Arman Danielyan,

Civil Society Institute NGO President

First part can be found here.

Unrealistic approach and corruption risks

There are two approaches discussed for reforming the system of early conditional release: to dissolve the independent commissions, return to the previous system (for obvious reasons this idea is supported by the penitentiary system, prisoners and a number of lawyers) and try to move forward and create a new system which will have the capacity to fulfill the functions which are behind the system of early conditional release.

While considering the functions, i.e. the perspective of risk assessment of re-offending, it is becoming obvious that neither the previous nor the existing systems are capable to solve this issue. Thereby there is a need for establishment of a new system.

Progressive international practice demonstrates that this function may be effectively carried out by the probation service. Probation is the service which provides the person deprived of liberty with the social and psychological support from the very outset of deprivation of liberty and continues to support after the release by helping a person to reintegrate into society. Another essential function of the probation service is to provide the court with the advice on a range of issues including the selection of the measure of restraint and application of necessary conditions in the case of early release of a certain person. Unfortunately this service is yet to be established in Armenia and in case of establishment many years will be required for the system to function in full capacity.

What solution may be proposed in a given situation?

In its study Civil Society Institute has proposed a step-by-step approach to solve the issue which will allow smoothly transferring the function of risk assessment from the existing system to the probation system depending on the process of its formation and establishment.

The following actions are proposed in the first phase: 

1. to elaborate criteria for risk assessment and create an appropriate tool which will allow making possibly objective assessment. At the same time, the prisoners will be aware of the criteria included in the tool and will be interested to demonstrate a proper behavior while in custody. The tool is a questionnaire where the factors which are considered as a possible indicator of repeat offending in a given country are taken into account. For elaboration of the tool it is necessary to involve professionals who will analyze criminogenic factors and extensive statistics on re-offending and identify those factors which lead to repeat offending in Armenia.

2. To modify the composition of the independent commissions and involve appropriate professionals such as criminologists, psychologists, social workers and others who are capable to do a risk assessment.

3. Automatically send the decisions of the administrative commissions to the independent commissions regardless of whether they are positive or negative.

4. The independent commission will be able to assess the impartiality of the administrative commission by meeting the prisoner and listening to his/her arguments. At the same time the independent commission will implement its anticorruption function which it implements today.

5. The conclusions of both commissions will have an advisory nature and will assist the court to make a final decision. The conclusions will be given to the prisoner beforehand who will alone decide whether it is reasonable to apply to the court or it is better to wait for a while, striving to correct the factors that were found insufficient by the commissions.

In the second and third phases it is offered to transfer the risk assessment function to the probation service by dissolving the independent commission first and then the administrative commission.

Recently the Ministry of Justice has prepared draft legislative amendments which are aimed at improvement of the situation. The only difference of the draft is introduction of the evaluation form where according to the scale different factors are assessed. Presumably, in case of compliance with these standards, the independent commission will be restrained and will not be able to come up with arbitrary decisions.

It may seem from the first sight that the draft is aimed at improvement of the situation and may be considered as the first step on the path of reforms. However, when compared the proposed draft with the existing issues (see: Main issues of the process of early conditional release) it appears that the draft will not lead to improvement and contains serious risks of deteriorating the situation.

Particularly, no research was conducted while elaborating the evaluation form included in the introduced draft. In the situation when the impact of the criteria on the risk of repeat offending included in the tool is not identified, it is obvious that the tool cannot provide an objective assessment. At the same time, the prisoner is deprived of the right to appeal de jure in the case of independent commission and de facto in the case of administrative commission. Thereby, no progress will be provided in this respect.

On the other hand, taking into account the potential of corruption in the penitentiary system, the administrative commission (in fact, heads of penitentiary institutions) will have the possibility to make arbitrary decisions because if they decide to reject, the prisoner will be afraid to appeal and illegally positive decision will be substantiated by the documents of the same institution (participation in the events, encouragement etc). It will be impossible to control this process and attempt to earn points based on these factors will become a subject of trading.

Even in the case of positive decision of the administrative commission the independent commission will have the possibility to reject the early release of a prisoner without reasoning because the decisions are not based on the professional assessment and made on the basis of closed confident voting of non professionals. These decisions will be still impossible to appeal.

As a result, the number of early released persons will not change noticeably. Instead of those few who can be released today, those who can pay will be released. The system of early release will become corrupted again and it will lead to a serious resistance to the further reforms.