Introduction
One year ago, the Reform Package on Early Conditional Release[1] in Armenia entered into force.
The goals of that legal initiative were straightforward: First, to reduce the number of persons kept in prisons, second, to make the parole procedure more transparent and predictable for its primary beneficiaries – inmates, and third, to increase professionalism and independence of the Commissions on Early Conditional Release and Substitution of Sentences with a More Lenient Punishment (hereinafter: Independent Commissions).
The Civil Society Institute welcomed positive developments of the legal framework regulating parole procedures and meanwhile raised a number of concerns which unfortunately were never addressed[2]. Moreover, a number of new concerns, as explained below, has emerged.
Indeed, the legal framework, in general, seems much better as it was before March 2017, but deep down nothing has changed. The procedure hasn’t become more predictable for the inmates, the number of the persons released has not raised significantly, the Independent Commissions’ experts have no comprehensive and working instruments and methodology of objective and transparent assessment of the risks and needs of inmates. Overall the Comissions lack a vision and a strategy shared by all their members.
The fact that reforms haven’t proved their worth has been accepted also by the Government. Currently, another package of radical changes is being tested by the Ministry of Jusitce[3].
All the reforms had “cosmetic” effect only and as has been proven time and again, there is no real change without comprehensive system of assessment and genuine efforts to assist people leaving prisons in reintegrating into society.
To understand, why the results of the reforms are not so impressive, let’s try to remember what exactly has changed and why it doesn’t work as it meant to work.
What we had?
The system of early conditional release is regulated mainly by Article 76 of the RA Criminal Code, a number of articles of the RA Criminal Procedure and Penitentiary Codes[4], as well as secondary legislation acts[5].
Before the legislative amendments, the following system was in place. When a prisoner has served a specific part of his sentence, as determined by law, the administration of the penitentiary was required to consider the possibility of recommending the said prisoner for early conditional release, provided that he had not received any disciplinary sanctions during his time in prison. If the administrative commission of the penitentiary decided to recommend for early conditional release a prisoner sentenced to a determinate term or to life imprisonment for a medium-gravity, serious or especially serious crime, it sent the decision to an independent commission for approval.
In case the independent commission approved the aforementioned decision, the administration of the penitentiary sent a motion to a court, requesting early conditional release of a person sentenced to a determinate term or to life imprisonment for a medium-gravity, serious or especially serious crime, or replacement of the remaining part of the sentence with a more lenient sentence. Independent Commissions included representatives of the relevant agencies and the public. The actual lists of members of independent commissions (by individual penitentiaries they are going to serve) was approved by the RA President. Independent commissions were made up of 8 members, the majority of whom represent various state agencies (the Police, Ministry of Health, National Security Service, President’s Administration, Department of Penitentiaries of the Ministry of Justice). Other members represented the Public Council, Human Rights Defender’s Office and Yerevan State University’s Department of Theory and History of Psychology (one from each of these organizations). Decisions to approve or reject a penitentiary administration’s decision to seek early conditional release were adopted by a simple majority of commission members present at the meeting (but no less than half of all members), by means of a secret vote. Once the commission made its decision, it was forwarded to the administration of the penitentiary. Once the commission’s approval was received, the administrative commission filed a court motion. Courts normally approved the motions on the early conditional release.
What was wrong with the system?
The system had numerous flaws, which were repeatedly pointed out by the Civil Society Institute.[6] The most important aspects can be grouped as follows on the basis of main decision makers, participation of the direct beneficiary, an inmate, in the process, and assessment criteria.
First, as it can be easily derived from the brief above description, the role of the penitentiary in the whole process was tremendous. The administration decided whose cases would be sent to Independent Commission, how to characterize inmates and could make profiles of inmates weaker or stronger depending on what was needed. Besides, the administration of penitentiary could significantly influence the case of each inmate through disciplinary sanctions, the existence of which closed the whole process for an inmate.
Second, the Independent Commission as a whole never met the inmates in person, received already “filtered” cases, could not provide a true adversarial process, where an inmate had opportunity to defend its case before the commission and later in court. Their decisions were not well-substantiated and mainly based upon reports on conduct during incarceration.
And third, in assessing the risks of inmates neither decision-making body paid any attention on the needs of an inmate. When considering the possibility of early conditional release, the decision-making officials and specialists looked into the past, i.e. considered the prisoner’s behavior during incarceration, and the gravity of their crime. At the same time they should also look into the future, i.e. the imposed post-release conditions and supervision, which would integrate the prisoner in the community and ensure public safety. For the latter, effective probation services and individualized post-release conditions and types of supervision are especially important.
The establishment of the State Probation Service and general process of reforming of the criminal justice field in Armenia brought significant changes, which were introduced in February 2017 and entered into force gradually, starting from March 1, 2017.
What has changed?
Actually a lot[7].
First, the role of the penitentiary was reduced to a minimum. Each offender’s case is sent to Independent Commission for a mandatory review. Once the decision is disclosed to offender he/she may decide to send it to court or to wait another 3 months for another hearing before Independent Comission. What is left for the administration of the penitentiary is to prepare brief documents, that should help Independent Commission to answer two questions: 1) whether the candidate ensured good conduct and industry 2) whether the risk of repeat offence is low.
The reform constituted the first attempt to introduce lawyers, representing offenders before Independent Commissions and later in court.
Offenders in their turn have more active role in the whole process and involved in each stage of the process.
It was sought to increase the professionalism and relevance of the experts involved as members of Independent Commission, with the emphasis on their professional background and not place of work.
The existence of a disciplinary sanction, recidivism, absence of work or any other isolated factor are not as such preclude Independent Commission from issuing a positive decision on the case. The law lists a number of relevant factors. However, neither from them is mentioned as particularly important for the decision.
The quorum of 4 members voted in the same way is now required for a valid opinion of the Commission (before, there were situations where only two votes were enough).
Members of non-governmental organizations, particularly active in the field of criminal justice were included in the Independent Commissions. One of such members was delegated by the Civil Society Institute.
Why it still doesn’t work?
In the light of the foregoing there is a number of reasons explaining why the reform failed to address the main issues linked to the system of early conditional release in Armenia.
Information, presented by the penitentiary is still the main source of information about an inmate available for the Independent Commission and later for court. The provision, which allows Independent Commission to request additional information on the offender’s risks and needs from the State Probation Service is already in force, however, to our knowledge, it has never been invoked. At the same time, due to the absence of multi-source information on each case, the members of the boards have to form their opinion solely on the information presented by the prison staff only. There are several risks here, first of all, the board cannot be sure that all the information is full and accurate. Second, the major part of the information indispensable for the informed decision is simply absent. Those are, for example, the details about the situation of the prisoner in outside world, his family, future job opportunities, social circles, financial situation, etc.
Most of the members of Independent Commissions are representatives of various state agencies (Ministry of Health, Presidential Administration, Ministry of Justice, Ministry of Education, the Ombudsman’s office) and it is difficult for them to distract themselves from the state’s agenda as they understand it.
The work if the Commission is not compensated which makes it additional unnecessary burden for the experts involved and does not encourage them to invest time and expertise in this work. This is not right approach if the State is interested to involve true professionals from the field. The work for the Commission takes a considerable part of the expert’s work hours, and while to date the members of NGO sector agreed to do pro bono work in light of the great expectations we have for the whole idea, I still believe that such activity must be remunerated. Otherwise, NGOs will not be able to keep special officers for this purpose, which means that the work will be combined with other paid work and this would inevitably adversely affect the quality of the service.
The inmates still do not see how they can influence the process, do not use all the possible safeguards of the process (such as possibility to use legal aid) and in general are very passive throughout the parole procedures.
The legal framework does not imply that the Independent Commissions issues a well-substantiated opinion, with comprehensive analysis of the factors and reasons for [not]recommending an inmate for early release. The absence of well-substantiated opinions of the Independent Commissions does not contribute to the level of predictability of the outcome and does not in fact help judges to make an informed decision at the final stage of the process.
There is a clear lack of trust in any rehabilitation opportunities for most of those eligible for early release and general reluctance to take responsibility to release a person with any level of re-offending risk.
And finally, a number of shortcomings are explained by the sole fact, that no orientation training was organized for the newly appointed members of the boards to explain the ethical and legal framework of the current system of early conditional release and the role of probation service in the supervision of the parolees. Consequently, the absence of the uniform approach and understanding of the mission and key principles of the work between the members of the boards and between different Independent Commissions leads to controversial, inconsistent practice. Another important consequence, is the absence of any meaningful contacts and cooperation between the main links of the chain: commissions, judges, probation and prison staff.
As one can see, some of these problems cannot be resolved immediately, and some of them are just a matter of one concerted action for all the stakeholders involved.
[1] https://parliament.am/legislation.php?sel=show&ID=5777&lang=arm
[2] https://www.hra.am/hy/position/2017/02/24/early_conditional_realese
[3] https://www.e-draft.am/en/projects/796/about
[4] Articles 434 of the Criminal Procedure Code, 114 to 116 of the RA Penitentiary Code
[5] The RA President’s Decree NH-163-N of July 31, 2006, the RA Government’s Decision 1304-N of August 24, 2006 (not in force), and the RA Minister of Justice Order QH-46-N of September 8, 2005.
[6] https://www.hra.am/i/up/early_release_report-feb-a5-ENGLISH-26.03.pdf, pp. 46-50.
[7] https://parliament.am/legislation.php?sel=show&ID=5777&lang=arm
Article by the Civil Society Institute
“Publication has been produced within the framework of Penal Reform International’s project “Reducing torture and ill-treatment through strengthening preventive monitoring mechanisms in Armenia and Georgia”, with financial support of the Netherlands Ministry of Foreign Affairs. The contents of this document are the sole responsibility of the author and can in no circumstances be regarded as reflecting the position of either the donor or Penal Reform International”.
