS declared unconstitutional 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 could, at the request of the convicted person, be replaced by a fine.

"Since a fine is a sanction of a property nature, this 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 convicts who are of poor or weaker financial standing," the explanation of the decision states.

The Court considers that the disputed provision creates legal uncertainty and legal unpredictability in the application of the law, and that it is not in accordance with the constitutional principle of equality of citizens before the law.

Opinions in the public, as well as among legal experts, on this decision are divided. Lawyer Milan Malešević believes that the abolition of this provision contributes to fairness in the system.

"Such a norm has no place in the legal system. There is a possibility that perpetrators of misdemeanors, i.e., lesser offenses, end up in prison because they cannot pay the fine, while perpetrators of criminal acts, i.e., more serious offenses, do not have to end up behind bars if they have money," Malešević believes.

His colleague Branko Gudalo holds the opposite view and believes that the possibility of sentence replacement should be allowed for everyone, regardless of their financial status.

"We have, for example, the Law on Misdemeanors. For a misdemeanor, everyone pays fines equally, both rich and poor, and there is no difference. So, this institute should also be introduced here, so up to one year, whoever wants to pay does so, whoever doesn't goes to prison," Gudalo emphasized.

Lawyer Ifet Feraget believes that the FBiH should remove the possibility of buying out prison sentences, as has now been done in the RS.

"In the FBiH, the current solution is, in my opinion, bad, while it was better before when it stated that the court could replace a prison sentence of up to one year with a fine. At that time, the court assessed who the person was and under what circumstances the act was committed. Now we have a varied situation that does not correspond to the basic postulates of criminal law and the purpose of punishment," Feraget opines.

According to current regulations, one day in prison is worth 100 KM, i.e., one year is 36,500 KM.

For those who have that money, prison can be avoided. For those who do not, a prison sentence remains the only option.

The initiative for the constitutionality review was submitted by Banja Luka lawyer Dario Lj. Sandić in March 2025. In the initiative, he reminded that, according to the legal provision, one year in prison is worth 36,500 KM, which must be paid no later than within three months.

"Given that the average salary of citizens in the RS is about 1,400 KM (although the real average salary is about 1,000 KM), it is clear that the amount of 36,500 KM represents the salary for almost 2.5 years, and it is clear that a citizen earning an average salary cannot pay such a fine," Sandić stated.

In the initiative, he explains that this legal possibility cannot be realized by an unemployed person who 'illegally cut down a forest to provide firewood for himself and his family for the winter, but rather by convicts who earn more than the average salary, which is discrimination based on financial status.'

Accepting his initiative, the Constitutional Court of the RS stated in its explanation that this legal solution is problematic because the presiding court must accept the request of the convicted person without the possibility of deciding on it, taking into account the circumstances of the case, the severity of the act, the facts in the case, the personality of the perpetrator, and the like. In this way, the principle of fairness and legal certainty is called into question, CIN previously reported.