‘Each to their own’

This is exactly how an acquaintance of mine, a human rights activist, responded to a draft Law developed by the Ministry of Justice of Ukraine...
In particular, the Ministry of Justice proposes to consolidate, by legislative order, the mandatory application of social behaviour correction programmes for persons released from serving a sentence with a suspended sentence. The draft law introducing the relevant norms has been posted for public discussion on the Ministry of Justice’s website (www.minjust.gov.ua). Comments and proposals regarding the draft law on the introduction in Ukraine of social behaviour correction programmes for persons released from serving a sentence with a suspended sentence will be accepted until 15 September 2008 at the email address [email protected].
Yes, the draft law proposes to amend the Criminal and Criminal Executive Codes of Ukraine and supplement the list of obligations that a court can impose on a person released from serving a sentence with a suspended sentence. Specifically, to oblige them to undergo a social behaviour correction programme. Furthermore, it is proposed to place on the Criminal Executive Inspection the obligation to organise and control the completion of correction programmes by persons released from serving a sentence with a suspended sentence.
It is proposed that the approval of the list, content, and order of implementation of such programmes be entrusted to the Cabinet of Ministers of Ukraine. It is envisaged that the programmes will contribute to the prevention of recidivism, form socially favourable changes in personality, and correct the behaviour of the convict or its individual manifestations. The authors of the draft law cite the positive experience of European countries, in particular Sweden, Latvia, and others, where corresponding programmes are applied for persons serving sentences not involving imprisonment.
Such programmes are developed by scientific institutions that carry out research in the field of pedagogy, psychology, and social work.
The type of programme is determined by the court depending on the crime committed and the personality of the convict.
At first glance, such an initiative deserves an exclusively favourable review, as it aims to at least somewhat improve the situation with recidivism.
However, there is only one main ‘but’…
For far more than a month (or even a year), painstaking work has been ongoing on the preparation of a draft of amendments to the current legislation of Ukraine with the aim of introducing probation.
Existing various projects have been discussed at meetings of the Coordination Council on Juvenile Justice and Probation of the Institute of Legislation of the Verkhovna Rada of Ukraine, during various consultations with the public, during the implementation of various projects by non-governmental organisations, etc...
And finally, the draft Law of Ukraine ‘On Amendments to Certain Legislative Acts of Ukraine (regarding the humanisation of criminal legislation and organisational-legal prerequisites for the introduction of probation)’ is practically developed today...
It takes into account, to a certain extent, all the comments and proposals expressed regarding previous draft laws and the comments of employees of state bodies; the draft law complies with the Concept of Reforming Criminal Justice, approved by the Decree of the President of Ukraine of 8 April 2008 No. 311/2008, which provides for the creation of a probation service under the authority of the Ministry of Justice.
The developers of the draft Law of Ukraine ‘On Amendments to Certain Legislative Acts of Ukraine (regarding the humanisation of criminal legislation and organisational-legal prerequisites for the introduction of probation)’ envisaged that the term ‘probation’ includes a system of supervisory, social, educational, and preventive measures applied by a court decision to persons accused or recognised by a court as guilty of committing minor or medium-severity crimes.
At the same time, probation measures for the purpose of facilitating the process of correction and resocialisation, ensuring effective supervision over convicts, limitations, and probation obligations are also assigned by the court simultaneously with:
– the release of a person from serving a sentence with a suspended sentence;
– sentencing to a punishment in the form of community or correctional labour;
– parole from serving a criminal sentence.
Probation, according to the authors of the above-mentioned draft law, provides for the following measures:
– exercising control over compliance by the person to whom probation is applied with the conditions and fulfilment of the assigned obligations and limitations;
– exercising supervision over the behaviour of persons to whom probation has been applied at their place of residence, work, and study;
– conducting social and educational work;
– provision of psychological assistance;
– conducting individual preventive work aimed at preventing the commission of new crimes;
– organisation of and facilitation of the organisation of mediation programmes, as well as encouraging the participation of persons to whom probation has been applied in these programmes;
– ensuring the participation of persons to whom probation has been applied in publicly useful unpaid labour;
– provision of social services and assistance in resolving the social and domestic problems of convicts (employment; obtaining documents; provision of a place of residence and registration; medical support; obtaining education and a profession; other problem issues) jointly with other state bodies and non-governmental organisations that are entrusted with duties for conducting work and providing assistance to convicts.
Thus, probation, according to the developed document, includes those proposals that were developed by the Ministry of Justice regarding persons released from serving a sentence with a suspended sentence. At the same time, it is a broader measure both in terms of the circle of persons and in terms of content and, thus, will undoubtedly have greater ultimate effectiveness.
So why does the Ministry of Justice, instead of directing efforts to support the project on the introduction of probation, which it has studied repeatedly and which has, on the whole, received a positive response, support initiatives for the introduction of separate elements of deepening educational work, which will not create conditions for the final resolution of the problem of recidivism?
In my personal opinion, the matter lies solely in the desire of the State Department of Ukraine for the Execution of Punishments to ‘pull the blanket over itself by hook or by crook’, by changing the name of the criminal executive inspection to a probation service and leaving everything as it is at the present time.
Throughout the entire time of developing the draft laws on the probation service, practically the only, but a very significant ‘stumbling block’ in the discussion of the draft Law of Ukraine ‘On Amendments to Certain Legislative Acts of Ukraine (regarding the humanisation of criminal legislation and organisational-legal prerequisites for the introduction of probation)’ was one thing – the subordination of the probation service.
Its authors proceeded from the fact that the Concept of Reforming Criminal Justice clearly provides for the creation of a separate probation service within the Ministry of Justice, and therefore proposed to cut a unit such as the ‘criminal executive inspection’ (which currently executes sentences and exercises control over the behaviour of persons released from serving a sentence with a suspended sentence), directing the freed-up funds to the creation of a new probation service within the Ministry of Justice.
The State Department for the Execution of Punishments, in doing so, refers to the Concept of Reforming the State Penitentiary Service of Ukraine, approved by the Decree of the President of Ukraine of 25 April 2008 No. 401/2008, in which the proposal is expressed to reorganise the system of executing sentences not involving imprisonment and to organise the activities of the criminal executive inspection on the principles of probation. It is precisely this latter document that becomes the most weighty lever of persuasion used by the Department in discussions regarding the location of the probation service.
But for some reason, attention is never drawn to the fact that it was rather ‘improper’, in my view, to submit for the signature of the Head of State a document that knowingly does not comply with the provisions of an act previously signed by him. Perhaps in such situations, a life principle takes effect: ‘the end justifies the means’... In other words, it does not matter how, but the desired result is achieved. And now the Department has the opportunity not only to ‘turn’ the provisions of current legislation at its own discretion, using a certain imperfection of legal norms, but also to ‘manipulate’ two documents, approving the provisions that seem expedient to it and choosing from the two documents only that which is ‘to its liking’. Agree, this is significantly more ‘convenient’ than interpreting legislative norms at one’s own discretion.
And it is precisely the ‘ardent desire’ of the Department to obtain the probation service under its own subordination that, in my opinion, explains the attempt to turn the criminal executive inspection into this service at all costs. And the draft Law ‘On Amendments to the Criminal and Criminal Executive Codes of Ukraine regarding the introduction of social behaviour correction programmes for persons released from serving a sentence with a suspended sentence’ creates the very ground for this: first, one can begin by placing additional functions on the criminal executive inspection, and only then – ‘report’ on the ‘outstanding’ results of the latter’s activity in this direction. But will we receive not a façade, but real results? I doubt it...
One cannot help but say a few words regarding the draft Law itself on the mandatory application of social behaviour correction programmes for persons released from serving a sentence with a suspended sentence.
Firstly, although formally this project contains a rational kernel at its core, it practically completely duplicates one single provision of the Law of Ukraine ‘On Amendments to Certain Legislative Acts of Ukraine (regarding the humanisation of criminal legislation and organisational-legal prerequisites for the introduction of probation)’, i.e., it is impossible to speak about a comprehensive approach to solving the problem of criminal recidivism under such conditions.
Secondly, the authors of the draft Law of Ukraine ‘On Amendments to the Criminal and Criminal Executive Codes of Ukraine regarding the introduction of social behaviour correction programmes for persons released from serving a sentence with a suspended sentence’ claim in the explanatory note that it was developed in accordance with the Decree of the President of Ukraine of 5 May 2008 No. 411/2008 ‘On measures to ensure the protection of the rights and legitimate interests of children’. However, in connection with this, a question arises: if the project is aimed primarily at protecting the rights of children, why then are the amendments being made not to Art. 104 of the Criminal Code of Ukraine, which provides for release from serving a sentence with a suspended sentence for minors, but applies primarily to adult convicts?
Thirdly, the project envisages that ‘...in Ukraine, the implementation of social behaviour correction programmes can be entrusted to the criminal executive inspection of the State Penitentiary Service of Ukraine and the centres of social services for family, children, and youth of the Ministry of Ukraine for Family, Youth, and Sports...’. But none of the proposed changes touches upon changing the powers of the centres of social services for family, children, and youth and the corresponding regulatory-legal acts. They concern exclusively the activities of the criminal executive inspection. Moreover, in the ‘Legal Aspects’ section, it is explicitly indicated that ‘...This Law does not entail changes in other regulatory-legal acts...’. And how then is one to involve other services in this activity?
Fourthly, the predicted results seem overly inflated and self-confident. In the Explanatory Note, it is specifically stated: ‘Completion by a convicted person, released from serving a sentence with a suspended sentence, of a social behaviour correction programme will contribute to their successful socio-psychological and economic functioning in the future.’ Regarding the possibility of the influence of a correction programme on socio-psychological functioning, I will not argue. But the assertion about the success of ECONOMIC functioning seems quite doubtful. Economic functioning depends on many factors, not the least of which is the general economic state of the country and its citizens. Just how programmes of the type ‘Prevention of Violence’, ‘Formation of a Respectful Attitude’, ‘Overcoming Alcohol and Drug Dependency’, ‘Prevention of Sex Crimes’, etc., will be able to influence the improvement of the level of economic functioning – is not known.
Similarly, it is unknown how social behaviour correction programmes will ensure the employment and education of a convict, since for this, it is necessary not to correct social behaviour (at least, in the vast majority of cases), but to create conditions for employment or obtaining an education (attention has repeatedly been drawn to these problems, but they still remain unresolved).
The cited examples are not exhaustive flaws (in my opinion) of the proposed draft Law. And personally, I am deeply convinced that in the event of its adoption, the desired changes will not take place; we will only receive additional expenditure of state funds and ‘adjusted’ statistics on the improvement of the situation.
In conclusion, I only want to express great regret regarding how the system of rule-making works in our state and to call on all those who are not indifferent to work more coherently, because only in this way is it possible to draw attention truly to the needs of society, and not to the resolution of the problems of individually chosen officials.