PRISON REFORM: ATTEMPTS AND ACHIEVEMENTS
PENAL REFORM INTERNATIONAL
and “DONETSK MEMORIAL”
PRISON REFORM: ATTEMPTS AND ACHIEVEMENTS
Compiled by A.P.Bukalov
The book is published with assistance of the Penal Reform International, Department for International Development/British Know How Fund, the EU programme TACIS “Development of the Ukrainian Human Rights Protection Informative Network”, printed on the equipment donated by the National Endowment for Democracy (USA).
This is a special issue No.46 of the informative-analytic bulletin “Prava ludyny”. It contains materials of the international seminar “Prison reform in post-totalitarian countries” (Donetsk, November 1998). The seminar was devoted to the exchange of the experience of reforming penitentiary systems, to the practice of co-operation of prison administrations and public organizations in various countries, to the interrelation of the openness of prisons and development of the civil society in post-totalitarian countries. The book also contains short statistical data on penitentiary systems in the countries whose representatives took part in the seminar. They were heads of prison services and representatives of NGOs from 17 countries of the Central and Eastern Europe and the former USSR.
From the editor
Danuta Gaydus. The Polish way of reforming prison system
Monika Platek. Public influence on prison reform in Poland
Ian Malets. Ombudsmans control over observance of rights of incarcerated in Poland
Pavel Nasilovski."Help to help oneself" programme.
Petr Vasylev. Status of penitentiary administration in Bulgaria
Marinel Nemonianu. Openness of prisons is an important element of the prison reform
Yuri Ilchenko. Show me your prisons and I shall say in which society you live
Lydia Smirnova. How reforms of the prison system are carried in Latvia and relations with prison systems of Scandinavia
Ionas Stashinskas. Do we still have the GULAG?
Aleksandr Ptashinskiy. Problems of reforming of the penitentiary system of Ukraine
Georgiy Popov. Legislative activities of the Supreme Rada and reforming the penitentiary system
Georgiy Radov. Prison as a peculiar kind of social clinic
Vasiliy Trubnikov. On conception of penal-executive legislation
Anatoliy Stepaniuk. Re-organisation problems of Ukrainian penitentiary system
Sergey Skokov. Reforming of the penitentiary system and preventing recidivist crime
Aleksandr Abarinov. Correcting labour colonies: progress or..?
Anatoliy Matsko, Valeriy Khomich. Reform of the penitentiary system must begin with changing the system of punishments
Evgeniy Zakharov. Problems of reforming the penitentiary system of Ukraine and the draft of the Penal Code
Grigoriy Maryanovskiy. The role of public organisations in reforming the prison system
Gennadiy Staroverov. Stages of the prison reform in Russia
Sergey Shimovolos. Penitentiary establishments in the charge of public organisations: experience of Nizhniy Novgorod region
V.Moraru. Penitentiary system of Moldova
Azer Mirsalekh ogly Seidov. On the road to law-abiding society
Eldar Zeynalov, Elmira Alekperova. Situation in Azerbaijanian penitentiary establishments (an extract from the report of the Azerbaijanian centre of human rights)
Nikolay Arustamian. Penitentiary policy in Armenia
Toktamysh Osmanov. Situation in the prison system of Kyrgyzstan and activities of human rights protection organisations
Kazakhstan International Bureau of human rights. Situation in penitentiary establishments of Kazakhstan (Extract from the report presented by Penal Reform International)
Olga Mamedova. Changes in the penal policy in Turkmenistan
Appendix 1. The number of incarcerated per 100 thousand in various countries
Appendix 2. Information on organisers of the seminar
FROM THE EDITOR
On 10-12 November 1998 a three-day international seminar “Prison reform in post-totalitarian countries” was held in Donetsk. The participants were heads of prison directorates and representatives of non-government organisations (NGOs) from 17 countries of Central Europe, former Baltic republics and the CIS.
Opening the seminar, Leonid Kirichenko, the head of the Donetsk region administration, remarked that our society is seriously worried by the growth of crime, but the public pays insufficient attention to the problem of punishing criminals and their subsequent return to the society. One seventh of the total number of the incarcerated in Ukraine carry out their punishment in Donetsk region, so the fact that our seminar is held in Donetsk is natural.
Then the reports were delivered. One of the main topics discussed at the seminar was the problem of transfer of the prison system from one ministry to another. In several countries the prison system is already governed by the Ministry of Justice, but in many others the penitentiary system is still controlled by the Ministry of Interior. When the post-totalitarian countries entered the Council of Europe, they took the obligation to transfer their penitentiary systems from the Ministry of Interior. Ukraine promised to have transferred the penitentiary system to the Ministry of Justice by the end of 1998. This transfer is difficult, and it is made more complicated by the hard economic situation in the post-totalitarian countries. That is why the experience of those countries that have already passed a part of this difficult road is very interesting and helpful for the participants.
Poland has achieved noticeable successes in reforming the prison system. Prisoners there are kept in normal conditions, many of them even have the opportunity to leave the prison for a short time several times a year. The number of the incarcerated has diminished in recent years (without amnesties in the last five years) practically by two times, being at present 59 thousand or about 140 incarcerated for 100 thousand of population. To compare, this index in Ukraine is equal to 410 and in Russia to 650.
Estonia, Romania and Latvia were rather successful too. Heads of the prison systems of Bulgaria, Azerbaijan, Armenia, Russia and Latvia shared their experience in solving the problems. Representatives of NGOs of Kyrgyzstan, Lithuania, Belorus, Armenia, Russia and Turkmenistan spoke about their participation in solving problems of the prison system. In the course of the discussion members of NGOs and state structures exchanged ideas on the realisation of joint projects, for example, of publishing an informative bulletin or organising exchange of practical workers between penitentiary establishments of, say, Ukraine and Poland.
General Georgiy Radov, the first Vice-Rector of the Kyiv Institute of Interior, estimated the fact that the seminar is held jointly by state structures and public organisations as an important progress in the development of the Ukrainian society. He said that the problem of reforming criminals is not a task of the prison system, but of the entire society. He pointed out that Ukraine had not decided yet what is the main goal of her prison system: to execute the punishment only or additionally to make repent those who violated the law.
Aleksandr Ptashinskiy, the first deputy of the head of State Penitentiary Department of Ukraine, told the participants of the seminar about an original version of solving the problem of transfer of the Ukrainian penitentiary system from the control of the Ministry of Interior. He admitted that the difficult economic situation in the state does not permit to satisfy the international demands as to the living conditions of the incarcerated and in guaranteeing the normal conditions of work for the personnel. Georgiy Popov, the first deputy of the chairman of the Supreme Rada Committee on human rights, national minorities and interethnic relations, spoke on the legislative work as an important element of reforming the prison system.
It should be noted that holding such a well-represented forum not in the capital, but in a regional centre, enabled the representatives of the public and press, heads of penitentiary establishments of Donetsk region, as well as teachers and students of Donetsk Institute of Interior to take part in the discussion of important problems with which our society comes across.
On the second day of the seminar the participants visited one of the local penitentiary establishments — a colony in the town of Gorlovka. The participants could do several objects on the territory of the colony, could talk with the incarcerated. In Ukraine the prisons are not as open as, say, in Poland, but the progress is obvious.
A short informative bulletin on the seminar was published. The seminar was initiated by the local public organisation “Donetsk Memorial” and the international organisation “Penal Reform International” (Great Britain). The seminar was sponsored by the fund “Know how” of the Great Britain embassy in Ukraine and by the Donetsk branch of the international fund “Vidrodjennya”. The successful work of the seminar owes to the support of Donetsk region administration, of the Ukrainian Penitentiary Department and of the local public organisations “Amnesty International” and the Committee of Ukrainian voters.
Chairman of the Council of “Donetsk Memorial”
Population 40 million
Number of incarcerated 59 thousand
Number of incarcerated per 100 thousand
of population 145
Number of penitentiary establishments
(preliminary prisons included) 159
Penitentiary system is governed by the Ministry of Justice
Doctor of Right, Regional
director of Penal Reform International, Warsaw
THE POLISH WAY OF REFORMING PRISON SYSTEM
For several years - from 1990 to 1993 - I worked in the penitentiary service, now I am a professor of penitentiary right.
When we began prison reforms in Poland, we pondered what is the basis, what are the social reasons that send people to prison? And then, what must a prison achieve? A prison is the place controlled by law. Here a prisoner must look back and try to understand why he has been punished and imprisoned. Then people must think how they will live in future. I am more interested in the latter.
A prison is a part of the society, and if it is so, then the usual rules of the life in the society must be obeyed. We understood that we had to pass a long way to achieve this goal. We suggested the model of the prison where the life conditions are maximally close to the living conditions at large. One of the main conditions to do it successfully is to change the interrelations between prisoners and the prison personnel. We could not exchange the personnel for other people, but we had to work on improving the moral level of the present personnel.
When, as a head of the prison system of Poland, I first met with prison wardens, I told them that I shall co-operate with them under three conditions: sobriety, honesty and activity. The main motto in our work will be such: "Better to have one hundred problems with one incarcerated than one problem with a thousand incarcerated". And we manage to do a lot in practice.
What were our starting conditions? I came to work in the prison system after we had a wave of strikes in prisons. Then the number of prisoners was 100 thousand, i.e. 300 incarcerated per 100 thousand. We started our work at the moment, when the prison administration lost control over the prisoners and they practically controlled prisons themselves through a certain layer of amoral people. Besides, we inherited very old prison buildings, some of which had been built in 13 of 14 centuries. We had many prisons containing more than one thousand prisoners.
We began the prison reform, being very poor.
I want to point out that it is not very important who would head the prison system while its reforming. The head can even be a philosopher. What is really important, is the composition of the personnel. We started to prepare personnel most carefully. Many of them worked on probation abroad. Later many foreigners came to us to borrow our experience. As a result, many suitable people came to work in prisons. Another problem we came across with was to introduce more democracy into prison, a place where it is difficult to be a democrat. Solutions of many questions we transferred to the competence of wardens, but they got the responsibility for the results. At the same time we had to change the organisational structure of the prison system. Previously the system was separated into 16 regions. Every region was self-ruled and hired people independently from state administration. Upon the whole, we retained the system with several corrections, the centre co-operated with regions and paid attention to their suggestions. With some surprise we learned that the local workers have a lot of ideas: communication with them often turned to a brain storm.
Now I want to dwell on very important aspects. The prison must be open, it must be open in two senses. First, a prison must be open to public control. The personnel and administration must treat representatives of the public benevolently. It is quite natural that people working in the prison cannot be too self-critical. They must know the opinion of outside observers. The other sense of openness concerns the incarcerated. Not only visitors are allowed, the prisoners are permitted to go out of prisons for short periods. Totally: more than 250 thousand of permissions to leave the prison are handed per year.
What have we achieved? First of all, the prisons operate under the public control. The life of prisoners have become more relaxed. There are less grids and more communication between the incarcerated and the personnel.
You may ask the question: has the democratisation decreased the security of prisons? The fact is that the security has considerably increased.
Professor of Right of Warsaw University
PUBLIC INFLUENCE ON PRISON REFORM IN POLAND
I shall speak about three things.
At first I shall tell about the curriculum which operates at universities, schools and in prisons. It is titled "Right for every day". Then I shall tell about a novel feature that appeared in the Polish juridical practice and is fixed in our legislation; that is mediation. At last I shall tell about the changes in the Polish legislation that regulates interrelations between the prison system and NGOs.
I am very indebted to General Ptashynskiy for his permission to us - a big crowd - to visit a prison. Certainly, it had been a little refreshed, but it is normal: when we invite guests, we also clean the flat. Such visits are very important, because in the course of such visits we test practically the subjects which we speak about: on reforms, on punishment goals, on the function of prisons. I do not know why we were not allowed yesterday to visit the prison WC. May be a visit there was not listed in the agenda or may be it was extremely unhygienic? In the latter case all our words about humanism, democracy and punishment goals remain just words.
The society and the incarcerated are closely interconnected. One of the reasons is that the incarcerated have mothers, daughters, sisters, wives and fiancйes, who live at large.
As I have said, we have the curriculum "Right for every day". The main purpose of this curriculum is to bring a person closer to right. The curriculum is aimed to show one which legal procedures exist and how to use them. We often speak about rights, but actually we do not possess any rights if there exists no procedures that enable us to use these rights. If there are no such procedures, then the rights are not rights but good intentions.
As is known, after a lecture listeners memorise about 5% of its contents. If they read the text, then they will memorise up to 10%. If one adds an audio or video cassette, the efficiency will grow up to 20%. If the lecture is followed by demonstration, its content is mastered by 30%. If the contents are discussed in a group, then up to 50% will be mastered. If you manipulate with the knowledge practically, you will learn 75%, and if you teach others, you will learn about 90%. It was long ago when Confucius said: I listened - I forgot, I saw - I memorised, I did - I understood.
We do not intend to show whether a law is good or bad. A man in the street must be shown how to use the laws. For example, if a militiaman detains me, he must introduce himself and explain for what he is going to detain me. And the reason for it may not be, for example, my challenging appearance. A militiaman must have a good juridical argument to detain me. My students and school pupils know this. We use the right and we explain it at school, at a university, in a prison.
There is another aspect of this work. The first: a young barrister must be able to tell his clients about their rights. Until a student cannot explain such ideas by simple normal words, without juridical jargon, the barrister has not mastered laws. For students, their participation in our programme is also learning how to work practically.
I would not dare to assert that the goal of our studies is lowering the level of crime or something like that. But during our studies, at school as well as in a prison, we treat people equally. We do not make the difference between convicts and people with high morals. Students who come for one or two hours a week to such studies often hear from school pupils and incarcerated that the latter are listened to with respect for the first time in their life. It is very important.
Now I would like to speak about mediation. We speak much whether the incarcerated must work in prisons. What a Soviet penal colony had been before? It was a source of cheap labour. But under capitalism the convicts have no work and they will not have it in future. It was a cheap labour, now it is unneeded labour. So one of the reasons to keep people in prisons has disappeared.
However, we have forgotten the victim of the crime. Say, someone was robbed of his money. After the robber is incarcerated, the victim does not get back the money, moreover, the victim pays taxes to keep the robber in the prison.
You may not agree with me, but the criminal right will never solve problems of the society. All we can do is to try our best to make the criminal right create less problems that we already have. The criminal right exists to prevent undesirable actions. But when they do not know how to solve a problem, they make another criminal law. As a result, a victim appears with the specific problems. In Poland all began with a dream. Three women insisted on mediation, that is on the opportunity to seat the victim and the criminal face to face and to try to solve their problems themselves, without inputting it to the cumbersome machine of justice. The three women brooded how to do so that a victim would get a fair compensation. And now our legislation admits that people by way of mediation under the observation of a judge may attempt to find a mutually admissible solution, which later must be confirmed by court. At first our judges protested, arguing that they lose power. But what is done is correct. This is a sort of the revolution. This means that justice is handed to people themselves. What is returned now was taken in the past from the people by the state. The judges are right: this is a revolution and they have lost some of their power, but they understood that a lot of cases remain in their hands, which they hardly can manage, and they agreed to mediation.
This method works well in the framework of "Patronage", which is an NGO created to aid the incarcerated. This organisation hires former convicts too, and this is good, because sometimes they understand the problems better that outsiders.
The third, the most important element is the changes in our laws. Now they contain statements, according to which NGOs may do much for the incarcerated. Day in and day out we may solve, jointly with the warden, practically any questions. They may do what you dream of. This law was adopted one year ago. I am a member of the NGO "Polish society of legal education". This organisation works not only in Polish prisons. It works on international programmes, we co-operate with administrations of foreign prisons.
An important role in the observation of laws in prisons is played by the ombudsman. Our ombudsman at first showed that such laws exist in Poland which no one ever dared to apply, and then he demanded their application. The ombudsman also demonstrated that there are no laws which would prohibit public organisations to do what they did.
We were helped by prison administrations too. Some of workers of these administrations started reforms even before the crucial change of the system. And when the system changed, many more liberal changes were permitted. When Danuta Gaydus headed the prison system, she brought to prisons culture and respect. It became impossible to treat a man like a dog. By the way, dogs in prisons are treated much better nowadays.
In conclusion I would like to ask a rhetorical question: must a special law be issued to improve the conditions in the WC which we yesterday at last managed to visit?
I believe that those laws which already exist must be used better. It will permit us to improve the life of the prison personnel and through that the life of the incarcerated.
Doctor of Right, the former Head
of the Penitentiary Department at Ombudsmans office
OMBUDSMANS CONTROL OVER OBSERVANCE OF RIGHTS OF THE INCARCERATED IN POLAND
For ten years I have been working in the ombudsmans office, being responsible for the observance of human rights with respect to the incarcerated. The law on the ombudsman was adopted in the middle of 1987, i.e. approximately two years before the change of the social system in Poland.
The penal policy in Poland for many years was extremely repressive. Since 1 September 1998 a new Penal and Penal-Executive Codes operate in Poland. These codes permit to conduct a more reticent and rational penal policy. However, new concepts are seriously opposed by the public and some politicians who support repressive tendencies. Many citizens consider that the more cruel is the law and conditions of the lives of prisoners, the safer will be the society. Some of the protesters demand to limit or even to liquidate leaves, conditional release, they demand to take TV-sets from cells, etc. All such demands are mainly based on the conviction that this will lead to diminishing crime. Most people do not understand that the recent growth of crime is mainly due to the changes that occurred in the society, such as weakening of law-enforcing agencies, unemployment, smuggling of immense quantities of alcohol, more accessible firearms, etc. So, many changes in prisons have been made in spite of the public opposition. Now we must inform the society in detail how a prison system operates and how life looks on the inner side of the bars.
For the period of 1956-1989 contradictory tendencies were typical for the prison policy. On the one hand, the process of modernisation and humanisation began. The prison service invited psychologists. The personnel was improved, the education of the incarcerated was widely implemented, treatment of drug addicts was introduced. There were steps back, but upon the whole the progress was obvious. On the other hand, the incarcerated were beaten and tormented both by the personnel and by the specially picked convicts. Violation of convicts rights resulted in various protests, which even came to rebels.
The main factor affecting the observance of human rights of the incarcerated is the behaviour of the prison personnel. It is rightly said that "… hardness of a punishment is determined not as much by court but rather by those who execute the punishment. This is the prison personnel: they actually determine the degree of rigidity of the prison regime".
Generally speaking, there exist two regimes of punishment: the formal one following from the rules and the actual one dependent on the personnel. In a law-governed state these two regimes must coincide, but it is not always so. Sometimes the personnel maltreats the incarcerated contrary to the existing rules. To do this, for example, it will suffice to leave without guard a convict who has problems with his cellmates. The prison subculture provides a serious threat for the rights of the incarcerated. Its essence lies in cruel persecution and exploitation of weak convicts, in cultivating the prohibition of any co-operation with the personnel. The Ombudsman started his activities in Poland in 1988, and he had to exert energetic measures directed at respecting rights and freedoms of the incarcerated. About 3 thousand complaints, requests and applications are sent to the ombudsman per year. The written communication with the Ombudsman is not censored by the prison personnel. The most part of such complaints concern medical and general treatment. Some of the complaints are outside the competence of the Ombudsman. Such are, for example, requests to get interruption of the incarceration, since such questions enter the competence of judges or prosecutors. In order to reduce the number of such complaints we placed written explanations in prisons, but it did not result in the reduction of complaints.
The most part of complaints the Ombudsman directs for checking to judges and the supervision of prison service. In order to check the objectivity of medical diagnoses a contact with physicians is set. A letter of the Ombudsman to the physicians serves as a pass to the prison.
The Ombudsman has no right to check facts concerning the judicial practice and the ODA. However, he can demand from the proper bodies any information on the state of the case and he can turn to the competent organs when the ODA lasts too long or if the court or the prosecutors office does not respond to the letters of the incarcerated.
The Ombudsman and his assistants have the unlimited right of access to all penitentiary establishments. This opportunity is used not only for checking individual cases, but also for the general control of the rights of the incarcerated. On the arrival of the Ombudsman or his representatives the prison administration is warned not earlier than one day before the visit. After the arrival the prison administration is obliged to give any information on the current work and arising problems. Usually the inspecting group visits several scores of cells selected randomly and also services common for all incarcerated, such as kitchen, chapel, library, laundry, etc. Then 10% of the incarcerated are chosen randomly, and they are questioned, without the prison administration, according to the prepared questionnaire. It concerns treatment of the incarcerated, nourishment, medical aid, appointments, occupations, etc. Such questioning is made quite confidential. The inspection results with conclusions and suggestions are given to the prison administration, which has the right to include its remarks to the document. If we find essential violations, we do not hurry with administrative measures; we try to work with the personnel. The copies of the inspection conclusions are directed to the local inspector of the prison service, the chief judge of this territory, the Central Directorate of the prison service, the Helsinki Committee and the Main Directorate of the patronage association.
What does the Ombudsman do when he finds out violations of human rights? First of all, as we have pointed above, the Ombudsman addresses the administration of that prison where the rights of incarcerated are abused. Whether situation is more complicated, for instance, the Ombudsman finds out a violation of law, then he turns to the competent penitentiary organs and to prosecutors office. If some law impinges on the rights of the incarcerated, then the Ombudsman has the right to turn to the Constitutional Court with the request to change the law. For example, it happened so with the Amendment to the Penal-Executive Code which admitted to pay the labour of the incarcerated by smaller remuneration than the minimal pay. If the law is ambiguous, the Ombudsman has the right to turn to the Supreme Court or to the Constitutional Court for the elucidation of the law. At last, if the solution of the problem does not come within the competence of the Ombudsman, but he sees that some measures should be taken to protect the rights of the incarcerated, then the ombudsman addresses other authorities or initiates some other steps. For example, in 1993 the Ombudsman raised a question and initiated its discussion at a specially held conference; the question under discussion was how to diminish the number of then incarcerated in the country without decreasing the security of the society.
Ombudsmans recommendations make a noticeable part of his annual report to the Seym; his problem recommendations are described in the published bulletins. Besides, during the three last years three volumes titled "The status and essential problems of the Polish prison system" were published. Both theoretical and practical statements are discussed in these volumes. These publications are distributed among MPs, higher educational establishments, human rights protection organisations, and, certainly, they are directed to the prison service. Since the very beginning of his activities in 1988 the Ombudsman paid special attention to the protection of the incarcerated from the illegal actions of the prison personnel. We expected that vestiges of the totalitarian customs might appear under new conditions, and we proved to be right. Selective polls in 1988 showed that 7% of the pollees were beaten by the personnel, 32% complained that the personnel used bad language addressing them.
The Ombudsman reacted sharply on each complaint of beating. The information about such cases was always sent to the local prosecutors office. In the course of time the number of complaints of beatings diminished sharply. Our inspections showed the same. The new operating rules establish the form of addressing the convicts.
Before the transfer of the prison system to the Ministry of Justice in 1956 the ODA was carried out in prisons on a wide scale. Such order of things affected negatively the general atmosphere in prisons, since stool-pigeons were recruited from the most immoral convicts. Officers in charge of such activities summoned convicts and gave speeches of the type: "We consider convicts as morally corrected if they denounce each other; those will be awarded by leaves, better jobs and the support in requesting the conditional release". Those who took the bait often invented facts, thus slandering their cell-mates.
The Ombudsman protested against such methods of the ODA, and in 1989 the ODA in prisons was abolished.
In the beginning the Ombudsman found very inadequate living conditions in prisons. The cells were overcrowded, it happened that in some cells, except the floor under bunks, one convict had one square meter of the area. This situation was camouflaged in the reports by counting the volume of cells in cubic meters. Since in old prisons the cells were rather high, the volume appeared satisfactory. The Ombudsman suggested the norm in terms of area: three square meters per one convict. It is much less than stipulated in the states of the Council of Europe, where this norm is 6-8 square meters. Nonetheless, three square meters is also obviously progressive compared with the situation in the past.
In March 1992 the Ombudsman handed a suggestion to the Minister of Justice; he proposed to close completely or in part 14 penitentiary establishments in which convicts were kept in cells without canalisation. The Minister of Justice did not accept this suggestion since its realisation should result in an abrupt growth of overcrowdness. But soon some finances were found to establish canalisation systems in many prisons.
Pavel Nasilovski, Director of the Institute of Social Service named after H.C.Kofed in Sedltsy
"HELP TO HELP ONESELF" PROGRAMME
The programme mentioned in the heading is carried out by the international Polish-Danish NGO founded in July 1997. This association became the main result of many years of co-operation of Danish Helsinki Committee with the cultural centre in Sedltsy prison. The initiator of this association was the author of this report, a pedagogue and an officer of a penitentiary establishment.
We have created an original programme of reforming antisocial elements through acquiring culture and knowledge. Our programme was expanded by the materials of the Danish programme "Help to help oneself". This programme has been realised during 70 years in Kofeds school in Copenhagen. This programme differed from similar Polish programmes and suggested innovating methods.
Practically, the Danish programme consists in fulfilling many professional, reforming, socio-technical, therapeutic, auxiliary, psychological and juridical activities that focused on the anti-social element. The main idea of the method lies in permanent activation of the objects consciousness. The development of consciousness is the only efficient method to stop falling and to overcome any crisis.
Programmes, forms and methods of work at the Institute of Social Service named after H.C.Kofed in Sedltsy
Our work is carried in two main directions:
- educating programme;
- guardian programme.
The educating programme includes:
1. Free professional courses of computeristics.
* From 11 May to 30 September 1998 about 400 students learned this programme. By the end of the year we plan to teach 600 more students.
2. Free teaching of English.
* Since 6 February 1998 up to present time 100 students in ten groups learned English.
Guardian programme contains:
1. Consultations for victims of violation, including violation in the family.
* Up to now we have observed 46 families and a large group of individuals needing urgent help.
* A group works for the therapy of women - victims of rape.
2. Consultations for alcoholics and drug-addicts (mainly for youth).
* 39 families are permanently consulted, as well as many individuals needing urgent help.
3. Juridical consultations.
* Up to now juridical help is granted to 170 clients.
4. Telephone hotline.
* Up to now more than 800 cases have been treated.
We have created a kind of school which develops mental capabilities and individuality of students. Thus, we have created the situation with the alternative education beside the standard one which is given in prison. All kinds of education are free of charge. Our efforts are intended to the following groups:
jobless youth: graduates of vocational schools, high schools and young people without education; persons who lost their jobs and cannot afford change of qualification; former convicts, conditionally condemned or conditionally released; alcoholics and drug-addicts; homeless tramps; victims of rape; people living in a pathological environment; beggars.
Population 9 million
Number of incarcerated about 10 thousand
Number of incarcerated per 100 thousand
of population 110
Penitentiary system is governed by the Ministry of Justice
Deputy Head of the Main Directorate of penitentiary system
STATUS OF PENITENTIARY ADMINISTRATION IN BULGARIA
A penitentiary system is unable to fulfil its functions if it has no high-skilled and properly oriented staff. Resocialisation of the convicts, who are frustrated and disappointed, demands the proper personnel capable of forming convicts customs and abilities for law-abiding behaviour after the release.
The military organisation of the administration of the penitentiary system prevents the achievement of this goal. The fact that the prison personnel belongs to police structures causes the feeling of threat in their contacts with convicts and predetermines indifference to the problems of the incarcerated. A similar attitude is formed among convicts with respect to the personnel: they cannot understand why the people who guard them and punish them can simultaneously assist and educate them.
The position of the personnel is rather delicate. Occupying a position between freedom and captivity, these people do not want just to execute orders. They are eager to participate in reconstructive resocialisation which assumes not only obeying orders, but taking part in shaping the policy.
The role of penitentiary administration in preventing crime essentially differs from that of police organs, since the prison personnel deals with criminals, who are already captured and punished. The efficiency of work of the prison personnel is assessed by the quality of prophylactics and preventing recidivism.
The activities of the penitentiary administration do not affect the situation with crime directly. To reduce it is the main task of police structures. The separation of the penitentiary administration from police promotes the formation of the system of priorities in the penitentiary system, giving the top priority to resocialisation.
The European penitentiary rules give preference to the civil organisation of the penitentiary system: Section 2 of Article 54 reads that “the personnel, as a rule, consists of professional civil workers who have the status of civil servants”.
Since the beginning of the present century the administration of the penitentiary system has come eight times from the Ministry of Justice to the Ministry of Interior and back. If one analyses attentively those periods when the penitentiary system was governed by the Ministry of Interior, one sees that the prison system suffered from serious instability. In these periods the prison system got an additional task to co-operate with state organs in solving political problems. In particular, the penitentiary system was governed by the Ministry of Interior from the beginning of WW2 to 1956 and from 1977 to 1990. Regardless of the Ministry which the penitentiary system obeyed, it was a rather autonomous organisation: it had its own budget and its own base for the preparation of personnel.
The first stage of the subsequent reorganisation began in April 1990 when the general government of the penitentiary system was transferred to the Ministry of Justice. The penitentiary system inside this ministry got a special status. Its activity was defined as a final link in punishing criminals. The prison system is not a part of the judicial power, since it does not enforce justice, so its natural place is executive power in the Ministry of Justice.
The preparation of personnel of the penitentiary system has been completely separated from that of police. The curricula were enriched by such new topics as forming of communicative abilities for executing corrective and consultative work with convicts, the ability to work together with pedagogues, psychologists, psychiatrists; they studied international standards of treatment of convicts, etc. An original system was created for choosing the staff, of assessing their physical and psychological abilities for the work in penitentiaries.
The operative and detective activities (ODA) in the establishments of the penitentiary system are carried by the police. The prison personnel assists in the ODA, but the control and co-ordination of the timely interception of criminal intentions of the convicts is the duty of the police. Such a separation of duties answers the task of the Ministry of Interior and the prison administration.
Parallelly with the transfer of the prison system to the Ministry of Justice the renovation of the legislative base began. As a result, the legal conditions of the convicts changed, and they got better opportunities for contacts with mass media. Volunteers for reforming and educating prisoners have been attracted, as well as representatives of religious confessions for providing spiritual and moral aid.
In 1998 the second stage of forming the civil administration in the penitentiary system began. The matter was started by introducing changes and amendments to penal-executive laws. As a result, a part of the prison personnel was demilitarised. Military ranks were retained only for those members of the personnel who guard the establishment directly. Their employment and discharge is done by the Ministry of Justice. Other prison servicemen, including the personnel of the Main Directorate, social workers, medical personnel, administrative services, have been demilitarised and become civil servants. But they retained the addition to their wages and the same pensions as the military. This assisted to retain the competent specialists. At the same time the role of the personnel increased not only in executing the decisions, but also in developing the decisions. Upon the whole, it corresponds to the international standards.
Certainly, not all programmes related to the personnel activities are solved optimally at this stage. It is necessary to consider questions connected with the status of preliminary prisons which, up to now, are outside the system. It is the function of convoying prisoners that is still executed by police. There is no adequate legislative regulation of the legal status of the accused yet, as well as some important aspects of the activities of the medical personnel in penitentiary establishments. Such are the questions concerning the compulsory of voluntary medical treatment and the choice of the physician. It is difficult to develop laws for the duties of the medical personnel in critical situations, when compulsory measures are needed, for example, during hunger-strikes, during refusals from treatment and active resistance to it, in suicidal attempts, in aggressive states of mentally unbalanced convicts, etc. These questions make only a part of the programmes connected with the state of the prison personnel. They all wait their solution in future.
Population 23.7 million
Number of incarcerated (on 1 January 1998) 45 121
those under investigation 17 464
convicted 25 932
in the reforming centre 1324
Number of incarcerated per 100 thousand
of population 190
strict regime prisons 6
prisons with closed and semi-closed sections 24
for women 1
for minors 1
Besides, there are:
reforming centres 2
prison hospitals 3
These establishments contained
(on 1 January 1998) places 31 522
in prisons 29 000
in reforming centres 1148
in hospitals 1374
Penitentiary system is governed by the Ministry of Justice (since 1991)
General director General Directorate
of penitentiary establishments Ministry of Justice of Romania
Population 1.5 million
Number of incarcerated on 1 February 1999 4328
under investigation 1242
criminal arrest 17
Number of incarcerated per 100 thousand of population 288
Number of penitentiary establishments 9
Penitentiary system is governed by the Ministry of Justice
Main specialist of Prison Department of Estonia
SHOW ME YOUR PRISONS AND I SHALL SAY
IN WHICH SOCIETY YOU LIVE
When revolutionary processes started in Estonia, the first step after getting independence was an attempt to integrate into European structures. Experts from the Council of Europe visited Estonia in order to inspect how human rights are observed in Estonia, what kind of prisons we have. Once Winston Churchill said: “Show me your prisons and I shall say in which society you live”. The experts from the Council of Europe stated that our prisons do not obey the European standards and that we must change the situation. This was one of the conditions of the integration, and the integration guaranteed the survival of Estonia as an independent state. One of the political decisions to promote the reforms was the transfer of the penitentiary system to the Ministry of Justice.
I would not like you to think that this transfer was an important element of the reform. It was merely a political decision. The essence of the reform was not to change the signboard but to carry out real actions that could lead to new results.
To make changes was difficult. After the perestroyka in Estonia the situation was such that old laws did not operate and new laws were not adopted yet. However, the criminals did not take it into consideration: the criminals committed crimes and the courts continued to try them. We decided to start the reform with adopting new laws, with developing a new concept of the penal-executive system. We did all to make Estonia find a new, European face.
Our reform has three main directions, which, I think, every post-totalitarian country ought to pass.
The first direction is the reform of prison legislation. We have an Executive Code in Estonia, which has been already changed and is being changed now. Many new concepts has been introduced into practice with difficulty because new social conditions are lacking, because the society has not ripened to the level of many demands which Europe set for our prisons. But we have introduced the changes, which were ahead of reality, and by and by the gap began to narrow, because new opinions on the prison system began to grow in our society.
The second direction is the reform of prisons. Our colonies remained without work — they had no orders. Our country was left by internal troops of Soviet Union, which guarded the colonies. We had to create our professional prison guard service within a month. This forced us to change our concept of the prison system. We passed to the model of the cell-type prison. This also solved the problem of high level of security. The transfer from colonies to cell prisons demands a large amount of money and time. We managed to convince the society to create new expensive cell-type prisons. During recent 5-6 years we have built four new buildings of the European type. There is hot water and electric heating of floors. It is pleasant to see such a cell, it resembles a hotel room. We have to explain to public and to public organisations why we did it. Up to now newspapers attack us for creating better conditions for jail-birds than for an average citizen at large.
The third direction is the reform of the prison personnel. When we started revolutionary transformations in 1990, we abolished shoulder straps, military ranks of the personnel, we left only uniforms. This reform demanded large expenditures, in particular for creating a training centre for retraining of the old and training of the new guards.
Beginning the reform of the prison system the state must understand its specific features. Recently we have declared to our members of Parliament that if within a year the personnel does not get the proper wages, they will get the deficit money from the prisoners, which means that they will take bribes.
Passing to the topic of the transfer of the prison system to the Ministry of Justice, I would like to point out that this is a political step which makes the basis for the new attitude of the society to the prison system. For a long time the prison system was a part of law-enforcing agencies, now it is becoming close to a human rights protection structure. The attitude of the society to prisons must stop to be negative. For many years the prison structure lay under the curtain of state secrets. Now we have got rid of the secrecy. The society must regard prisons as a necessary component of the state.
For a long time we have been talking about fight with crime, now we can speak about the work with the criminals. We must not fight, we must not be in the state of civil war with a part of our population. In any civil war victors do not exist, all become defeated. The new situation stops the war, it diminishes the strain between the society and the prison system. After the transfer to the Ministry of Justice the punitive system obtains a human face. Simultaneously, this is a way to the European prison system, to accepting the European prison philosophy. The punitive system becomes more flexible, the law-enforcing structures can operatively react to the political, economic and criminal situation in the country.
The transfer of the prison system under the Ministry of Justice opens new levels for prisons. There is an opportunity to reintroduce such forgotten organisations as municipal or local prisons. The local administrations are interested in building such prisons, since the prison system becomes a part of civil administration.
If to speak about the history of the transfer, the prison system was first passed under administration of the Minister of Interior, avoiding the control of departments. Somewhat later the system was governed simultaneously by the two ministers: of interior and of justice. Then, in the course of creating the legislative basis, the system was finally transferred to the Ministry of Justice.
It is necessary to introduce into our practice a new prison philosophy. We would like the public organisations not to confine themselves, focusing their interests on “opening prisons for informing the public and for visiting by representatives of NGOs”. We were convinced by our experience of interrelations with Estonian public organisations that, having got the information on prisons, the public organisations try to use it for the fight with prisons. We have no KGB, we have no Gulag. There exists a new legislation, a new state service, but, nevertheless, some public organisations continue to compare our system with that former period. Respected public organisations, help the new prison system to become open and comprehensible to society, try to see and understand our viewpoint. This is the first.
The second is visiting prisons. I would like to ask a question from the respected ladies and gentlemen representing public organisations: why they want to visit prisons? A prison is not a zoo and not a theatre. If you want to come and work, please, come and work. In Estonia there are many public organisations that do not visit in order to stare. They keep religious services, grant humanitarian aid, etc. That is the right way.
We try to create the conditions of upkeep in prisons similar to those available at large. Three years ago we terminated to feed prisoners, accounting only the norms of nourishment. We introduced menus. Each incarcerated gets on his tray not just food, but the first, second, course and dessert, they get the food which about 40% of population cannot afford. Estonia is a small country. The incarcerated must not be treated as beasts. Sooner or later they will leave the prison, and they must be trained to live with other people. I have a daughter. May be, she will soon marry a former convict. I do not want to have a wolf of a son-in-law. The public must understand why our relations with the incarcerated are so soft.
One of the elements of our reform is creating a social service in prisons. We prohibited our social workers to pronounce such words as “breeding”, “correction”, “reforming”. We say that the process of staying in the prison is education. If during the prison term a convict gets enough knowledge for living and working at large, it will mean that the prison fulfils its task.
It is nor sufficient to open prisons for the public. The public must be open to accept the prisoners too. For example, it concerns liberation before the appointed term. The public must agree that a killer sentenced to 15 years may be released in 8 years.
Recently our MPs cancelled restrictions for the conditional early liberation. Then 472 incarcerated (out of 705 whose requests were backed by prison administration) were released. Quite recently one of these released killed two people. The public protested so loudly that the Prime-Minister of Estonia suspended the pre-term liberation and pointed out that in future such decisions will be issued after a long and serious analysis.
In conclusion I address my colleagues from various countries: let us communicate. Prison systems throughout the world have one goal and the same problems. We understand each other perfectly. We stand on some kind of barricades. The incarcerated sooner or later will leave this barricade and return home, but we shall continue to stand on the barricade.
Population 2.5 million
Number of incarcerated on 1 January 1999 9409
under investigation 3561
Number of incarcerated per 100 thousand of population 376
Number of penitentiary establishments total 15
closed prisons 8
labour correcting colony 1
preliminary prisons 2
Penitentiary system is governed by the Ministry of Interior
Head of Organising-Analytic
Department Directorate of Penitentiary Establishments
Essential reforms in the prison system of Latvia started in 1993-94. Then, after fruitful discussions, law enforcing bodies and, mainly, the administration of prisons, managed to convince the government and the parliament in the necessity of cardinal changes.
Like Estonia, we carried out the reforms in several stages. At first we amended the Penal and Penal-Executive Codes. In 1994 we accepted the progressive system of keeping the incarcerated in prisons of opened, semi-closed and closed types. The administration of prisons got the right to transfer the incarcerated from one type of prison to another, depending on the success of correction. On 30 October 1998 we introduced the probation service, but it is still too early to assess the experience. A new Penal Code was developed and will come to force on the 1st of April 1999. We have also developed the draft of the penal-executive law, which is now waiting for the consideration in the Cabinet of Ministers. It is planned to adopt this law in 1999.
At present, the penitentiary system of Latvia consists of the training centre for preparing the personnel and 15 prisons: eight of the closed type, two of the semi-closed type, two of the opened type, one for minors and two preliminary investigation prisons. In six prisons of the closed and semi-closed type six small investigating departments, organised by the regional principle, are incorporated. In future they are planned to become small municipal prisons.
According to the law, the convicts incarcerated in prisons of the closed and semi-closed type must be kept in closed cells. In Latvia not a single prison had satisfied to the necessary demands, since we inherited penal colonies from the Soviet system. That is why, simultaneously with the introduction of the progressive system, we started the reconstruction of prisons. During three years we started reconstruction of six prisons. This work becomes more and more active, and at present 2800 convicts are kept in cells for 2-4 persons. The reconstruction of other prisons is planned to have been finished by 2001. We have an investment program which is fulfilled.
On 1 October of the current year 9520 people are kept in prisons of Latvia. This sum consists of 5998 convicts and 3522 arrested for investigation. On the average we have 395 incarcerated for 100000 of the population. The incarcerated are convicted mainly for grave crimes.
Owing to the introduction of the progressive cell system and in the connection with the changes in the society, we have come across with very complicated problems.
The first problem is that at present only 26% of the incarcerated have jobs, including those who are busy with the servicing of the prisons. This is too little, of course. The incarcerated are idle. We attempt to occupy them according to their interests by creating various hobby groups.
The second problem is that the prison population has a very low educational level. Our duty is to give them some education. Up to now we have general-purpose schools only in 4 out of 15 establishments. Some professional training is given also in 4 prisons only. During a year only 200 students get some documents on the professional education. That is why most of the convicts are released without any profession since the society has problems with employment, such people have thin chances. We have developed a concept of the post-penitentiary aid. At present it waits consideration in the Cabinet of Ministers. The concept contains the change in the education system in prisons.
Another grave problem is that of TB. During the two late years the number of TB patients increased. Now we have 5% of the total prison population as TB patients. We have even got cases when the personnel caught TB. We have prepared a project of building a TB hospital, but we have difficulties with investments.
The opportunity to be integrated into society after release is very limited for a former convict. There exists no such state organisation whose duty would be to assist former convicts in solving their problems. Until now only public and religious organisations try to aid, and we are thankful to them.
Some aid is rendered by other countries, mainly Scandinavian. There exists a project “Nord Balt Prison” developed in 1996 by an initiative of the Council of Europe. In the framework of this project the countries of North Europe are ascribed to former Baltic republics of the USSR with the purpose of aiding the new states in reorganisation of their prison system. Sweden and Norway are ascribed to Latvia. Swedish colleagues render aid in training the personnel in prisons of Sweden, in supplying equipment for classes. We have “sister-prisons”, paying mutual visits, etc. This project has noticeably improved the state of our prison system, both in the moral and in the physical aspect.
A few words about the transfer to the Ministry of Justice. On the
8 July 1999 the prison system of Latvia will celebrate its 80th anniversary. Up to 1939 and in the 50s the prison system was governed by the Ministry of Justice. The necessity of the transfer to the Ministry of Justice today is caused by the recommendation of the Council of Europe. The experts of the latter inspected all Latvian prisons and gave their conclusions about each prison: what should be done in order to make the prison concord with European standards.
By now we have more or less perfected the legal base by making it step by step concord with the demands of the Council of Europe. A more complicated problem concerns the personnel and its social protection. We have prepared a draft of the law of the social protection of the personnel; besides we have developed the conception of the transfer to the Ministry of Justice. This conception is approved by the Cabinet of Ministers, the commission in charge of the transfer is created. Representatives of the prison administration, Ministry of Justice and Ministry of Interior are members of this commission. The prison system of Latvia is to be transferred to the Ministry of Justice on 1 January 1999.
Population 4 million
Number of incarcerated about 14000
Number of incarcerated per 100 thousand
of population 325
Penitentiary system is governed by the Ministry of Interior
Chairman of Union of aiding the incarcerated Lithuania, Vilnius
DO WE STILL HAVE THE GULAG?
Solzhenitsyn listed three features characteristic of the Gulag in contrast to other prison systems. The first feature is that the prison personnel is prepared in militia schools, whereas in the normal prison it is social officers who do the work. The second feature is that prison guard consists of the military. The third feature is that Gulag incorporates preliminary prisons for those who are still awaiting their verdict, whereas a normal prison must contain only those who were arrested in the courtroom after the verdict was declared. We have the system meeting all these features. In the pre-war Lithuania the prison system was governed by the Ministry of Justice. When our independence was gained in 1991, one of the first demands was to transfer the prison system back to the Ministry of Justice. During 40 years of the occupation our old traditions and laws are still alive in our memory. Nonetheless, we have not yet transferred from the Ministry of Interior. I believe that this is due to the fact that certain bureaucrats are afraid to loose their ranks and privileges. However, maybe such a transfer will at last be made this summer.
At present Lithuania has 14 thousand of the incarcerated, i.e. 325 incarcerated for 100 thousand population. In all the Scandinavian countries rolled together the number of the incarcerated is less. This fact testifies of some abnormality.
What can NGOs do to change the situation? Some of them go in for charity, distribution of food rations, of clothing, but this solves only a small part of the problems. We understand that out prisons now are opened for NGOs. Unfortunately, some visitors come to prisons as tourists. There are few organisations that understand prison problems.
Our organisation has existed since 1991. We try our best to affect the situation in prisons. We publish a magazine, a quarterly, and distribute it among politicians, newsmen, MPs, and so forth. One issue was devoted to the death penalty. The chairman of one of parliamentary committees handed this magazine to all members of the committee before discussing the death penalty. We also published a newspaper for the incarcerated during four years, but we had to terminate it because of financial difficulties. We managed to introduce our representative into the commission of mercy at the Presidents administration and we try to influence decisions of this commission.
Unfortunately, we are unable to solve certain important problems, for example, such as preparation of the law draft: it demands very high qualification.
Something has been changed in our prison system: public telephones and TV sets appeared, it is permitted to receive more parcels and wear civil clothing. Nonetheless, the incarcerated regard all these changes as make-up, which does not change the essence of the things.
Population 50.1 million
Number of incarcerated 205,5 thousand
Number of incarcerated per 100 thousand of 410
colonies for adults 128
in particular for women 6
correcting labour colonies 11
preliminary prisons 32
Penitentiary system is governed by the Special Department since 1998
Deputy head of the State Department
in Charge of Penitentiary Establishments Ukraine
PROBLEMS OF REFORMING THE PENITENTIARY SYSTEM
The reform of the penitentiary system of Ukraine is one of important tasks of building our independent law-abiding state. Now this system includes 183 establishments in which 205.5 thousand people are kept, in particular more than 155 thousand in 128 correcting labour colonies, 3.5 thousand minors in 11 correcting labour colonies, 43.4 thousand incarcerated in 32 preliminary prisons. About 3.8 thousand are treated from alcoholism in 12 medical labour establishments.
Historically, the penitentiary system has been developing 74 years in the framework of the former Soviet Union. The existing establishments with their industrial base and infrastructure have been created since 1964. This work was financed from the funds earned by penitentiary establishments. In 1960 the Correcting Labour Code of Ukraine was adopted and in 1969 the fundamentals of the correcting labour laws were approved.
During the years of independent existence of our state, parallel to the processes of democratisation and humanisation of the society, we carried out serious reforms in the penitentiary system. Having used the opportunities granted by the Council of Europe for learning European prison systems, we developed the concepts of main directions of the reform. These conceptions were approved by the government of Ukraine in 1991 and in 1996.
According to the obligations given by Ukraine while entering the Council of Europe and according to Part 7 Section 11 of the Conclusion of PACE No.190 (1995) on joining the Council of Europe by Ukraine it was decided that the penitentiary system would be transferred to the Ministry of Justice by the end of 1998.
Solving the problem of governing such a complicated and important system (and the penitentiary system is certainly such) demanded a many-sided assessment and reasonable approach. We had not only copy foreign state structures, but conform it to our conditions for increasing the efficiency of the system. After the acceptance of Ukraine to the Council of Europe the experts of the latter in 1996 during two months studied the operating laws and the law-applying practice in Ukraine. The experts inspected 22 penitentiary establishments in 8 regions of Ukraine. The results of this inspection were described and analysed in the report “Assessment of the prison system of Ukraine”. The report also contained recommendations about how to conform the Ukrainian system with European standards. The report pointed out the necessity of reforming the penitentiary service into an autonomous social organism.
On 22 April 1998 President Kuchma issued the Edict “On creating the State Department in charge of penitentiary establishments”. I think that this is a historical date for our system.
By the order of the President of Ukraine, the Ministry of Interior and the Ministry of Justice developed a number of important documents, such as “The statute of State Department in charge of penitentiary establishments”. This Statute was approved by the Presidents Edict of 31 July 1998 together with the draft of the Ukrainian law “On changing and amending some legal acts of Ukraine in connection with the creation of State Department in charge of penitentiary establishments”. The Cabinet of Ministers of Ukraine directed this draft to the Supreme Rada of Ukraine on 14 July 1998. This draft has already being considered by the Supreme Rada of Ukraine Committee of legal support of law enforcing activities in the struggle with organised crime.
All this creates objective conditions for profound reforming of the penitentiary system. The reforms are promoted in the following main directions.
First, it is creating a qualitatively new legislative base.
Second, it is development and strengthening of the material base of penitentiary establishments for creating proper conditions of upkeep of prisoners.
Third, it is the study of the experience of foreign countries, development and implementation of new forms and methods of correction convicts.
Fourth, it is the preparation and the employment of the high-skilled professionals.
Recently on our initiative the Supreme Rada and the President of Ukraine have adopted 22 legal acts and the Cabinet of Ministers adopted 17 orders and resolutions in different questions of perfecting the penitentiary system. Especially important are the following resolutions: “On the improvement of activities of penitentiary establishments”, “On the programme of conforming the conditions of the upkeep of prisoners and administratively punished persons to international standards”, “On urgent measures of enlisting to labour of persons who serve sentence in penitentiary establishments”. These resolutions promoted humanisation of punishment, strengthening the legality and stabilisation of the situation. The draft of the Penal-Executive Code of Ukraine was developed and adopted by corresponding Ministries and agencies. This draft makes account of the international experience; it passed an expertise in Switzerland. This will be a qualitatively new legal act which responds to modern international norms and rules of treating convicts. In particular, the draft introduces a new approach to the distribution of convicts to different penitentiary establishments. This question will be solved by special distributing commissions, taking into consideration the verdict and the classification of the criminals by ranging them with respect to their danger for the society.
The classification of penitentiary establishments is principally new. They are classified into three levels of security: maximal, mean and minimal. A new system of structural departments of penitentiary establishments is determined, as well as the rules of transfer of a convict from one level to another.
It should be noted that when Ukraine became an independent state, the curtain of mystery was taken from the penitentiary system. Nowadays the prison is really open, it can be visited by representatives of any registered party or public organisations or mass media. Briefings for mass media, meetings with journalists of the press, radio and television have become traditional.
In accordance with Article 9 of the European Convention of human rights and Article 35 of the Constitution of Ukraine special programmes of co-operation with 21 religious confessions have been developed, these ties with the religious organisations assist convicts in their return to spiritual culture and basis of morals. Almost every establishment now has a room for prayers, and in some of them churches are built. In my opinion this practice yields positive results.
We co-operate fruitfully with human rights protection organisations and with the Directorate of human rights of the Council of Europe. Under the aegis of the Council of Europe we held the seminar “A new conception of penitentiary system”. Specialists of penal-executive system of Ukraine learned there about the activities of penitentiary establishments of a number of European countries, with the conditions of upkeep of convicts and the work of the personnel.
The Ukraine penitentiary establishments were examined by experts of the Council of Europe. Their conclusions read that our establishments still do not answer to the European standards by the living conditions.
It so happened that during the years of the Soviet power in Ukraine only 2 out of 32 preliminary prisons were built. The others were built 100-300 years ago. The Ukrainian government approved a special programme aimed at conforming the conditions of upkeep of convicts with international norms, but its execution is unfortunately delayed because of the lack of necessary financing.
Analysis shows that during five recent years the number of the incarcerated have grown by 11% per year, which certainly worsens the situation with living accommodation, provision of jobs and medical services. In order to improve the situation we have open 35 new establishments with the capacity of 25.2 thousand during the last seven years. Among them 4 preliminary prisons with the capacity of 2 thousand were opened.
Certainly the solution of these problems is impossible without energetic high-skilled devoted staff. Now the staff of the penitentiary system numbers 44.1 thousand; 34.8 thousand are paid from the budget, the rest — for the income of our production. The average monthly pay of the attested personnel equals 175 grivnas, while the hired staff gets 155 grivnas. Taking account of the fact that the personnel of the penitentiary system does the socially important work and having in mind the UNO recommendations, the personnel must get such a pay that it would be possible to hire high-skilled professionals. One of my colleagues used to say that is the prison personnel gets insufficient pay from the state, then they will get the difference from prisoners. Alas, this happens. The work in our system is non-prestigious, risky, hard and underpaid.
In order to solve the urgent problems the administrative committee is created with the aid of the Council of Europe. This committee have determined and implements practical measures for further improvement of the penitentiary system in Ukraine; it also realises a number of special programmes and projects.
We have programmes which are aimed at perfecting lists of staff, organisation structure, selection and preparation of personnel, distribution and classification of convicts and peculiarities of treatment those convicts who are condemned to very long terms. In the line of international contacts we worked out plans for sister-prisons, sister-training centres and probation of teachers.
At the modern stage we have determined the following main directions of activities of the penitentiary system:
continuation of the work as to conforming the upkeep conditions with international standards;
documents to substantiate giving the system some tax and customs privileges;
economic stimulation of our business partners;
top priority distribution of state orders to our system;
development of the state programme for preparing the convicts to social adaptation after their release;
conducting (jointly with foreign specialists) experiments on the implementation of new forms and methods of resocialisation of convicts;
reorganisation of the system of the social-psychological service;
creation of the conception of selection and preparation of the personnel for the work in the penitentiary system.
In renovating and constructing the penitentiary system of Ukraine we permanently feel the support of the President, government and public, which must guarantee the success of the reforms.
Member of Parliament, First deputy of the Chairman
of the Committee in charge of human rights, national minorities
and interethnic relations of the Supreme Rada of Ukraine, Kyiv
One of the most important activities of the Supreme Rada and its profile committees is the adoption of the new legislation base which could assist the observance of human rights according to the international standards and the obligations taken by Ukraine. As is known, namely this part is the most precise and positively assessed by the world public. However, in accordance with Conclusion No.190 (1995) of the Parliamentary Assembly of the Council of Europe (PACE) it is necessary to adopt a framework law on the policy concerning human rights. This problem is connected with the topic of our seminar.
Our committee recently considered a draft of such a law, which was introduced by the Cabinet of Ministers, but it appeared unfortunately that it does not satisfy the needed level. Thus, this document is still being developed. The law will consider the conception of Ukrainian policy concerning human rights. Among other questions it will treat human rights of people who stay in penitentiary establishments.
This cited Conclusion No.190 includes other obligations, such as the adoption of the framework law of judicial reform and new Penal and Penal-Procedural Codes. It also includes the obligation to change the role of the prosecutors office and transfer the penitentiary system to the Ministry of Justice.
By today Ukraine has already ratified the European Convention of human rights with all protocols except Protocol No.6 (on prohibition of the death penalty). The latter question is also being solved. The draft of the law on the abolition of the death penalty has been prepared. Besides, the Ukrainian law on the ombudsman is adopted and the European Convention against torture is ratified. Considering the new Penal-Procedural and Penal-Executive Codes is being prepared. The new Penal Code is adopted in the first reading. The European Convention on the observation of the convicts released on bail and the European Prison Rules are ratified.
The problem of observing human rights in penitentiary establishments has its own peculiarities and attracts attention both of legislators and of the public. We understand now that it is not only necessary to observe the rights of the incarcerated, but also the social-economic rights of those who work in these establishments. The difficulty lies not in the absence of desire of legislators to take the necessary decisions, but with the difficult social-economic situation in the country. In our opinion (and in the opinion of the majority of out Committee) the most violated rights are social-economic, in particular, it is the right for a fair living standard. By this criterion Ukraine occupies one of the last places in Europe.
In the connection with the reform of the penitentiary system it is necessary to create the corresponding legal base. In spring 1998 the position of ombudsman was created in Ukraine. This figure must carry out the parliamentary control over the observance of the constitutional rights and freedoms. What concerns the work of our Committee, we focused our attention on creating the legislation. I support the manner of work when law drafts undergo expertise of a wide circle of people, including scholars and representatives of public organisations.
Recently at the meeting of our Committee we considered and approved the draft of the law aimed to remove reservations of Ukraine to the UNO Convention against torture and other cruel, inhumane and degrading treatment and punishment. Our Committee recommended the Supreme Rada to adopt this law and remove the reservations made at the moment of accepting the Convention. This step will assist experts of international organisations and the Council of Europe to get acquainted with our penitentiary system.
Now in Ukraine a state programme of developing legislation up to 2002 is prepared for the first time. This programme includes the laws on the penitentiary system and on social rehabilitation of the released, as well as the control of their behaviour. The adoption of these important laws together with the Criminal-Executive Code will create the proper legislation base that would guarantee the work of our agencies on the level of international standards.
All this will create objective premises for profound reforming of the penitentiary service and will enable us to reorient its activity to qualitatively new work with the account of international experience, humanistic principles, obedience to law and democracy.
International seminars similar to the current one are undoubtedly useful, and the materials of this seminar will be used in solving problems of the legislation base of the prison reform in Ukraine.
First vice-rector Kyiv Institute of Interior
PRISON AS A PECULIAR KIND OF SOCIAL CLINIC
It is difficult for me to say what I am: practician or theoretician, since I worked in a prison for ten years and then for twenty years I went in for scientific questions related with prisons.
First of all I want to express my gratitude to the organisers of this seminar. It is very promising that the questions related to prisons got into the focus of the public interest.
Since the second century BC — it is from this time that the punishment by incarceration was introduced in the ancient Rome and India — no changes in the prison routine were possible unless the society recognised their necessity. This seminar, I hope, is an indication that our society needs to reform the penitentiary system, to implement prison reforms.
I completely do not agree with a narrow treatment of the term “prison reforms”. One should not confuse terms. As they use to say in Odessa, there are two great differences between punishment system, penal-executive system, labour correcting system, penitentiary system and prison system. Again, if we speak about reforms, what do we really mean: a serious change, reconstruction, redecoration, or just window dressing? Using the term “reform”, I shall mean a serious reconstruction.
Besides, very different goals may be set before the establishment called “prison”. These goals determine the system of relations among the people involved: those who stay in prison according to the verdict and those who work with the incarcerated according to the contract.
In other reports a prison was compared to a state within a state. This idea must not be exaggerated. A prison is of one flesh and blood with the state and society. All state and social vices are retained in the prison, but in a more cynical and visible forms.
One must not understand the prison life aloofly. For that part of the Ukrainian population which is incarcerated (and it counts 230 thousand people), staying in prison is a part of their lives. Prison must not only punish. Prison must be regarded as a special kind of a social clinic which is intended to cure social pathology. Clients of this clinic had not got the proper dose of attention from the society and state, so they had not learned the proper system of priorities and values which make the moral basis of human life. Their behaviour, including the criminal one, is only a symptom of social pathology, of the distortion of their rules of living which they soaked in from their environment.
Prison is not a panacea in the struggle against crime, it is, perhaps, even not a domineering factor. The source of criminality is not located in prison. We have statistical data that now there are 30 thousand stray children only in the city of Kyiv. One must not be Nostradamus in order to predict that in five years they will become 30 thousand criminals. We must now build prisons to accommodate these candidates. We must regard prison as a collector in the social drainage system which must recycle the waste generated by the state and society. This will meet the interests of social security, it will be humane and noble. This will please the God, if your prefer this line of reasoning, because we shall give these people a chance to turn over the new leaf. These poor people will never have this chance without our help. If they could, they would not stay in prison. They need help on the side of society. They need sympathy, they need assistance to assess their previous existence, to feel the taste of new values, which are, as a rule, not material, but spiritual.
Lack of spirituality is the philosophical basis and foundation of the moral and social degradation of man. We must speak today about prison as a tool of moral resurrection of that part of our population which had not had any access to the positive socium, to spiritual values. This is the correct angle at which we must regard the reform of the penal-executive system whose main sense is expressed in its name. This is a punishing tool, what will become with the incarcerated in future does not interest the system. But every kind of human activity is reasonable if it achieves its result.
Speaking on the problems of the reformation of the prison system, applying the system approach, one should understand that any serious construction must start with the elaboration of the project.
The idea of constructing a new prison is as old as hills. The idea was developed by the first Christians. Even the first Church Council of AD 232 discussed this idea and decided that man can be returned to good life only through “penitencia” — repentance. The term “penitentiary system” stems from here. Almost two thousand years passed. Now this idea has been realised in many states, and it yields positive results. We must reorient our approaches, develop proper models and embody them in a law, because a law is the tool that can create something in a state.
Believe me, returning the incarcerated back to society is not a task for prison only, this is a task for the entire nation. This is not a simple task, I believe that Ukraine has a chance to fulfil this task.
Professor National Juridical Academy
named after Yaroslav Mudryi, Kharkiv
ON CONCEPTION OF PENAL-EXECUTIVE LEGISLATION
We live in interesting time. We have a unique opportunity to participate in creating a new Penal-Executive Code, which we can make humane and responding to all demands of the corresponding world standards. Some time ago the Cabinet of Ministers ruled to create a group of theoreticians and practicians to create the above-mentioned code. I was included into this group, but nobody proposed me to do anything. I and my colleagues learned about the creation of the new draft from mass media. The draft has been prepared by the proper department under strict secrecy. I think that such a procedure is wrong: creating the draft is a deed of national importance, and everyone who could make any contribution to the draft must be attracted.
The department of criminology of our academy could be able to prepare such a draft. We can do it because we have a sizeable scientific potential.
We must not repeat the mistake committed in Russia. At the scientific-practical conference held in Moscow the new Penal-Executive Code was discussed, and many speakers listed many mistakes and drawbacks of the new code.
I think that many problems of the new code must be discussed by public. The main questions to be discussed are the concept of the new code, the problems of correcting the incarcerated, the limits of admissible restrictions of rights of the incarcerated and other strategic and tactical directions. In the drafts of the new Penal-Executive Code and Penal Code the most basic questions must be discussed. First of all, they concern the goals of penitentiary establishments. In the existing drafts the goals of the punishment are described in very fuzzy terms and are very irrealistic. Usually the goal of the incarceration is considered to be reforming of the criminal. Hence, the main criterion of efficiency of penitentiary establishments is the measure of decreasing recidivist crime. Such an approach is an irrealistic exaggeration of possibilities of incarceration.
In my opinion, colonies and prisons must reduce crime only in the sense that they isolate criminals from the society, and nothing more. Such an approach redeem us from various fantasies on the topic of re-breeding, reforming, correcting a person. Penitentiary establishments are intended to stop the criminal activity. Hence, the main criterion of the efficiency of penitentiary establishments must be not decreasing recidivist crime but a good organisation of isolation of the incarcerated, maintaining order, creating conditions for dragging the incarcerated into the system of social relations and the development of responsibility for their behaviour. As to reforming and correcting, it must be the duty of hand-picked pedagogues and psychologists, who can and wish to work with the incarcerated. In many countries there exists the institute of social workers, who represent, so to say, a bridge between prison and society.
Unfortunately, these simple and realistic ideas are not embodied in the drafts either of the Penal or the Penal-Executive Codes of Ukraine.
In my opinion the penal-executive policy of Ukraine at present must be developed in two main directions:
improvement of the order and conditions in the penitentiary establishments;
organisation of an efficient system of social adaptation of the incarcerated.
Fantastic demands that the penitentiary system must correct hardened criminals brake the achievement of realistic goals.
Head of the Department of Penitentiary
Legislation Research Institute for Studies of Crime, Kharkiv
RE-ORGANISATION PROBLEMS OF UKRAINIAN
Ukraine ought to fulfil the obligations taken by her while joining the Council of Europe. One of the obligations consists in transferring the penitentiary system to the Ministry of Justice. In order to fulfil this obligation the President of Ukraine by the Edict of 22 April 1998, created the State Department of Ukraine in charge of the penitentiary system (in what follows, DPS, for brevity). Creating DPS is intended for further perfection of the administration of the penitentiary system and for creating pre-conditions for its reforming and transferring to the Ministry of Justice. In the statute of the DPS approved by the Presidential Edict of 31 July 1998 it is said that the DPS is the central organ of executive power which is provisionally governed by the Ministry of Interior. But, as the proverb says, there is nothing more stable than the provisional. I would not cherish the hope that reforms realisable at present are able to essentially improve the situation in the upkeep of prisoners. A reform is some novelty which does not change essentially the previous situation. So we have reforms, but they are contradictory in direction and effect which they make on the course of the processes in the penitentiary system.
One must not exaggerate the consequences of the decision to remove the penitentiary system from the Ministry of Interior. The change of signboards will hardly lead to qualitative changes in the functioning of the penitentiary system. The creation of the DPS can be regarded only as the first step on the road to really profound transformations of the system. The statute of the DPS contains the description of the new organisational structure and has some features that inspire cautious optimism: it does not set such unrealisable aims as correction and reforming the incarcerated by way of attracting them to socially useful labour. Thus, there is a hope that the new administrative structure would fulfil not illusory but realisable purposes. Certainly, the subordinate structures may assist and may resist in achieving these purposes. This depends on the convictions of the administration of penitentiary establishments and on the interpretation of these purposes by the top administration. One of the results of creating the DPS must be demilitarisation of the personnel. That would improve mutual relations of the personnel with the incarcerated. Not only the directives sent down by the top administration shall assist solving all these problems. The other source of assistance must be given by scientific elaboration that give a theoretical justification for the activities of the penitentiary system with the account of social-economic and political changes that occurred in Ukraine in 90s.
The further development of the penitentiary system must be based on the idea that in penitentiary establishments there must be two distinctly delimited spheres of influence: that of the state and that of the society. The penitentiary system must be based on the principle that punishment is an act of coercion that is executed on behalf of the state by the verdict of the court to a person who is acknowledged to be guilty in committing the crime. This means that the penitentiary system is called to realise the measures of state coercion. The function of the administration is to execute the punishment, and this is the state duty. As to the personnel, which carries out a social and pedagogical activity, organises labour and education, performs correcting and reforming of the incarcerated, they serve the interests of the society. It is the society that must be interested in making the released safe for the society. In order to fulfil this function the personnel must permanently co-operate with representatives of public and religious organisations. The penitentiary legislation should not regulate forms of this co-operation in detail, but give only the general sketch of this co-operation. An example is given in Item 8 of Article 4 of the statute of the DPS, where it is stated that the DPS organises reforming work with the people kept in penitentiary establishments by way of attracting representatives of creative unions, public and religious organisations, labour collectives.
In accordance with the European Prison Rules, the standard of the upkeep of the convicts is a mean of the correcting influence. From the conception of the separation of functions of the state and the society it follows that it is the society that must provide the proper standard of upkeep of the incarcerated. The punishment is only the isolation of the convicts from the society, and nothing more. All the rest does not concern the penitentiary system. Theoretically, it is possible to create for the incarcerated any conditions, maybe equal to those under which people at large live, since this does not enter into any rules of the execution of punishment.
The penitentiary system appeared to be an unliftable yoke for the state. For example, in the Russian Federation the state budget issues about 4 cents per head per day per convict. This problem is as painful in Ukraine. Since our state is unable to improve the conditions of the upkeep, it would be desirable to attract to this private investments, including those from abroad. Especially painful is the problem of improvement of the conditions for people kept in preliminary prisons. Since the inmates of these prisons are people who have not been condemned yet and whose property has not been yet confiscated, they may buy many things and services beside the minimum guaranteed by the state. As an experiment it is possible to build a preliminary prison where the functions of isolation and observance will be performed by the military personnel from the Ministry of Interior, and commercial structures will be attracted for the creation of better conditions of the upkeep. This experiment was tried in Russia, where, in accordance with Appendix 3 to the “Internal rules for preliminary prisons”, the prison administration and outside persons attracted by the administration may provide to prison inmates a number of paid domestic and medical services, such as hairdressing, shaving, renting a refrigerator, a TV-set, etc.
The ideal method for creating civilised conditions of the upkeep would be the change of correcting labour colonies to prisons, where the living conditions would agree with the European Prison Rules. Yet, in the observable future this solution is hardly possible. On the one hand, it is prevented by the shortage of finances in the budget; on the other hand, it is prevented by the current legislation and the practice of courts, which results in the growth of the incarcerated every year. This fact, in my opinion, can grow to a big problem for the penitentiary policy.
Head of criminal laboratory University of Internal Affairs, Kharkiv
The criminal statistics testifies that recidivist crime in Ukraine continues to be a rather serious problem, since the level of this crime grows. Although this level must not be the main criterion in the assessment of the penitentiary system activity, it is impossible to negate that this level characterises the process of executing punishment. This is not accidental. In 1997 recidivists committed 74406 crimes, which is 61.5% more than in 1992. For the nine first months of 1998 recidivists committed 61200 crimes. The social danger of recidivist crime remains rather high in spite of the fact that so-called “new” crimes domineer in the statistics. Recidivists not only bring damage to the society and the state, but also abet the further criminalisation of the population, the further distribution of criminal customs and traditions.
In spite of the importance of the conception of “recidivist crime” its definition is absent both in the operating penal legislation and in the draft of the new Penal Code. If court relates a crime to recidivist one, it makes the verdict more stringent. This is just because the fact of the recidivist crime testifies on the steady anti-social orientation of the criminal and his unwillingness to correct himself.
On the other hand, this attitude is unfair. Making the verdict more stringent is justified only under the condition that subsequent crimes are of the similar kind, which reflects the steady orientation of the criminal. This means that not only reforming of the prison system is needed, but also reforming of the judicial system. According to the statistics of the Ministry of Justice, out of 237.8 thousand of the convicted during the last year 39.4 thousand, i.e. 16.3%, had already been condemned. In 1997 as many as 32.2 thousand of the former condemned were tried. In 1998 the situation was even worse: 73.4 thousand of recidivists were kept in prisons and colonies, which makes 44.9% of the total number of convicts. The corresponding number on 1 January 1994 was 30.1 thousand. Certainly, the growth of the number of recidivists among the incarcerated confirms the intensification of the growth of fight with crime. Yet, it also testifies on the insufficient efficiency of the justice, whose repressions are somewhat misplaced.
Annual amnesties, which are conducted since 1991, confirm that the situation is somewhat abnormal. On the one hand, the state takes energetic steps to strengthen the fight with crime, but on the other hand, criminals are massively released. In 1997 about 31 thousand of criminals were released.
At the same time the incarceration is a very frequent measure of punishment; the proportion of the incarcerated is 36-39% from the total number of the tried. The study of the composition of the prison population shows that the majority of them are not grave dangerous criminals that should be kept behind the bars. The incarceration frequently makes a jail inmate even a worse criminal.
For example, in the colonies of stern regime of Kharkov region 49% of the incarcerated are people condemned for theft. The most frequent prison term is from one to three years. By the end of 1997 they amounted to 34.9% of the total prison population. We know that bad living conditions often stimulate people to commit crimes. The verdicts of our courts are often absurdly not economical: for the theft of a sack of grain or several hens, when the damage equals 50-80 grivnas, the petty criminals are condemned to years of incarceration, and the cost of the upkeep of one convicts per month exceeds 100 grivnas. Besides, the released convict will come out of the prison a worse individual than he had been before the punishment and he will have difficulties in finding a proper place in the society. Certainly, the problem of recidivism should be solved, and that must be done by reforming the prison system. Yet, the most important factor is reforming social and economic conditions.
The rate of work of the Supreme Rada of Ukraine does not permit us to hope that the new Penal and Penal-Executive Codes will be accepted soon. That is very unpleasant. Each year 60-70 thousand are input into the penitentiary system; the output is 35-45 thousand. For the years of independence Ukrainian courts condemned more than one million. To postpone the judicial reform is to close ones eyes on the growing crime and to keep behind the bars a lot of citizens, although a large proportion of them could be put under a short-term arrest and punished by public works or in other ways that do not promote the “criminal career”. If the economic situation and penal policy do not change in Ukraine, then recidivists will make a sizeable segment of our population.
It is not worthwhile to put too much responsibility on the newly formed Department and to demand too much. Recently I myself have worked in the penitentiary system, I know my colleagues, and with the great confidence I can say that the overwhelming majority are ready to work well under normal conditions. One should not say that the personnel brakes the reform. Anyone: a commander of the detachment, the warden of the colony — will agree to work well under normal civilised conditions — when he gets adequate and regular pay and when he feels satisfied with his difficult work.
I want to appeal to state organs, institutes and public organisations to co-operate constructively.
Expert of International Society
of Human Rights — Ukrainian branch, Kyiv
CORRECTING LABOUR COLONIES: PROGRESS OR …?
Today some reporters said that we must not cherish illusions as to correcting the convicts. I believe that this is not quite true. The matter is, that if we can succeed in correcting and reforming our adult inmates, then we can do it in labour correcting colonies for minors.
There are eleven such colonies in Ukraine, and the processes of reforming are proceeding there much simpler and much faster than in the remaining system. Fancy the concentration of former criminal leaders of yards, schools and vocation schools. They are put together not for one day and even not for one year, and the administration of these colonies find it possible to reform them and to prepare them for their future life at large. This is exceedingly difficult. I say it with assurance since I myself worked in the correcting labour colony and saw with my own eyes how complicated and how grateful is this profession.
Being a part of the total system of punishment, correcting labour colonies for minors come across the same difficulties as colonies for adults. Recently, while working in the archives of the Ministry of Interior, I found curious documents: on 25 June 1936 the Peoples Commissar Yezhov signed the order in which he introduced the same uniform for the personnel of the correcting labour colonies for adults and minors. This encouraged the needless similarity in forms and methods of the work of colonies of the two types. All the attitudes, all the peculiarities of the image of a hardened criminals: tattoos, slang, etc. are acquired by the minors either at large or in the preliminary prisons. When they come to the correcting labour colony, they get into absolutely different world of education and correction. In late 80s first real steps aimed at humanisation of upkeep of minor convicts were made. An attempt was made to introduce into the stable and habitual criminal world some elements of pedagogics and co-operation, which would lead a youth, maybe for the first time in his life, to feel the demand to learn and work. The first all-union experiment on implementation of the new module of the correcting labour colony (CLC) was attempted. The personnel recollects this time with affection. Unfortunately, the conclusions of this experiment have not been legally realised in Ukraine. In contrast, the Russian Code in the part concerning minors reflects the results of that experiment. There, in Russia, nobody is surprised by the opportunity to phone to the colony. In 1989 this question was the stumbling-block of the discussion. Prolonged meetings with minor convicts appeared permissible due to this experiment. The reform started with this trifles and later extended to much more serious decisions. For example, in Russia a privilege regime is introduced for those who will be soon released. Once this approach was tried experimentally in colonies of Riga and Kremenchug. The resulting recommendation was that three months before the release, the convicts were passed to a special detachment, where they had the right to go out to the town, also they have the right for various contacts. The result of the experiment was quite positive. I hope that in the new Penal-Executive Code of Ukraine this idea will be legally formulated.
The main task of reforming the CLC is not in strengthening the regime. First of all it is necessary to improve the quality of the pedagogical work, since the minors — in contrast to adults — can be reformed.
Regime as such cannot yield positive results. One must understand that when a minor convict will be passed to a colony for adults, he will leave behind all the results of the careful work of pedagogues and psychologists. Yet, there exists a tendency to making similar the work of the personnel in colonies for minors and for adults. Partly it occurs because different CLCs have little opportunity to exchange their experience.
The Ukrainian branch of the International Union for the human rights (IUHR) held a seminar for wardens and psychologists of CLCs. The seminar was held in May 1998 in the Kremenchug colony. This was a very satisfying meeting where colleagues communicated with each other for the first time after a long period, where they could exchange their problems.
The Ukrainian branch of IUHR suggests now the creation of the European Association of the personnel of the CLC for minors. I have had contacts with the participants of our seminar from other republics and I am very pleased that our proposition is supported. I believe that we shall find finances for holding the constituent conference of the mentioned Association.
In Ukraine there is an only colony for under-age girls in Melitopol. After the disintegration of the Soviet Union it has become somewhat isolated informationally. They have a good collective, a well-prepared personnel, they do much to achieve positive results in reforming girls, but they have difficulties in getting data on experience of other similar colonies. The creation of the Association will make the exchange of information easier and more regular.
Now people speak much about lack of financing. Instead of commenting I would like to quote Anatoliy S.Makarenko. He wrote about his colony in the early 30s, during the famine and the beginning of repressions. He described the resolution of the colonists, where there was a point: “To sew all colonists a couple of suits and to buy winter footwear, and to walk barefooted in summer”. How to incite such optimism now? My answer is very simple: read Makarenko.
Assistant Professor of the Criminal Law Department
National Academy of Internal Affairs of Ukraine, Kyiv
REFORM OF THE PENITENTIARY SYSTEM MUST BEGIN WITH CHANGING THE SYSTEM OF PUNISHMENTS
The internal policy of a state cannot be constructed without a definition of the internal law and order, as well as without the open society. The tragic lot of the Soviet state and Ukraine as its part testifies on the importance of the second condition since one of the main reasons of the fall of the Soviet Union was the fact that state structures were closed for social institutions.
In 1990, when the sovereignty of Ukraine was declared, the most political parties and movements, taking account of the past, voted for constructing the state on the basis of the observance of human rights and for creating the open civil society.
Studying how the criminal law policy is realised we see the following important problems:
creation of the legislative base which would promote the development of a strong state;
observance of rights and freedoms of citizens regulated by international norms;
co-operation of state and social institutions for solving difference of opinions by way of a dialogue.
Meeting these demands is necessary for the activities of the civil society, they must be accounted for in building a law-abiding state. In this context we shall consider the realisation of the criminal policy in the field of punishments.
The reform of the prison system is unreasonable to discuss separately from the penal legislation. In the Penal Code of Ukraine adopted in 1960 the punishment “incarceration” is listed as the first. The courts apply this kind of punishment to more than 40% of the condemned. As a result, the colonies are overcrowded, at least by one third, sometimes the incarcerated sleep in shifts. They lack breething air. This situation does not agree with sanitary norms, it stimulates various diseases, which later are distributed outside prisons. It is commonly known that the most frequent disease in prisons is TB.
To cure the incarcerated is very difficult since the corresponding medical establishments are overcrowded almost by half.
Some kinds of punishments defined in the Ukrainian Penal Code of 1960 have stopped to be actual. Now two parallel drafts of the Penal Code are being developed: one by the work group of the corresponding commission of the Supreme Rada, another by the work group of the Cabinet of Ministers. Preference was given to the latter draft, and in October 1998 it was considered by the Supreme Rada and adopted in the first reading. The draft of the new Penal Code (PC) is undoubtedly better than the operating one, since it takes into account the practical experience, the modern level of development of social relations and a crime level in the country. The new draft contains positive changes concerning punishments: kinds of punishments are listed from less stern to more stern ones. The new draft to a certain degree takes account of the international legal documents which were accepted at congresses discussing methods of fighting crime. The rules of treatment criminals are milder, which accounts for the UNO resolutions.
For comparison, the drafts of the Penal Code list 12 kinds of punishments while in the Recommendations of the UNO General Assembly 45/108 the list of punishments consists of 15 items, excluding the incarceration. Besides the Recommendations suggest to divide the punishments into prison and semi-prison ones, depending on the category of convicts, their danger to society, their wish to correct, etc.
In the Ukrainian penitentiary system the old criminal institutions still exert influence. The modern approach in the determination of the kind of punishment, on the one hand, does not take account of the influence of the criminal law on the condemned as a preservation reaction of the society, while, on the other hand, the application of force on the side of the state as an institute of protection of an individual from crime.
Co-chairman of the Kharkiv Group for Human Rights Protection
PROBLEMS OF REFORMING THE PENITENTIARY SYSTEM
OF UKRAINE AND THE DRAFT OF THE PENAL CODE
Ukraine is one of the European champions in the number of the incarcerated. According to Ivan Shtanko, the head of the Penitentiary Department, there are 32 preliminary prisons, 129 penitentiary establishments for adults and 11 colonies for minor criminals. On 1 July 1998 these establishments contained 236 thousand, which makes 472 per 100 thousand of population (see the newspaper “Den” of 13 August 1998). Not long ago, in 1994 there were 161 thousand of the incarcerated, i.e. 310 per 100 thousand. This growth is due, in our opinion, to the escalation of the economic crisis and the general tendency of making the penal policy more cruel, as a reaction to the growth of crime. A vicious circle appeared: in order to diminish crime the state uses more and more cruel measures of punishment, which result in the growth of the number of convicts, in the deterioration of living standards in penitentiary establishments, which results in the growth of recidivism and in a more cruel society, as a whole, which results in the further growth of crime and so on. The society lacks resources for the construction of new penitentiary establishments, and the inadequate financing for the existing establishments is not given in the planned quantities. That is why all our discussions on the reformation and humanisation of the penitentiary system will remain empty words, until the penal policy is as cruel is it is and the penitentiary establishments are given the duty to reform and correct the convicts. I believe that penitentiary establishments must execute punishment, i.e. carry out a complex of restrictions relative to the convicts and minimise the damage done. As to correcting and reforming convicts, this is the task for the entire society, not for the prison personnel. To facilitate the participation of the society the penitentiary system must become more open. What concerns minimising the number of the incarcerated, it is the task of the legislator, who must change the Penal Code and the judicial practice by introducing alternative punishments.
Yuri Kravchenko, the Minister of the Interior, once said that preliminary prisons contain two times more prisoners than their capacity allows and that the colonies of the strengthened regime contain 13 thousand extra convicts. According to the data obtained by us from the Ministry of Interior, on 30 January 1994 30 Ukrainian preliminary prisons, with the total capacity of 11300, contained 38900 prisoners, i.e. 3.44 times more than according to the norms. Since that time the situation has hardly improved, since the number of criminal cases considered by courts increases every year. Aleksandr Ptashinsky, deputy head of the Penitentiary Directorate of the Ministry of Interior, quoted such data: on 1 February 1997 32 preliminary prisons contained 43700 prisoners. He mentioned that 3 preliminary prisons with the total capacity of 1800 convicts had been opened during the last five years (the newspaper “Den” of 26 March 1997). It follows from here that the problem of overcrowding preliminary prisons remains very pressing.
Colonies are overpopulated too. By the data on 1 February 1997 about 173000 convicts filled 137 colonies of the total capacity of 166000 (the newspaper “Den” of 26 march 1997). These are average data, and certainly in several places the situation is much worse. For example, in the colonies of strengthened regime of Donetsk region the ratio of the incarcerated to the nominal capacity is 1.73. Such conditions result in the growth of diseases. The only realistic way out is not to build more prisons, but to apply alternative kinds of punishment. Even in the opinion of the prison personnel more than 30% of the incarcerated should have been punished otherwise. According to Aleksandr Ptashinsky, 85800 criminals out of 242100 condemned were incarcerated, 56.6% of them for short terms. It can be concluded from here that the proportion of those, who can be punished without incarceration, is rather large. What concerns overcrowding preliminary prisons, the administration of the penitentiary system believes that about 57% of the inhabitants of preliminary prisons could have been released on bail.
The Supreme Rada adopted in the first reading the modified draft of the Penal Code. It is important to understand what positive changes the draft contains. To our pity, we have to say that the new Code is, upon the whole, more cruel than the operating one, and the upper limits of incarceration are longer. Nonetheless, the variety of punishments is greater in the new Code, so the situation in penitentiary establishments will much depend on the judicial practice. The draft contains no mention of probation; among new measures of punishment the arrest from 1 to 6 months is mentioned and the restriction of freedom, which is explained as follows: “A person is kept in penitentiary establishment of the open type without the isolation from society, under observation and with the compulsory duty to work”. This kind of restricting freedom may be applied for the term from 1 to 5 years. According to the authors of the draft, this measure will be introduced instead of the existing colonies-settlements. No other details of such punishment are given in the draft. To our pity, the draft considers reforming and correcting convicts as one of the goals of the prison personnel, which imposes on the personnel the function beyond its strength.
There is one aspect more concerning the topic under consideration. The draft of the Penal Code does not stipulate responsibility for such a crime as torture. In the conclusions and recommendations of the UNO Committee against torture of 30 April 1997, which are based on the 3rd periodical report of Ukraine on executing the UNO convention, it was clearly and distinctly suggested to define the notion of torture in the legislation and to stipulate responsibility for torture. On 4 November 1998 the European Committee on torture considered the report on the visit of Committee delegation to Ukraine, and soon we shall learn about the conclusions of European experts. I believe that the conditions of upkeep in some penitentiary establishments will be regarded as torture. Our supposition is based on conclusions of the Special reporter of the UNO Commission on human rights Nigel C. Rodley, who visited Russia on the invitation of the Ministry of Interior in order to inform him on the course of the court reform and measures taken to improve the status of convicts. Mr. Rodley made the following report (Document E/CN.4/1995/34/Add.1). In the Section “Conclusions and Recommendations” Mr. Rodley wrote the following:
“The conditions of upkeep of inhabitants of the Butyrskaya prison and in the preliminary prison “Matrosskaya Tishina”, especially in so-called common cells, are terrifying. It seems they are not unique in Russia in this respect. I would need the poetic talent of Dante and the artistic mastery of Bosch to depict the hellish conditions which I observed in the cells. It revolted my feelings of smell, touch, taste and vision. The conditions are cruel, inhumane and degrading; such standard of living is a torture. In the preliminary prison people are kept with the purpose of forcing them to confess. It is equivalent to torture.”
Alas, Ukrainian conditions do not differ much from Russian ones.
As we have pointed before, the Ukrainian legislation does not contain a definition of torture or cruel and degrading treatment. Something similar is listed in the articles for misuse of power followed by “violence, applying of weapons, or actions which torment and insult the victim” (Article 166 of PC of Ukraine, Part 2), thus forcing to confess the suspect, “combined with application of violence or mockery and insulting the interrogated” (Article 175 of PC of Ukraine, Part 2). These crimes, according to Article 7-1 of PC of Ukraine, are grave; they remain grave in the draft of the new Code. Nonetheless, the absence of clear and distinct definitions of torture and degrading treatment harasses the qualification of some actions of state officers. Owing to this, many criminal actions of state officers remain unpunished and, what is worse, are understood as normal.
It should be noted that the prison personnel is a hostage of the situation because they themselves cannot improve the conditions of upkeep of prisoners. Nonetheless, the existing objective reasons which cause inhumane conditions in penitentiary establishments (such reasons as insufficient financing due to the economic crisis) cannot be regarded as mitigating. The references to the public opinion as the basis for making penal legislation more cruel are incorrect. Cruelty breeds more cruelty and this escalation of cruelty is one of the reasons of the growth of crime. Changing the situation needs, first of all, the comprehension of the problem and the political will of the legislators. It is necessary to break the vicious circle.
Co-ordinator of the Ukrainian-American Bureau
of Human Rights Protection, Kharkiv
THE ROLE OF PUBLIC ORGANISATIONS IN REFORMING
THE PRISON SYSTEM
Unfortunately, Ukraine belongs to a group of countries that are leading in the number of the incarcerated per 100 thousand of population. This results from a number of factors, such as the national judicial policy, criminal law, activity of investigating agencies. There exist reasons of more abstract nature, such as a traditionally scornful attitude to an individual, nihilistic attitude to the right on behalf of both state officials and citizens, the absence of the developed civil society. It is possible to solve the entire complex of political, juridical, economic and moral problems, only if all interested organisations and people unite, certainly, with the participation of the state. Can public and, in particular, human rights protection organisations participate in reforming the prison system? Can they actively influence these reforms? How can their good intentions be realised in the system that traditionally repels the attempts of outsiders to interfere? Will the state accept this aid? The question can be set wider: does everybody understand that the development of the state in the context of declarations on its law-abiding and democratic character declared in the Constitution is impossible without a strong civil society? Only if the answer is positive, then the entire reform of the judicial system and of its penitentiary fragment can be carried out. Yet, it will be very difficult to concord the actions. In any case, nowadays the post-totalitarian state is not sure that the system must be open. As an example, we may take the current transfer of the penitentiary agency from the Ministry of Interior. This transfer is carried out without giving any information to the outside world, as if this event is an insignificant change which does not concern the enormous number of Ukrainian citizens. If one takes into account that more than 200 thousand stay in penitentiary establishments, that in a year about 600 thousand of crimes are committed and that the number of victims of these crimes is not less, then it is easy to see how weakly the population behind the barbed wire, current or potential, is tied with the remaining part of the population.
Human rights protection organisations pay attention to the needs of the penitentiary system and thus take care of the future of the society. Nowadays a high level of crime in the society exists and the bulk of the guilt lies on the state and on the law enforcing agencies.
Let us make a small deviation from the central topic. Everybody knows that they beat in militia, beat during detainment, beat during ODA. Raids to catch minors are very popular. It is true that under-age crime grows, their crimes become more and more cynical and aggressive. But what are the raids: treatment or prophylaxis? Will minors become in future respectable and law-abiding citizens after such treatment? This is a rhetoric question. Both today and in the near future this problem is exceedingly important. The fact that the legislation organs do not adopt needed acts and the prosecutors office keeps silence looks like an encouragement. Everybody knows the problem, but they pretend that nothing terrible happens. This problem is closely related to another very important problem — the number of the incarcerated. The evidence mostly obtained under moral and physical pressure becomes the main argument of the prosecutors. As a result, the accused and the condemned fill preliminary prisons and correcting labour colonies.
We need legal norms that would not allow the investigation without an advocate or a representative of the detained, we need legal norms on the compulsory forensic expertise (including the alternative one) on the request of the detained. Public organisations may direct their representatives to district precincts, to study the proper law and lobby changes in the law, jointly with theoreticians and practicians to determine ideology and philosophy of the solution of the given problem. These organisations must investigate actual problems on alternative punishment and on the purpose of punishment. All these questions are related with the duration of the punishment, hence, with the number of the incarcerated.
There is another important problem — the conditions of the upkeep of the convict. Certainly, here much depends on the economic efforts of the state, but the aid and the control on the side of human rights protectors is also needed. To render help is possible also through the common projects and co-operation with foreign funds.
The most important problem, in my opinion, is the reintegration of released convicts into the society. There is a system to put one into a penitentiary establishment, but where is the system to facilitate the way back? Can the system completely reject the resocialisation problem? Who must be in charge of it? They are permanent topics for discussion. The international community has long ago come to the conclusion that the return of the convict back to the society as a law-abiding citizen is the most important problem. It is often reflected in numerous international documents. But for the efficient work we need serious theoretical investigations in sociology, psychology, genetics, criminology, and the results of such investigations must be passed to practical workers. These activities must be planned: it is necessary to determine who must study which question.
What can be done by public organisations? One of the activities is, for instance, monitoring. It is necessary to gather full information of each convict: what is his family, how he estimates his crime and his verdict, under which conditions he is kept in the preliminary prison and then in the colony, whether he needs medical treatment, what is his nourishment, has he a desire and ability for education (general and professional), which are his relations with other convicts, with the administrations, with his teachers, whether he desires (and is capable) to return to his family, and so on, and so forth. It is desirable to know how fruitful is the assistance of religious confessions, is it possible to use their experience?
Public organisations can render juridical counselling: to explain where and how he can turn with his complaints, how to write them in the proper way. In some cases one should write a petition on behalf of a public organisation or a prosecutors office. Public organisations can deliver lectures both for the administration and for the convicts, can render assistance in the development of the curricula, attract specialists, search sponsors, write petitions on rendering social aid to the personnel, and so on. Public organisations can co-operate in solving questions connected with the productive work.
Public organisations must certainly work with mass media, understanding that the society must receive not occasional fragments, but a profound penetration into the problems. Our society actually does not suspect which are the true difficulties of the prison system, how great is the danger if the public control is weak. We would like to see the prison system to be maximally open. Even now some old myths are alive on prison and criminals. A special bulletin must be issued jointly with representatives of the penitentiary system, brochures for relatives of the incarcerated must be published as well. An important element is the work with the released, their families, rehabilitation centres, training centres for the personnel. It must be done by way of organising special conferences and seminars, exchange of the experience with colleagues abroad, delivering lectures on human rights, by the publication and distribution of special literature. Public organisations can assist in gathering information on the legislation and practice in other countries, can create the draft of the Criminal-Executive Code. The future of our society and of our state should be governed not only by the state and state officials, even if they are clever and responsible.
And when the interests of the society and the state do not coincide, the top priority must belong to the society.
Population 150 million
Number of incarcerated 999 thousand
In particular: condemned 744 thousand
minor criminals 20 thousand
inmates of preliminary prisons 255 thousand
Number of incarcerated per 100 thousand of population 695
correcting colonies 731
preliminary prisons 178
Penitentiary system is governed by the Ministry of Justice
Deputy head of the Department
of Correcting Work Main Directorate
of the Penitentiary System, Moscow
STAGES OF THE PRISON REFORM IN RUSSIA
At present the penitentiary system of Russia includes more than 3150 objects of administration. They are colonies, preliminary prisons, prisons, penal-executive inspections. The total personnel counts mote than 330 thousand. On 1 February 1999 23 thousand more were added to the personnel, since we acquired a new function — to convoy the condemned.
About 744 thousand of the condemned are incarcerated, among them 20 thousand of minors and 255 thousand of the suspects are kept in preliminary prisons. The incarcerated who already were convicted, but whose verdicts did not yet become legal are kept in the preliminary prisons too. Criminal-executive inspections supervise 620 thousand, who were condemned to the punishment without isolation from the society.
The total number of people related to our system, including the personnel, counts about 2 million. If one accounts for their relatives, then one shall have several millions of citizens who are very much interested in the problems of our system.
The penitentiary system of Russia has its peculiarities, owing to the history. The overwhelming majority of our establishments are situated in very distant places, which substantially complicates our life and functioning. Historically it happened so that many our establishments became kernels of settlements and towns, that our system has on its financial balance roads, kindergartens, schools, stadiums, clubs. The warden of a colony must, by hook or crook, guarantee the life cycle of all these enterprises. He has to organise birth delivering and funeral. Essentially, the warden of a colony is the president of a small state. He has his ministry of defence and of health, his security committee, his ministry of economy, of education, of industry and of agriculture. Our system is based on self-regulation. Now, when the budget financing is obviously insufficient, we return to the elements of the feudal system.
The composition of our population is criminal. More than 22% are condemned for premeditated murder or grave injuries. As much are condemned for robbery, pillage and rape. About 50% are incarcerated for economic crimes and theft. The number of criminals condemned for participation in armed gangs is steadily growing.
By analysing the situation in the penitentiary system of Russia, one can separate two stages. The first one, in 1991-1993, is characterised with the destabilisation of the system activity and by noticeable deterioration of all departments. The control over the convicts weakened, the living conditions both in preliminary and common prisons became abruptly worse.
The second stage, in 1994-1998, was the stage of step-by-step stabilisation and some rise of the industrial and economic activities. This change in the situation occurred due to organisational and legal reforms and important administrational decisions aimed at differentiation and humanisation of the conditions for convicts.
We started the reforms of the penitentiary system in 1992. We based on the necessity of concording the penitentiary laws with the Constitution of Russia, the Minimal Standard Rules of treatment of convicts, the Convention against torture and other cruel, inhumane or degrading treatment or punishment, the European Convention of human rights protection and other international instruments.
In December 1992 a new Penal-Executive Code was adopted. In accordance with it, the main tasks of our system are to regulate order and conditions in the penitentiary establishments, to determine the means of correcting the convicts, to protect their rights, freedoms and legal interests, to assist in the social adaptation. Thus, a new ideology of the penal-executive policy was reflected in the code. It realised the idea of the differentiation of conditions of the punishment, depending on the behaviour of the convict during incarceration. By today in all our prisons and colonies there are three kinds of conditions of upkeep. The common kind relates to the inmates of preliminary prisons. If a convict breaks the rules, then he is transferred to sterner conditions. On the contrary, those who show signs of correction are transferred to more liberal conditions. In correcting labour colonies for minors there is one more regime, the privileged one, i.e. living outside the colony, with preparation to release and assistance in resocialisation.
In recent years more than 60 laws, Presidents edicts, decisions of the government were adopted. They regulate development and reforms of the penitentiary system. The most important among them are the Penal and Penal-Executive Codes. A new version of the law on penitentiary establishments is almost finished and soon will be passed to the Duma. A new federal law on the detainment of suspects and accused has been adopted, as well as the law on ODA. A number of federal programmes: on strengthening the material and technical base of preliminary prisons, on the treatment of tuberculosis, on the improvement of employment have been recently adopted. Financing is still insufficient, but those drops that are directed to support the programmes help to solve the most painful problems.
The second stage of the reform has been realised during the last year. It was begun by the Presidents Edict of 8 October 1997. This Edict ordered to transfer the penitentiary system from the Ministry of Interior to the Ministry of Justice. The central apparatus of the Ministry of Justice counts about 400 persons, while that of the penitentiary system counts 710. Local organs of the Ministry of Justice practically do not influence our agencies. Our directorates are autonomous, as well as other agencies of the Ministry of Justice and directorates of Interior. The head of the penitentiary system has all the rights which he had in the Ministry of Interior. He has the right of conferring ranks, appointing to posts, in disciplinary punishments or encouragements. In the framework of the realisation of the Presidents Edict and executing the recommendations of the Council of Europe a complex of preparatory measures for the transfer of our system to the Ministry of Justice was realised during 1998.
The Transfer Act was signed on 31 August 1998. Upon the whole, the transfer passed smoothly and did not demand additional expenditures, to say nothing about little expenditures on making new blanks, seals, etc.
Before the transfer another federal law was adopted. It made changes in 18 operating laws of the Russian Federation and created a legislative basis for the functioning of our system within the Ministry of Justice. The same law stated social guarantees for our personnel concerning their service, the conditions, the pay, etc., until the new law is prepared. The draft of the new law is ready, and according to this draft no impingement of the rights of the personnel are stated. The draft was agreed by all interested sides.
On 30 October 1998 another resolution of the government was adopted which extended all the legal acts of the government which had been used within the Ministry of Interior to the present situation, under the Ministry of Justice. This resolution determines the order of protecting social privileges for the personnel and their families as well as for pensioners, concerning medical and sanatorium servicing. A decision is taken to create within the penitentiary system an autonomous pension service by 2000; the order is determined of the joint (with the Ministry of Interior) use of archives and communication networks; the corresponding changes are also introduced to the budget classification. According to the same resolution the penitentiary system will be directly financed from the state budget. A number of joint orders of the Ministry of Interior and that of Justice are issued. They are directed at the preservation of the established principles of organising the fight with crime and social guarantees for the personnel. A joint work is carried on the transfer of convoy functions from internal troops to the penitentiary system. The completion of this work is planned on 1 January 1999 with the transfer to the Ministry of Justice additional 23 thousand of positions.
Whether it is right or wrong that we have been transferred to the Ministry of Justice is not so important. Although it seems to me that our colleagues from Ukraine went by a more correct route, having formed the autonomous department. Nowadays, when we work under the Ministry of Justice, we do not feel any influence from their side. There, in the Ministry of Justice, they do not know our problems and our tasks. They do not touch us, and we do not touch them. The departments, which are busy with the ODA, which keep suspects and the accused, were taken out from the Ministry of Interior, and, perhaps, it is right. We must learn to work in a civilised manner and, I think, the close relations will weaken by and by, and soon the question of “third-degreeing” will be closed.
Only ten years ago one could rightly speak about closeness of the prison system in Russia. Now the situation is quite different. Representatives of a number of public organisations, such as “Guardian”, “New House”, “Faith, Hope, Love” and others often visit our establishments, rendering juridical, material and spiritual aid. Recently we have made a list of public organisations that co-operate with us. Upon the whole we counted about 100 guardian councils, about 200 charity organisations and about 500 commercial organisations, many religious organisations of various confessions and thousands of individuals who actively and permanently co-operate with our establishments. Last year they rendered aid estimated as 150 billion roubles (in the old currency). This makes 5% of the federal budget.
Contacts with mass media have substantially widened. For example, the newspaper “Trud” has a permanent column dedicated to the problems of the penitentiary system; in 18 months it published 27 issues of the column. During a year the administration considers more than 250 appeals of national and foreign mass media. Only during the last two months 50 visits of preliminary and common prisons for representatives of mass media have been organised. During the first half-year 150 various notes and articles on the activity of out system were published. So, the assertions that penitentiary establishments are closed for mass media are groundless now.
Upon the whole our society understands that a well-operating penitentiary system is one of the necessary conditions of the successful fight with crime and the support of the necessary level of order in the country. In order to solve the most painful problems it is planned to develop and realise, with the support of state organs of the legislative and executive power, a complex of measures to normalise the situation in penitentiary establishments. It does not mean that we underestimate the great assistance from public organisations. We are prepared to co-operate with those who constructively participates in the solution of our problems. Our doors are always open to them, we expect their coming and we are prepared to fruitful co-operation.
Chairman of Nizhniy Novgorod
Human Rights Protection Union, Nizhniy Novgorod
PENITENTIARY ESTABLISHMENTS IN THE CHARGE OF PUBLIC
ORGANISATIONS: EXPERIENCE OF NIZHNIY NOVGOROD REGION
The control over and the assistance to penitentiary establishments on the side of the public depends upon the degree of public interest to problems of the incarcerated. Today public organisations in Russia, and in particular in Nizhniy Novgorod region, have accumulated sufficient experience, although the forms of public control are still imperfect.
1. History of public initiatives
Everything began with separate actions of human rights protection organisations, charity organisations and religious confessions in early 90s. In 1993 the first Russian organisations appeared that rendered assistance to the incarcerated. The activities of various groups and funds soon branched into two main directions: charity and human rights protection.
Religious confessions have a legal justification to work in penitentiary establishments. Since 1994 they have got the opportunity to attend colonies. In Nizhniy Novgorod region Catholics, Seventh Day Adventists, Baptists and other missionaries started to work in prisons and colonies. Most of all they attended the most “open” colony for women. Neighbouring colonies EO-5 and EO-9 were visited rather often too; parishes of Evangelist confessions appeared in these colonies. The religious organisations passed to the incarcerated not only clerical literature, but also humanitarian aid. The Christian mission “Dawn” attended EO-9 regularly.
Since 1995 the interest of exotic confessions to penitentiary establishments decreased drastically, but instead the Russian Orthodox church increased its activity. Orthodox priests began to appear in the colonies. The activity of the Orthodox church and the positive attitude of the administration resulted in the creation of rooms for prayers in the majority of colonies; in some of them churches were built. By the Metropolitans decision the colonies are ascribed to parishes. Nonetheless, in practice, the attendance of colonies mostly depends on the initiative and insistence of clerics.
The experience of the educational work with the convicts of Ardatov colony by Father Mikhail and clerk Eugen Paniushkin from the Znamenskiy cathedral is especially successful and well-known. They have permanent contacts with the incarcerated for several years. Along with the spiritual mission, the Znamenskiy cathedral began to collect charity for the colony. Minor convicts were provided with medication, vitamins, clothes and food products from the charity sources. Only in 1997 the colony got from the Znamenskiy cathedral the aid worth of 186.5 million roubles, in 1997 activists from the town of Ardatov founded charity and human rights protection organisation “Sretenye”.
Public organisations began to assist the incarcerated later than religious confessions. They rendered a different sort of aid passing mainly medication and books. The Nizhniy Novgorod Human Rights Protection Union (NNHRPU) presented more than six thousand books to colony libraries since 1994. In 1995 on the NNHRPU initiative, supported by the region administration, the Guardian Council was founded. With the active assistance of businessmen of the region the Council started to render assistance to colonies by food products, medicine and building materials, and since 1997 the Council started to promote the orders for the goods produced in penitentiary establishments. In 1998 the Council created the centre which is in charge of ordering and sale of goods produced in colonies. The centre of resocialisation will be organised for the released convicts in the town of Dzerzhinsk. Public organisations also collect charity for the AIDS and TB infected.
The juridical aid to the incarcerated is an important contribution of public organisations. The incarcerated, being completely dependent on the administration, cannot protect their rights. They do not know exactly, which rights they have, and the only source of similar information is from human rights protection organisations. In case of an illegal punishment or a refuse to fulfill his legal requests, the incarcerated turns for consultation and support to a human rights protection organisation. NNHRPU receives about 50 such applications monthly.
Since 1998 NNHRPU, jointly with the charity fund “Brotherhood”, carries out the defence of the incarcerated in court. The main target of this programme is to transfer conflicts between an incarcerated and the administration into the legal channel, to make these clashes legal, without leaving the framework of law. In future this will permit a better protection although today the convicts, who are ready to defend their interests in court, are persecuted by the administration more than, say, those who went on a hunger strike.
The NNHRPU also created “League of relatives of the incarcerated”. Thanks to this organisation relatives of the incarcerated can realise their legal rights, without apprehending that their incarcerated kinsman will be persecuted. By today the League has carried out monitoring of colonies of the region and collected information on a lot of illegal prohibitions and restrictions for the incarcerated and their relatives.
Estimating the experience, one can mark out the following fruitful directions:
collecting and distributing information on the status of the incarcerated; visiting the incarcerated; organising legal consultations of the incarcerated; representing them in court; directing requests to the corresponding instances and receiving official information; collecting and distributing the charity aid; rendering assistance in getting orders for the products of the labour of the incarcerated; assisting in social rehabilitation of the incarcerated.
2. Conditions of development of the public control
Before 1992 the public assistance and the spiritual support in penitentiary establishments were practically impossible. Public initiatives had to be compatible with the interests of the authorities. Only when a new article “Guaranteeing the freedom of consciousness of the incarcerated” was added on 12 July 1992 to the Federal Law, the attendance of colonies by clerics became legal; after 1994 distributing material aid for the incarcerated also became permissible.
While charity initiatives developed, the public control in the legal vacuum was practically non-existent. The public control in the Correcting Labour Code was defined as a necessary state-significant form of the participation of the public in reforming criminals. This participation was realised mainly through observing commissions. These commissions organised by the administration just imitated work. However, in Nizhniy Novgorod region we managed to include human rights protection activists into such commissions, after which the commissions became useful for real assistance to the incarcerated.
The adoption of the new Penal-Executive Code did not widen the legal basis of the public control and the more liberal law “On public control”, mentioned in the Code has not been adopted yet. Meanwhile the situation with human rights protection organisations, which attempt to protect the incarcerated, has not changed. Until now their activity is not accepted by the conservative penal-executive system. Human rights protection activists are admitted to colonies only as an exception. This certainly does not enable human rights protection and charity organisations to pass to more efficient forms of assisting the incarcerated.
Lack of rights of public organisations today is inadequate to their significance and potential. That is why the attempts are made more and more frequently to switch the interrelations between public organisations and the administration to the contract type. Some organisations have already concluded agreements with penitentiary establishments as to charity assistance and manadgement of the colony production.
However, one should not expect that the administration will be willing to conclude such agreements. Usually the agreements are concluded with the support from above.
The positive experience of this sort is accumulated in Poland. As long ago as in 1993 the Main Directorate of the penitentiary system of this country and the public organisation “Patronage” concluded an agreement, which introduced partnership relations between the both sides. The Directorate took the obligations to inform “Patronage” on the situation within the system and to permit their access to colonies. In its turn “Patronage” promised to agree with the Directorate the candidatures of its curators and promised to render charity aid.
Russia must pass a long and difficult road of development to achieve such results. For the time being public organisations can achieve small improvement of the relations by patient persuasion of the administration. In Poland they managed to do it rather soon through the training centres for the prison personnel, through public lectures and courses on human rights. We, in Russia, shall have to pass this road.
Population 4.1 million
Number of incarcerated for July 1997 10.485 thousand
In particular: condemned 6.391 thousand
Number of incarcerated
per 100 thousand of population 256
for women 1
correcting labour colonies 1
social rehabilitation establishments 1
Penitentiary system is governed by the Ministry of Justice
since the end of 1995
Chief of the Staff of the Department of penitentiary
establishments Ministry of Justice of the Republic of Moldova
In accordance with the obligations taken by the Republic of Moldova when joining the Council of Europe and according to the judicial legal reform carried out in the republic, the penitentiary system was transferred in the end of 1995 from the Ministry of Interior to the Ministry of Justice. It was done by the Presidents edict and resolution of the government.
Organs and establishments of the penitentiary system execute the punishment in the form of incarceration, restriction of liberty, correction works, and coercive treatment of alcoholics and drug addicts by the court decision.
To this end, the system comprises 19 establishments, 13 correcting colonies, in particular, one colony for women and one for minors, 4 prisons, an establishment for social rehabilitation and a multi-profile hospital. More than 10 thousand of the convicted serve their sentence in the system. For punishment not connected with incarceration there are 5 correcting labour establishments and 44 correction inspections. About 7 thousand serve this kind of punishment.
Administration of the penitentiary system is the function of the Department in the Ministry of Justice. The Department has the right to draw generalisations about the penitentiary practice, development and co-ordination of executing the international obligations and national programmes, perfecting the material, financial and other aspects of the system.
According to the Penal-Executive Code, the penitentiary establishments are divided into correcting and reforming colonies (of semi-closed type), and prisons (of the closed type). The correcting colonies make the main type of penitentiary establishments and they are intended, as well as prisons, for keeping adult convicts. The correcting colonies are subdivided into ones of common regime and strict regime, as well as settlement-colonies. Reforming colonies are intended for minors.
During the first half of 1997 the number of the convicts grew, compared to the same period of 1993 from 9733 to 10485, the increment being 1.7%. The most of the convicted committed property crimes. As to the education of the prison population, the people with secondary education prevail; their number is 3335, which makes 49.9% of the total number.
At present there is only one colony of strict regime where convicts, who committed crimes two or more times, are kept. The recidivist crime is growing, and it will demand the opening of new colonies of strict regime.
The growth of the prison population was reduced by amnesties of 1994 and 1997, which resulted in releasing 1810 convicts. Because of the change of the penal law and abolishing the death penalty, a new category of the convicted for life has appeared. The number of such convicts is growing, and we intend to reconstruct one of the prisons for them.
The study of the judicial practice shows that the increase of terms of incarceration, in particular, for grave crimes, will lead to the growth of the incarcerated, on the average, by 1200 per year.
Population 6.6 million
Number of incarcerated about 26 thousand
women about 240
Number of incarcerated
per 100 thousand of population 393
correcting labour colonies of common regime 6
colonies of strengthened regime 3
colonies of strict regime 3
colonies of special regime 1
reforming labour colonies 1
specialised hospitals 1
Penitentiary system is governed by the Ministry of Justice
since January 1993
Azer Mirsalekh ogly Seidov,
Deputy Head of the Penitentiary
Department Ministry of Justice of Azerbaijan
ON THE ROAD TO LAW-ABIDING SOCIETY
Having become independent and a UNO member, Azerbaijan carries out the policy aimed at the integration with democratic and civilised countries, as well as the protection of human rights and freedoms.
The new tendencies have reflected in the work of penitentiary system. Recently we have done a great work, having taken decisive measures for getting rid of the old mentality, typical for the GULAG system, where the punishment dominated over human personality. I want to remind that Azerbaijan was the first republic of the former USSR that transferred her penitentiary system into the Ministry of Justice (in January 1993).
Throughout the world this practice is considered the most democratic. It guarantees the maximal protection of rights and interests of the incarcerated. If, during the detention of the criminal and the ODA there appear negative relations between the criminal and the law-enforcing agency, they must disappear at the stage of executing the punishment. That is why the transfer of these functions to a “neutral” structure is quite reasonable, and the experience of our system after the transfer completely confirms the positive influence of the transfer: the crime rate in the penitentiary establishments dropped, such extreme events as mass disorders, group disobedience, escapes, taking hostages, etc. drastically decreased. The incarcerated became calmer and easily controlled. The attitude of the convicts to the administration changed and became more well-disposed.
Nonetheless, the transfer to the Ministry of Justice was not just a change of signboards — it was a complicated process, which demanded organisation changes and solution of many problems.
Having become an autonomous state, Azerbaijan came across the problem of locating some categories of the convicts. Within the USSR the republic had no penitentiary establishments for keeping the former workers of the law-enforcing system; neither we had establishments for keeping especially dangerous recidivists. Criminals of these categories were directed to various places of the former Union, which told negatively on the preservation of social and family ties. The results of such policy affected negatively the correction of the criminals and the further fate of the convicts. As a result of the Karabakh conflict the functioning of the only prison in Shusha was terminated. In order to solve the above-mentioned problems we had to build three new penitentiary establishments: a colony of special regime, a colony for keeping former workers of law-enforcing system, a new prison and some other penitentiary establishments on the base of former ones.
In the Soviet times the places of incarceration were covered by the “iron curtain”, any information about them was never published in mass media, because it was classified. The legal norms about the participation and control of public organisations were practically disregarded.
Now prisons and colonies became open for the public, the problems of penitentiary establishments are widely discussed in mass media, representatives of the penitentiary administration take part in TV shows and answer questions from the audience. One day in a week we hold “the day of open doors” for representatives of mass media, NGOs, human rights protection organisations.
We co-operate with foreign NGOs as well. The international Red Cross has been assisting us in the treatment of tuberculosis among the released. We have a separate hospital in our country for the treatment of TB. In all penitentiary establishments the inmates undergo examinations for AIDS, VDs and TB. Immediately after finding one of these diseases, they are directed to the corresponding hospital.
Foreign citizens and apatrides are kept under equal conditions with Azerbaijan citizens, they have all their rights and privileges, they have the right to communicate without obstacles with organisations which took the protection of their interests.
We continue negotiations with foreign penitentiary systems on the exchange of the incarcerated. Scores of convicts have been already exchanged. The policy of our state in the execution of punishment has a tendency to further humanisation. Among other directions, we try to diminish the number of the incarcerated. In the beginning of 1993 the President Geidar Aliyev made another humane step: he restored the custom of mercy. Since the second half of 1995 more than 2500 criminals were pardoned by presidential edicts.
In May 1996, by the initiative of the president, the Millie Medjliss (Azerbaijanian parliament) decided to carry out an amnesty. Applications of about 10 thousand convicts were considered, and the majority of them were satisfied. The order on the amnesty contained concrete instructions to state organisations and the involved NGOs about the assistance to the released in their adaptation to normal life. Besides, we widely use the pre-term release or making the punishment milder.
Here we shall dwell on the most acute problem — that of the death penalty. Since 1993 the moratorium has been declared on the execution of the capital punishment. To some criminals the death penalty has already been exchanged by the incarceration for life. At last in 1998, by the initiative of the President, the Millie Medjliss adopted the law on abolishment of the death penalty and introduction of the imprisonment for life.
The rights of the convicts have been lately increased and the restrictions, in particular, concerning their contacts with relatives, decreased. Now they can send and receive correspondence without restriction and without censorship. All convicts are permitted to have visitors, and the permitted number of visits increased by ten times in the common-regime colonies, by six times in the strengthened-regime ones, by four times in the strict-regime ones. The procedure of receiving parcels became more liberal, and telephone conversations are allowed.
According to the new Constitution of Azerbaijan, the convicts have the right for the freedom of consciousness and for personal security. They have annual paid leaves and some of the convicts may spend the leave outside the penitentiary establishment. Their work is counted into the total length of labour. The deductions from their wages aimed at the upkeep of the penitentiary system and personnel are reduced almost by two times. The convicts may work individually, they may insure their health, life and property, they can purchase securities and obligations. They have the right for medical paid services and for opening bank accounts. The list of encouragements is increased, and the list of punishments is decreased.
The convicts have the right to participate in the election to the Millie Medjliss, recently they participated in the referendum for adoption of the new Constitution. They participated in the privatisation process and got their vouchers. There are positive changes of everyday life, the improvement of living accommodation, better nourishment and medical service. A number of laws are developed aimed at improvement of penitentiary establishments.
We have some problems. The first of them is the training of the personnel. Although we have agreements with Western countries, there are no positive changes in the training of the personnel. Another serious problem is the mass unemployment among convicts: at best 10% of them have jobs.
We held an international seminar on strengthening ties between penitentiary establishments of the post-totalitarian countries. Our officers visited Italy, England, they studied the prison systems of France, Finland, Poland, Iran, Pakistan. The officers from the Main Directorate participated in seminars held by the Council of Europe. We translated the European penitentiary rules into Russian and Azerbaijanian.
All the complex of measures of reforming the penitentiary system serves to fulfil the main task: to guarantee the complete observance of rights, freedoms and interests of the incarcerated. The results of this work permit us to declare that Azerbaijan possesses a place in the first row in the community of civilised law-abiding states.
Director of the Human Rights Protection Centre of Azerbaijan
Co-ordinator of the project
SITUATION IN AZERBAIJANIAN PENITENTIARY ESTABLISHMENTS (AN EXTRACT FROM THE REPORT OF THE AZERBAIJANIAN
CENTRE OF HUMAN RIGHTS)
In accordance with testimonies of national and international organisations, as well as the administration of the penitentiary system of Azerbaijan, the conditions of the upkeep of prisoners in Azerbaijan are far from the world standards. Usually it is explained by the difference between the world and Soviet penitentiary systems, on the one hand, and the economic crisis resulting in the lack of finances for reforming the prison system, on the other hand.
The official figures of the total number of the incarcerated in Azerbaijan have never been disclosed, being the secret of the agency. However, the total number can be computed in the indirect way. Thus, it was reported that in June 1997 there were 240 incarcerated women and 160 incarcerated minors, which made 1.2% and 0.6% of the total number, respectively. By solving the proportion we shall obtain 20 — 26 thousand of the incarcerated. The variation is due, perhaps, to the official statistics which did not account for the women staying in colonies-settlements. During the first half of 1997 the government gave out 500 millions manat (125,000 USD) for the upkeep of the incarcerated, which makes about one dollar per month per capita.
According to the official data, there were attempts of state coups because of which about 900 people were arrested. About 750 of them were registered by the Human Rights Protection Centre of Azerbaijan. By the data of this Centre, the average political prisoner has the term about ten years of the strict regime, and usually they have no chances to be amnestied. Yet, by now about 50 people who were convicted as “political” cases and as “non-political” cases (such as illegal storage of firearms, hooliganism, complicity before the crime, etc.) have already been released.
One of the prisons, Bailovskaya, is notorious by many suspicious deaths of a number of political prisoners. For instance, we may mention the deaths of the former commander of the Agdam battalion of self-defence Yagub Rzaev (who died on 16 July 1993), a bodyguard of the former Minister of Defence Natig Gurbanov (15 May 1994), an activist of the popular front Novruz Novruzov (6 February 1995), the opponent of the President Seyfal Babayev (19 November 1995), the vice-chairman of the social-democratic party Aypar Aliev (25 November 1995). Not a single death in this list was duly investigated with making the results public, although Amnesty International demanded it in the connection with Aypar Alievs death.
Preliminary prisons experience great hardships, since they are overcrowded, and their inmates are underfed. Human rights protection activists quote some occasions when the medical service was inadequate.
After the protests of the local opposition and international human rights protection organisations a joint commission was formed by the Republican Prosecutors office and the Ministry of Interior. This commission carried out a complex inspection of a number of prisons in December 1996. In the course of this inspection the commission confirmed many facts listed in the complaints. Mainly these were bad sanitary conditions and diseases of some convicts. Dampness and lack of air in cells sometimes led to tuberculosis. Having confirmed occasional deaths of convicts due to bad sanitary conditions, N.Mamedov, the department head of the Directorate of Public Security of the MI, pointed out the decrease of deaths during recent years.
What concerns violent actions of the personnel in preliminary prisons, the prosecutors office started criminal cases against eight members of the personnel in 1996.
In 1997 the fifth building of the Bailovskaya prison was visited several times by delegations from the Council of Europe, who were interested in the conditions of upkeep of the prisoners condemned to death. The human rights protection organisations do not know of similar inspections of preliminary prisons by either the Ministry of National Security or the Special Department at President. Nobody ever inspected the preliminary prison of the Chief Directorate of police of the city of Baku. This prison is today the most closed one for mass media and human rights protection organisations.
The penitentiary system of Azerbaijan includes the following establishments of the “closed type”: 6 correcting labour colonies of common regime, 3 colonies of strengthened regime, 3 colonies of strict regime, 1 colony of special regime, 1 reforming labour colony, 1 prison and one specialised hospital. The penitentiary system also contains establishments of the so-called “open type”, i.e. correcting labour colonies settlements for people, who committed crimes by accident (2 colonies), and for people transferred from colonies of the closed type (6 colonies), as well as the special commandants office for the conditionally convicted (10) and for conditionally released before their term (11).
Azerbaijan, according to Article 36 of the Correcting Labour Code must have reforming labour colonies of the common regime (for minors condemned for the first time) and of the strengthened regime (for recidivists). However, the state cannot afford so many colonies: there is only one colony where the two regimes are combined. The colonys capacity is 150 inmates, and, in contrast to other colonies, it is not very much overcrowded. By 1 September 1997 it contained 170 minors. The warden Aydyn Abbasov said (in February 1996) that 95% of the colony population are children from orphanages and unfavourable families, 60% of crimes were crimes against property, 15% of crimes were murders. The minor criminals age is from 14 to 18 years, the prison term is up to 10 years, the proportion of recidivists is 55%.
Svetlana Medzhidova, a psychologist who investigated colonies in Azerbaijan and Russia writes that mentally retarded children and debils make about 60% of the colony population. In colonies they often become passive homosexuals. 16 convicts escaped form the colony in 1994, after which the conditions of the upkeep became stricter. For girls-criminals there is no special colony, they are kept together with adult women.
As a protest against unsatisfactory conditions of the upkeep or against violation of their rights, the convicts sometimes indulge in protest actions. All the protests are finally suppressed, but sometimes they attract the attention of people in power, and sometimes it improves the situation.
The most frequent form of the protest is hunger-strike. Ilgar Mikiailov, convict of colony ?12, had the longest hunger-strike: he went on strike on 10 July 1997 and did not take food during 51 days, just wishing to attract attention to the verdict which he considered unjust. He was condemned by Article 226 (illegal purchase of narcotic drugs). Such a long hunger-strike his brother explained by the fact that daily 200 grams of meat soup were pumped into Ilgar. This procedure forced Ilgar to stop the hunger-strike.
Prisoners from EOO-2 protested on 29 September 1995. They blamed the administration of the colony in violating human rights and in bribe-taking. To express their protest 120 prisoners climbed to the attic of the building and refused to get down. They demanded to change the administration, to stop corruption and to provide medicine to the diseased. The prisoners got down when the Deputy Minister of Justice promised to fulfil their demands.
On 17 May 1996 in EOO-7 there was a rebellion of convicts who protested against the conditions of upkeep, inadequate food and the system of surveillance. The prisoners wanted to climb on the roof too. During the negotiations of the prisoners with the warden the latter was wounded. the ring-leader was arrested and did not live to his trial. By one version he died of TB, by another — of brutal beating. One of the protesters committed suicide and other 10 were recently condemned to the terms from 4 to 11 years.
The long tradition of burying agency secrets in the Soviet time has survived, and the top administration dislikes the public control over the situation in the establishments headed by them. Ramil Usubov, the Minister of Interior of Azerbaijan, denying the rumours on torture and similar forms of pressure upon suspects in the course of the ODA, said that “distribution of groundless accusations aimed at law enforcing bodies of the republic encourages those forces which have not yet refused from hopes of coming to power in an anti-Constitutional way”, i.e. he identified the attempts to investigate violations of law with anti-state activities.
On 19 June 1997 Mamed Zeynalov, the former Deputy Minister of Justice, gave a press-conference devoted to the creation of the non-government “Fund of aid to prisoners”; the idea of its creation was approved in April by the Co-ordination Union of human rights protection organisations. Mr. Zeynalov said that the fund is not a political organisation and that it is aimed at solving problems in the Azerbaijan penitentiary system. Zeynalov added that after June 1993 the number of the incarcerated in prisons has increased and the upkeep conditions have abruptly deteriorated. The fund intends also to render material aid to families of the incarcerated. Yet, up to the present, nothing is known about the practical activities of the fund.
Population 3.5 million
Number of incarcerated on 1.01.99 6596
suspects in preliminary prisons 1442
Number of incarcerated per 100 thousand of population 188
Penitentiary establishments: Total 15
reforming labour colonies 1
preliminary prisons 6
Penitentiary system is governed by the Ministry of Interior and
Deputy Head of the Department
of International Relations Ministry of Justice of Armenia
PENITENTIARY POLICY IN ARMENIA
Having become independent, Armenia passed through substantial political and economic transformations, which became the basis for new social relations. One of the most important transformations was the judicial reform in general and the reform of the penitentiary system in particular. At present we develop the new penal and penal executive legislation. The National Assembly of Armenia adopted in the second reading the new Penal Code.
By the resolution of the Government of 25 September 1998, a working group is created from representatives of the Ministries of Interior, Security and Justice, from the Prosecutors Office, the Cassation Court and the Juridical faculty of Yerevan University. This group has to develop the draft of the Penal Executive Code and present the completed draft by April 1999. One of the chief problems is to transfer the penitentiary system from the Ministry of Interior to that of Justice. The execution of this measure is one of the conditions for the acceptance in the Council of Europe.
This transfer generates a lot of problems. One of them is connected with the personnel, since the transfer changes the conditions of work and the status of the personnel. There are no training centres for the prison staff in the republic, so we are obliged to build such centres. The lack of financing forces the heads of separate penitentiary establishments to act autonomously. The solution of this problem must be treated in the new penal executive laws.
According to the new conception of the penitentiary legislation a punishment is applied with the aim of restoration of social justice, correction of the condemned, as well as prevention of new crimes. A special attention should be paid to the rights of the condemned and, certainly to their duties. The approach should be based on the Minimal standard rules of treatment of convicts. The determination of rights and duties of the incarcerated is already an important step in guaranteeing their security. The next important problem is to determine kinds and regimes of punishment. We have colonies of the common and strict regime, as well as prisons for those criminals whose term is more than 10 years. It is necessary to take into consideration new kinds of punishment stipulated in the new Penal Code and material resources of the country. At present the difference between colonies of the common and strengthened regime is small. The incarcerated of these two regimes are kept in the same building and are capable to communicate with each other. The same is true about prisons of the special regime. Perhaps, the new Penal Executive Code will account for these real conditions.
The new Penal Code of Armenia stipulates the following forms of punishments:
Fine. Losing rights to occupy certain positions or be involved in certain activities. Losing a special or military rank. Restriction of freedom. Arrest. Service in a disciplinary battalion. Confiscation of property. Incarceration for a definite term. Incarceration for life.
It should be noted that, first, the Code defines new forms of punishment, such as the restriction of freedom, arrest and incarceration for life, and, secondly, excludes some old forms, such as exile, correcting works without deprivation of freedom, deprivation of parents rights, etc. The last but not the least, the new Code does not include the death penalty.
The fine ranges from 10 to 500 minimal wages.
The restriction of freedom is carried out without isolation from the society, but the culprit must reside in special buildings for the term from 1 to 5 years. If the culprit tries to dodge this kind of punishment, the court may substitute the remaining part of the punishment by incarceration. In Armenia there are necessary conditions for executing this kind of punishment, in the form of colonies-settlements.
In order to have a fruitful co-operation with wide layers of the population we must stress the following factors, which determine the public opinion on the penitentiary system:
sufficient financing of penitentiary establishments; deprivation of freedom as the main form of punishment; protection of main rights and freedoms of the incarcerated; observance of the common international norms in treatment the incarcerated.
We must reform the interrelations between the society and the inmates of the penitentiary system and reflect this new level in the new legislation. We must make the penitentiary system more open to representatives of charity, religious and human rights protection organisations, which, because of a number of reasons pay little attention to prisons and colonies.
The above-listed organisations can help in the solution of the following problems:
making the public know about the situation of the incarcerated; helping them to adapt to life after their release; rendering special assistance to the most helpless categories, such as women and minors;
Measures should be taken to reduce the number of the incarcerated, since this number grows. Now in Armenia about 5000 people are incarcerated in 9 penitentiary establishments and in the central hospital, to say nothing about those who are kept in preliminary detention blocks.
The National Assembly of Armenia declared an amnesty on 15 September 1998 in order to commemorate the 7th Anniversary of independence. The amnesty permitted us to release 920 people.
At present the reform of the penitentiary system in Armenia is under way. It is many-sided. It must include introduction of international standards, together with implementation of some economic and economical measures, the steady modification of the public opinion on the penitentiary system with the aim of building a democratic society.
Population 4.5 million
Number of incarcerated exceeds 20 thousand
Number of incarcerated
per 100 thousand of population about 420
colonies of closed type 10
correcting labour colonies 1
preliminary prisons 5
Penitentiary system is governed by the Ministry of Interior
Deputy Head of the Kyrgyz Committee of human rights, Bishkek
SITUATION IN THE PRISON SYSTEM OF KYRGYZSTAN AND ACTIVITIES OF HUMAN RIGHTS PROTECTION ORGANISATIONS
Kyrgyzstan signed many international documents on human rights, which seemed to witness of the desire of the young country to obey the principles set by the Universal Declaration of human rights. Unfortunately, all the good intentions remained on paper without changing the reality. The present report describes the facts of torture and cruel and degrading treatment and punishment despite signing the corresponding UNO Convention of 26 June 1997.
In 1997 — 1998 the most frequent violations of the rights of the incarcerated and detained were the cruel treatment, psychological pressure, torture, lack of minimal sanitary conditions in cells. The legislation of Kyrgyzstan is not agreed with this Convention, and tortures blossom in practice. More than 20 thousand incarcerated are kept in all penitentiary establishments of Kyrgyzstan. The distribution according to the nationality is such: 40% of Kyrgyzes, 35.8% of Russians, 24.2% of others. One third of the incarcerated are punished for grave crimes and one third — for crimes against property. 36% of the incarcerated are young, 44% are recidivists.
The penitentiaries are overcrowded. For example, only in Bishkek three thousand are incarcerated, whereas the capacity is two thousand. The UNO rules demand four square meters for one convict, in preliminary prison ?1 in Bishkek the corresponding norm is two square meters. Such overcrowdness makes the inmates to sleep in turns. Nonetheless Kyrgyzstan is the UNO member already for 6 years.
Frequently investigators from the Ministry of Interior and prosecutors office keep suspects in preliminary prisons longer than it is stipulated by law. By 20 July 1998 more than 60 people were kept longer than they should be in preliminary prisons of Bishkek. For example, L.Kurmanaliev is kept in a preliminary prison for large-scale theft since 14 May 1998.
Constitutional rights of the preliminary prison ?1 in Bishkek are often abused. Court verdicts are not directed in time, and the condemned continue to stay in the preliminary prison. In the mentioned prison there are more than 30 such inmates. In Kyrgyzstan it is the conventional practice when people are detained on suspicion, and then their guilt is proved by applying various torture. For example, T.Kasymbekov was detained by the crime investigating officers of the MI. He was tortured all the night by beating and putting on his head a plastic bag. Having not squeezed the needed confession, the militiamen released him. Although he managed to get the expertise act on injuries, the General Prosecutors office did not start the criminal case, but directed his complaint to those officers who had tortured him. They detained and tortured him again.
In Kyrgyzstan the upkeep of the incarcerated is illegal and anti-sanitary. In preliminary prisons they put so many detained to a cell, that the capacity is exceeded by several times. The detained sleep in turns, relieve themselves in the cell, the food is foul and insufficient. The diseased are kept together with the healthy, they sit on cement floors. The conditions in the colonies are even worse. That is why the incarcerated are often ill with TB and other catching diseases.
Medicines are not provided. Because of this hundreds of the incarcerated die each year. Advocates and relatives are not admitted to many incarcerated. For example, Izbakiyev, suspected in the murder of Kolbayev, could not manage to meet his advocate for more than six months. The Penal-Procedural Code, operable in Kyrgyzstan, has been preserved from the Soviet time. This code stipulates that the advocate can see the accused only with the permission of the investigating officer; another rule reads that the advocate can have the access to the materials of the case only after the completion of the ODA. The new Penal Code, operating since 1 January 1998, contains no articles punishing for torture and cruel treatment of the incarcerated or detained.
The conditions of the upkeep in penitentiaries are such that they may be regarded as torture. Besides the obvious economic reasons, the conditions are so bad because the personnel is not informed of such international documents as the Minimal Standard Rules or the Convention against torture.
The Kyrgyz Committee of human rights recommends the authorities to introduce the following rules:
A suspect has the right not to answer any questions without the presence of his advocate.
Any law-enforcing officer must explain to the detained what rights he has.
The advocate must be permitted to look for documents denying or mitigating the crime ascribed to the detained.
Every convict must be medically examined during any transfer from one kind of a penitentiary establishment to another or in case of the complaint on the application of torture coming from himself, his advocate or his relatives.
Representatives of human rights protection organisations must be given the permission to attend every penitentiary establishment without obstacles and delay.
Population 15.8 million
Number of incarcerated about 75 thousand
condemned about 60 thousand
suspects in preliminary prisons about 15 thousand
Number of incarcerated
per 100 thousand of population 475
colonies of strict and special regimes 39
colonies for women 2
correcting labour colonies 3
special hospitals 8
preliminary prisons 17
Penitentiary system is governed by the Ministry of Interior
Kazakhstan International Bureau of human rights
SITUATION IN PENITENTIARY ESTABLISHMENTS OF KAZAKHSTAN
About 75 thousand are incarcerated in Kazakhstan, among them are 2500 women and 1100 minors, 30% of them are recidivists.
After the adoption of the new Penal Code, which agreed many articles with international standards, 24318 incarcerated were found non-guilty and released. Verdicts were reconsidered for 4013 people, of whom 1000 are TB cases, 900 are women and 80 are minors. 4290 incarcerated were released before the term conditionally. 50 thousand were sentenced to correcting labour.
650 incarcerated were released in 1997 and 186 were released during the first eight months of 1998.
1290 incarcerated died during the first eight months of 1998; among them 962 were ill with TB. In 1997 the number of the dead was 1491, and 1034 of them died of TB.
101 death sentences were executed in Kazakhstan in 1995. This is the fourth place in the world. Only one man was mercied. The Commission on Mercy at the President was reorganised in 1996. Representatives of the General Prosecutors office, the Ministry of Internal Affairs and the Supreme Court were Included to the Commission. As a result, 8 condemned to death out of 87 were mercied and 79 were executed. 8 people out of 56 were mercied in 1997.
Population 4.7 million
There are no data on the number of the incarcerated and penitentiary establishments. The Penal-Executive Code of 1967 is still operating although some amendments are considered in connection with the moratorium on the death penalty, introduced since 1 January 1999, and the amnesty. All the condemned to death got the prison terms for 15-years or for life. During last seven years, because of the amnesties, about 50 thousand of the incarcerated were released. In 1998-1999 the number of the released was 6517, and 562 got reduced terms of incarceration.
Penitentiary system is governed by the Ministry of Interior
Advocate NGO “Ynam”, Ashgabat
CHANGES IN THE PENAL POLICY IN TURKMENISTAN
The reforms of the operable Penal, Penal-Procedural, Correcting Labour and Administrative Codes are carried out in Turkmenistan. The new Penal Code has been introduced since 1 January 1998. On the one hand, the opportunities for applying punishment alternative to incarceration were broadened, on the other hand, application of the incarceration was reduced. Some kinds of the alternative punishments are taking the obligation to recompense the harm, fines, prohibition to occupy certain posts or indulge in certain kind of activities, correcting works, confiscation of property, stripping state awards, military and other ranks. Such measures of punishment as court of honour and accepting bail are cancelled. Participation of the public in considering criminal cases is at present cancelled.
At present in Turkmenistan social or rehabilitation programmes and assistance services to the released are completely absent. On the contrary, after the release the ex-criminals get under the strictest administrative control, and the law-enforcing bodies are eager to apply sanctions to the released for the slightest offence. Such strict control results only in generation of new criminal situations.
The number of incarcerated
The USA (1996)
South Africa (1992)
New Zealand (1994)
England and Wales (1997)
The Netherlands (1995)
INFORMATION ON ORGANISERS OF THE SEMINAR
PENAL REFORM INTERNATIONAL (PRI) is a non-government international organisation. It was founded at the meeting in London, Great Britain, on 12 November 1989. The PRI comprises representatives of the five continents from more than 80 countries. The PRI develops programmes on the regional basis, co-operating with non-government organisations and individuals in the implementation of various projects in their countries and promoting the exchange of information and positive experience between the countries with similar conditions.
Regional programmes of the PRI include the part of Africa situated to the South of the Sahara, Central and Eastern Europe, Latin America, the Caribbean countries and South Asia. The PRI members-founders represent a wide range of countries.
The PRI was created with the aim to enable individuals and organisations dealing in the penitentiary reform in their countries to come up to the international level, to organise the exchange of information, knowledge and experience, and also work out the development prospects.
Taking into consideration the difference in the cultural contacts in various countries the PRI tends to realise penitentiary reforms ion the following aspects:
development and implementation of international mechanisms of observing human rights in the law-enforcing agencies and prisons;
abolishment of the death penalty;
reduction of the punishment in the form of incarceration in all countries of the world;
use of constructive punishments without incarceration and such that they favour further reintegration of criminals into the society and account for the interests of the victims.
The PRI has among its aims involving volunteers and representatives of the public into the process of crime justice.
The PRI offers its support, competent advice and practical assistance in compiling claims for financing concrete projects.
The PRI, as a rule, is not involved in:
considering complaints of individuals;
affecting the practice of the treatment of cuprits.
Address of the main PRI office:
Unit 114 the Chandlery
50 Westminster Bridge Road
London SE1 7QY
Telephone: (44) 171 7217678
Fax: (44) 171 7218785
Address of the PRI office in Moscow:
P.O.BOX 62, Moscow, 125047, Russia
Telephone/fax: (7) 095 250 86 08
E-mail: [email protected]
“DONETSK MEMORIAL” is a public organisation founded in Donetsk in 1989. The main directions of the activities of this organisation are restoration of historical truth in the period of repressions, perpetuation of victims of the totalitarian regime, propaganda of juridical and historical knowledge. The organisation collects documents and memories about repressions, creates the Library of historical and juridical literature, holds seminars on human rights protection.
Address of “Donetsk Memorial”:
340086, Aiiaoe-86, a/y 7506
E-mail: [email protected]