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Analytical Note[1] N.P. Kovalyov[2]
Contents: 1. Terms used herein. 2. Benchmarking institutional models of the penal systems, including probation services in different countries of the world (Russian Federation, the Netherlands, Poland, UK, Finland and other countries). 3. Perspective from international organisations (Council of Europe, UN, OSCE et al.) and experts on control over the penitentiary systems. 4. Arguments for retaining the penitentiary system as part of the civil agency i.e. the Ministry of Justice.
1. Main Terms
§ The penal system means a system of governmental agencies, including in some countries non-government organisations, which aim mainly at carrying out court sentences.
§ Penitentiary system means a system of governmental agencies, including in some countries non-government organisations and institutions, where individuals convicted for crimes (administrative offences), as well as suspects and individuals accused of crimes are detained in custody until sentence is passed.§ Probation means a programme to take to convicted individuals alternative overseeing measures in order to correct them instead of imprisonment. The breach of the programme and the probation terms by the respective individuals normally entails imprisonment. § Probation service means governmental agencies, including in some countries non-government organisations, implementing probation programmes for the convicted individuals.
2. Benchmarking Institutional Models of Penal Systems
There are several different institutional models of penal systems in the world. Depending on subordination of a penal system to one or another governmental agency, one may speak about five models of such systems:
(1) A model where the penal system is fully accountable to the ministry of the interior or equivalent agency; (2) A model where the penal system is fully accountable to the ministry of justice; (3) A model where the penal system is controlled by consolidated ministry of justice and the interior ministry (police);
Penal System Controlled by the MoI
In some former Soviet Union republics such as Belarus, Uzbekistan and Turkmenistan the penitentiary system is fully controlled by the MoI.[3] In Belarus and Turkmenistan they are controlled by the Penal Department, which reports directly to the minister of the interior.[4] In Uzbekistan the penal system is controlled by the Central Penal Department (“CPD”) of the Uzbek MoI. At the same time, head of the Uzbek CPD acts as the vice minister of the interior. It is remarkable that according to Freedom House these three former Soviet Union republics are among the most repressive countries in the world.[5] This model was inherited from the Soviet Union and was also used in other former Soviet Union republics. However, after the collapse of the Soviet Union the governments of the majority of such countries preferred a model where the penitentiary system was controlled by the ministry of justice. The respective handover to the ministry of justice took place in 1993 in Azerbaijan and Estonia, in 1996 in Moldova, in 1998 in Russia, in 2000 in Georgia, Latvia and Lithuania, in 2001 in Armenia, and in 2003 in the Kyrgyz Republic.[6] Similar reform was also undertaken in the early 90s in other post-socialist countries, where the penal system was controlled by the ministry of the interior. For instance, that was the case in 1990 in Bulgaria, in 1991 in Romania and in 1993 in Albania.[7]
Moreover, until recently the penal system in the UK was controlled by the MoI (Home Office). However, in 2007 the penal system was handed over to the newly established ministry of justice.
At the same time, in some democracies some penal agencies report to the minister of the interior. For instance, in Canada the penal system is controlled by the federal government and provincial governments. All penalties involving imprisonment for more than 2 years are carried out by the Canadian Penal Service, which is a federal agency reporting to the minister of public safety, who is a Canadian equivalent to the minister of the interior. As to provinces, the penitentiaries may be controlled either by the provincial ministry of justice like in Newfoundland and Labrador, Nunavut, New Scotland, Northern-Western Areas and Yukon, or by a ministry in charge of law enforcement i.e. the provincial ministry of the interior what is the case in provinces Quebec and Ontario.[8]
In other former British colony - Australia - all penitentiary facilities fall within the jurisdiction of states (all in all seven). Like in Canada, penitentiaries may be controlled by both the ministry of justice (e.g. in Victoria) and the police department. For instance in Queensland it is done by the Office of the Minister for Police and Corrective Services.
However, it should be noted that like in Canada, Australia and other former British colonies, unlike former Soviet Union republics not police officers but professional politicians and members of the parliament act as the minister of the interior that undoubtedly impacts the methods of controlling penitentiary facilities, makes them less militarised and less repressive.
The Ministry of the Interior controls the penal system in one of the European countries, too - Spain, in many African countries (Angola, Gabon, Gambia, Egypt, Zambia, Kenya, Malawi, Namibia, Nigeria, Sudan, Tanzania, Rwanda), Latin-American countries (Belize, Bolivia, Guatemala, Honduras, Mexico, Nicaragua, Uruguay, Ecuador), Asian countries (Bangladesh, Vietnam, India, Cambodia, Laos, North Korea, Singapore) and virtually in all the Middle-Eastern countries (Israel, Jordan, Yemen, Qatar, Kuwait, Lebanon, Saudi Arabia, Syria, United Arab Emirates, Oman).[9]
It should be also noted that in some countries the probation services are separated from the penitentiary system and report not to the ministry of the interior, but to an absolutely different governmental agency or non-governmental agency. For instance, in Singapore the probation service is controlled by the Ministry of Community Development and Sports.[10] Penitentiary System Controlled by the Ministry of Justice
This model is the most common institutional model of the penal system in Europe and other democracies. Apart from the above-mentioned post-Soviet countries the model has been used almost in all European countries (Austria, Belgium, Bosnia and Herzegovina, Hungary, Germany, Greece, Denmark, Iceland, Italy, Luxemburg, Macedonia, Netherlands, Portugal, Serbia, Slovakia, Slovenia, France, Finland, Czech Republic, Sweden), some North and Latin-American countries (Argentina, Brazil, Columbia, Costa Rica, Peru, Chile), Asian countries (Afghanistan, Pakistan, Taiwan, Thailand, Turkey, Sri Lanka, South Korea and Japan), as well as in many African countries (Benin, Ivory Coast, Burkina Faso, Guinea Bissau, Democratic Republic of Congo, Cabot Verde, Cameroon, Congo, Lesotho, Liberia, Libya, Mauritania, Madagascar, Mali, Mozambique, Morocco, Niger, Swaziland, Senegal, Togo, Tunisia, Central African Republic, Chad, Equatorial Guinea).
To control the penitentiary system, a special department, reporting directly to the minister of justice, is set up as part of the ministry of justice. In different countries there are different names of such governmental agency: the Federal Penal Services in Russia, the Agency for Criminal Penalty in Finland, the Central Committee of Prison Services in Poland, and the National Agency for Penitentiary Facilities (“NAPF”) in the Netherlands.
The way the penal services are organised might also vary from country to country. For instance, in Finland the Agency for Criminal Penalty, headed by the general director, comprises two departments: the probation department and the prison department. The first department is involved in public penalties, including supervision of minors sentenced to suspended penalty, public works, supervision of paroled individuals, and other penalties not involving imprisonment. The second department is involved in carrying out sentences involving imprisonment and detaining in custody accused individuals before trial.
In the Netherlands the NAPF, headed by the general director, has some autonomy in implementing the Agency’s corrective programmes and policies. The NAPF annually reports results to the ministry of justice and discusses budget and targets to be beaten in the following year. The activities of the NAPF are reflected in annual plans and reports. The NAPF comprises four main sections: (a) prison services section; (b) juvenile facilities section; (c) clinic penitentiaries section; and (d) special section. The prison services section is responsible for controlling detention centres, as well as penitentiaries of any type, which vary from maximum security prisons to semi-open and open prisons. The juvenile facilities section is responsible for administering detention centres for minors. The clinic prison section controls special medical centres for individuals who committed publicly dangerous acts and recognised partly or fully disabled.[11] It is remarkable that even though the budgetary funds for the Dutch probation services are allocated by the ministry of justice, the programmes are implemented by the three non-government agencies: the Mercy Army’s probation section, which deals mostly with the homeless and minors, the Organisation for Mental Health, which deals with alcohol and drug addicts, and the National Probation Service that has over 60 offices with 11 to 15 staffs in each. The budgetary funds are allocated and coordination of the agencies done by the Dutch Probation Fund. [12]
Penitentiary System Controlled by the Consolidated Ministry of Justice and the Interior
With the overwhelming majority of countries in the world where the penal system is controlled by either the ministry of justice or the ministry of the interior, just in a few countries the penal system is controlled by the independent governmental agency reporting directly to the prime minister or head of state. South Africa and Ukraine are among such countries.
Before early 90s the South-African correctional system was controlled by the Ministry of Justice.[17] However, the reform undertaken in the early 90s, separated the penitentiary system from the Ministry of Justice and handed over to the newly established Department of Correctional Services. At the same time, the government decided to start correcting criminals of some classes outside the penitentiaries through public control. The reform was viewed as a more efficient model of spending budgetary funds and as a response to overcrowded penitentiaries. In the initial years of the Department of Correctional Services the following significant changes occurred in the penitentiary system: new team joined the penitentiaries and the administration. In particular, there are now more black people, the penitentiary system was demilitarised, and institutions to independently control the department of correctional services developed so that it is done by someone like judging inspector. It appears that an attempt by the new South-African government to abolish the old penitentiary model, which was used in repressions against the black nationals of the country during apartheid, is one of the factors considered while divesting the penitentiaries from the ministry of justice and establishing a new civil department of correctional services. In doing so a too fast replacement of old staffs with new ones did not go together with proper training of new skills, and demilitarisation was mistaken by the new staffs for waiver of discipline. This, in turn, had an adverse impact on the independent department in its initial years.[18]
Mixed Penal and Detention Model
3. Perspective from International Organisations (the Council of Europe, UN, OSCE et al.) and Experts on Control Over Penitentiary Systems
The view of the European organisations on what penitentiary model is to be preferred can be seen from the reports and recommendations made by such international organisations.
In one of its reports the OSCE explicitly recommended the member states of the OSCE to take the following steps in reforming their penitentiary systems:
(1) Those member states of the OSCE, which have not yet divested their penal systems from the MoI to the ministry of justice, have to consider doing so as soon as possible;
(2) Those member states of the OSCE, which are in the process of divesting them from the MoI to the ministries of justice, have to take the reform forward in order to change the penal nature, thinking and culture.
(3) The member states have particularly to waive responsibilities for controlling detention centres because the distribution of responsibilities between authorities that detain the accused individuals and investigating authorities is especially relevant in the stage of preliminary inquiry;
(4) Handover from the MoI to the ministry of justice should not go together with distribution of responsibilities between authorities controlling detention centres and prisons; one needs to avoid the existence of two different agencies because it might lead to slowing of the criminal justice reform;
(5) Structural change in the controlling of the penitentiary system should not occur just because they have to occur. They must be the means of demilitarising and democratising the correctional services;
(6) Independent national human rights agencies like ombudsman have to play a greater role in the penitentiary reform. ODIHR/OSCE has to work together with such agencies in order to make them better suitable for monitoring the penitentiary system;
(7) Member states of the OSCE have to put in place an efficient system to monitor human rights at penitentiaries; and
(8) Member states of the OSCE have to authorise the judicial system to control the penitentiary system and make the role of prosecutors in controlling the penitentiary system less significant.[20]
So based upon this report the OSCE recommended its member states to use the model where the penitentiary system is controlled by the ministry of justice.
Similar stand was taken by the European Union officials. For instance in its final report the European Mission for Judicial Technical Assistance (“Euralis”) welcomed the divestiture of detention centres from the police department to the ministry of justice as an important success made in the Albanian penitentiary system.[21] Besides, the European Mission recommended the Albanian government to abolish the Central Penitentiary Department, acting as a self-governing agency of the Ministry of Justice and instead establish another department - Penitentiary Board - as part of the Ministry of Justice. The European Mission officials think that such a reorganisation will make the penitentiary system more transparent and efficient, will facilitate communication between the Ministry of Justice and penitentiaries, will assure more rapid development of penitentiaries and will reduce the cost of managing the penitentiary system[22].
The Council of Europe officials also repeatedly stated that the divestiture of the penitentiary system from the MoI to the Ministry of Justice was required in order to comply with the Europe’s human rights standards and meet international commitments made by the member states to the Council of Europe. In particular, in its Resolution # 1277 of 2002 On Status of Compliance by the Russian Federation the Council of Europe Parliamentary Assembly (“CEPA”) stated: “The Assembly also welcomes the transfer of the penitentiary system from the Ministry of the Interior to the Ministry of Justice that took place on the 31st December 1998 and calls for further demilitarisation of the penitentiary services”.[23] On the other hand, the CEPA repeatedly criticised the Ukrainian authority for delay in handing over the penitentiary system to the Ministry of Justice. In particular, in Resolution # 1179 the CEPA stated: “We are deeply concerned about pace Ukraine is meeting the outstanding commitments”, including “the penitentiary system being handed over to the Ministry of Justice too slowly”.[24] Then in 2001 in its Resolution # 1262 the CEPA stated: “11. The Assembly puts forward the proposal to the Ukrainian authority: (i) handover the State Penal Pepartment to the Ministry of Justice and finish handing over to the ministry of justice detention centres that are still controlled by the Ministry of the Interior and other law-enforcement authorities”.[25] Just two years later in Resolution # 1346 on Ukraine the CEPA calls the Ukrainian authority: “… finish handing over various detention centres still controlled by the ministry of the interior and various law-enforcement authorities to the State Penal Department”.[26]
Therefore one may conclude that the European organisations such as the OSCE, the European Union and the Council of Europe took a common stand on preferable institutional model of the penal system, which is a penitentiary system to be controlled by the Ministry of Justice.
4. Arguments for Retaining the Civil Agency’s (Ministry of Justice) Control Over the Penitentiary System
Any reform to reorganise and restructure governmental authorities, including penitentiary agencies, have to go together with a in-depth analysis of international experience, stand of international human rights groups and financial appropriateness of the reform. If the Kazakh government intends to consider establishing an independent penal agency, it will need to consider the following points:
(1) As stated in the above Clause 2 hereof in the majority of developed democracies penitentiaries are administered and controlled by the ministries of justice. As also seen from the benchmarking of the institutional models of penal systems, the model where the penitentiary system is controlled by the MoI is used mostly in non-democratic countries. As to experience gained in such countries as the South-African Republic and Ukraine with the independent penal agencies, it is not applicable to Kazakhstan for a number of reasons. Firstly, as said above, a new correctional services department independent of the ministry of justice was established in the South-African Republic as part of the reform to democratise and demilitarise the penitentiary system, which during the apartheid in the SAR was controlled by the ministry of justice. So the new SAR government tried to put in place an absolutely new penitentiary system, which would have nothing in common with the old racist regime and governmental agency (the ministry of justice) that controlled the penal system. While undertaking such a radical reform in the initial years of the new independent agency, as stated above, the penitentiary system was made less efficient. Secondly, as to the Ukrainian experience, the State Penal Department of Ukraine, established in 1991 based upon Central Penal Department (“CPD”) of the Ukrainian Ministry of the Interior as a separate authority was a compromise reached in order to urgently separate it from the MoI since Ukraine at that time was not ready to immediately hand over the penitentiary system to the ministry of justice as demanded under international commitments Ukraine made to the Council of Europe.[27] Therefore unlike the majority of the former Soviet Union republics, which handed over their penal systems to their ministries of justice, Ukraine postponed the actual penal reform. Besides, until today there is an uncertainty over final subordination of the penal system in Ukraine.[28]
(2) The independent agency, not accountable to the ministry of justice, if established in Kazakhstan, will go not only against the common practice followed in developed democracies. It will also go against international organisations, including the OSCE, which Kazakhstan will chair in 2010.
(3) Making the Penal Committee into the independent agency will reduce control over penitentiary administration and staffs in terms of rights and liberties of prisoners. There is a risk that if the Committee becomes an authority reporting for instance to the President of the Republic of Kazakhstan, thus becoming another law-enforcement authority like the National Security Committee or prosecutors, then the question is to what extent the committee will be accountable to the Kazakh government and parliament. Even if the committee becomes part of the Kazakh government, its activities will be less transparent. As seen from the Ukrainian experience, the autonomy of the penal agency may support its non-transparency and militarisation.
(4) A governmental agency, department or ministry, if established, will require extra financial spending including those to launch, set new forms and other documents to arrange activities of the new agency.
Conclusions
(1) There are several institutional models of the penitentiary system. However, the penitentiary system controlled by the ministry of justice is the most common and democratic one; and (2) It is inappropriate to establish the independent penal agency in Kazakhstan from financial and any other points of view. On the contrary, the reform might make the penitentiary system less transparent and more uncontrolled.
[1] This analytic note has been put together under the project implemented by the Legal Policy Research Centre with the financial support from the Centre of the Organization for Security and Cooperation in Europe (“OSCE”) in Astana. Views and judgments contained herein may be different from those of the OSCE and reflect the views of the author. [2] Dr. Kovalyov is a researcher of the Centre for the Russian, European and Eurasian Studies, associate professor of the Law Department at University of Toronto, Canada.. [3] Ibid. [4] Organisation of the Belarusian Ministry of the Interior. http://mvd.gov.by/modules.php?name=Content&pa=showpage&pid=5. [5] In the Freedom House report of 2007 Belarus, Turkmenistan, and Uzbekistan gained the highest ratings of countries where political and civil liberties are restricted. See Map of Freedom in the World, 2008 edition, http://www.freedomhouse.org/template.cfm?page=363&year=2008. [6] R. Walmsley, Further Developments in the Prison Systems of Central and Eastern Europe. Helsinki, 2003, p. 6; The Kyrgyz Ministry of Justice, the OSCE Centre in Bishkek, the OSCE Office of Democratic Institutions and Human Rights, International Penitentiary Amnesty, the Kyrgyz Penitentiary System Assessment, Bishkek, 2006, available at http://www.osce.org/documents/cib/2007/05/24461_ru.pdf. [7] R. Walmsley, Further Developments in the Prison Systems of Central and Eastern Europe. Helsinki, 2003, p. 6. [8] See official website of the Canadian Correctional Services. http://www.csc-scc.gc.ca/text/lins-eng.shtml. [9] King’s College London, International Centre for Prison Studies, World Prison Brief. http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/index.php?search=T. [10] Chomil Kamal, The Probation Service in Singapore, UNAFEI Resource Material Series No. 67, p. 64, http://www.unafei.or.jp/english/pdf/PDF_rms/no67/04_Ms.Kamal__p61-p74.pdf. [11] Department of Justice, National Agency of Correctional Institutions, Prisons, Detention Centres, Correctional Institutions for Juvenile Offenders, and Custodial Clinics and Forensic Psychiatric Hospitals in the Netherlands, Hague, 2002. http://www.dji.nl/hipe/uploads/071015133232/Corporate_brochure_engels.pdf. [12] P.J.P. Tak, The Dutch criminal justice system: Organization and operation. 2nd ed. Boom Juridische uitgevers, 2003, p. 35. [13] Probation Service Systems in Europe http://www.kriminalforsorgen.dk/. [14] Ibid. [15] http://www.regjeringen.no/en/dep/jd/About-the-Ministry-of-Justice-and-the-Po/Organization/ Departments.html?id=490. [16] King’s College London, International Centre for Prison Studies, World Prison Brief. http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/index.php?search=T. [17] http://www-dcs.pwv.gov.za/. [18] History of Transformation of Correctional System in South Africa, http://www-dcs.pwv.gov.za/. [19] King’s College London, International Centre for Prison Studies, World Prison Brief. http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/index.php?search=T. [20] OSCE, Final Report of the Supplementary Human Dimension Meeting on Prison Reform, Vienna, 8-9 July 2002, pp. 3-5. http://www.legislationline.org/upload/legislations/fe/4b/8a776f8548621786f43e71003532.pdf. [21] http://www.euralius.org.al/reccomendations/eng/euralius_final_report.pdf. [22]http://www.euralius.org.al/reccomendations/eng/1.Recommendations_for_the_management_reform_of_ the_Albanian_Prison_System.pdf. [23] http://www.coe.int/t/r/parliamentary_assembly/%5BRussian_documents%5D/%5B2002%5D/%5B Avril2002%5D/Resol_1277.asp. [24] http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta99/ERES1179.htm. [25] http://www.coe.int/T/r/Parliamentary_Assembly/%5bRussian_documents%5d/%5b2001%5d/%5b Sept2001%5d/Resol1262.asp#TopOfPage. [26] http://www.coe.int/T/r/Parliamentary_Assembly/%5bRussian_documents%5d/%5b2003%5d/%5b Sept_2003%5d/Res%201346%20Rus.asp#TopOfPage. [27] O. Bukalov. Establishing and Operating the State Penal Department as an Independent Authority: the Ukrainian Experience.
[28] Ibid.
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