Criminal-Executive Policy of Kazakhstan: New Vectors of Development

The future of the criminal-executive system largely depends on the degree of maturity of civil society, the preservation of liberal trends in criminal policy, the improvement of the activities of various tiers of state administration, and the development of conceptual approaches to determining a strategy for combating crime and ensuring the safety of society. In this regard, the following vectors of national criminal-executive policy can be distinguished:
1) Convergence. The thesis of convergence was at one time put forward by the academic and human rights defender A.D. Sakharov as a possible rapprochement of different political and economic systems. In the science of criminal-executive law, the idea of convergence has found its reflection: the Russian professor V.A. Utkin wrote as early as the 90s of the last century about the possibility of the convergence of the prison and colony system as a probable model for its development. We believe that convergence is not limited to the interpenetration of elements of the colony and prison system of serving sentences in the form of deprivation of liberty and may have a broader semantic meaning. It appears that the path of convergence is the path of rapprochement and interaction between the “Eastern” and “Western” models of sentence execution and criminal-legal measures, including those not associated with isolation from society. In the long term, this will mean that domestic criminal-executive inspectorates (CEI) will acquire signs and features characterising the European probation service. At the same time, the CEI inspector will acquire the status of a social worker, psychologist, and manager, organising the process of managing the execution of alternative measures. Along with this, as the number of prisoners decreases in the purely colony-based national criminal-executive system, prison elements may objectively manifest themselves. Ultimately, convergence will lead to a change in the mentality and thinking of the staff of the criminal-executive system and will cause a transformation of their consciousness in terms of a transition from the psychology of a power agency to the mindset of managing the process of the convict’s resocialisation.
2) Demilitarisation. An inevitable accompanying link and even a consequence of the convergence of the CES (Criminal-Executive System) is its demilitarisation. It should be noted that the ideology of demilitarisation was linked to the initial stage of reforming the national criminal-executive system. This process has had its fruits:
- the phased transition of the CES in 2002 to a civilian agency—the Ministry of Justice of the RK (in 2004, the transfer of pre-trial detention centres took place);
- the creation of a psychological service in institutions executing sentences in the form of deprivation of liberty;
- cooperation of the CES with international and national human rights organisations.
However, demilitarisation is far from complete. Its full implementation will occur when the “anti-adversary syndrome” mentality—which reflects the psychology of war against crime using forceful methods—is overcome in the minds of penitentiary institution staff. Furthermore, the introduction of prison elements into domestic penitentiary practice, the creation and development of a probation service and its analogues, will fully allow for the overcoming of militaristic and paramilitary traditions in the professional training of CES staff and in relationships with convicts. The need for organising a detachment-based system of serving deprivation of liberty, which copies the structure of army units, will disappear. Provisions providing for the duty of CEI inspectors to carry out initial search activities regarding convicts who evade control may disappear from criminal-executive legislation. The preservation of these functions contradicts international standards and recommendations in the sphere of alternatives and pays tribute to the militaristic elements of the Soviet-era CES.
3) Cell-based system. The processes of convergence and demilitarisation of the CES will, with a high degree of probability, cause a gradual departure from the barrack-style conditions of prisoner confinement, which are a drawback of the colony model of executing sentences in the form of deprivation of liberty, towards cell-type confinement conditions. We believe that such a transformation will allow for safer living conditions for prisoners and will minimise prison violence and the violation of human rights and freedoms. Admittedly, we are aware of the immense complexity of this process. It must be taken into account that the full embodiment of prison elements in national penitentiary practice will be hindered by the following objective circumstances:
A) The comparatively high cost of the prison model. The colony model appears much cheaper in an economic sense. For example, in the Swiss Confederation, the maintenance of one prisoner costs taxpayers more than 600 Swiss francs a day, while in the USA, it is like living in a five-star hotel.
B) The existing subculture of the majority of prisoners, in which the traditions of Soviet collectivism and a national mentality, differing from the individualistic mentality of Western societies, are intertwined. The psychological mindset of “the whole world together” facilitates the survival of prisoners. They feel their cohesion, mutual assistance, and mutual support, and may painfully perceive the transition from barrack-style dormitory conditions to cell-room confinement conditions. Furthermore, informal leaders among prisoners, so-called “criminal authorities,” may exploit the dissatisfaction of convicts who might see such changes as a threat to their unity. In a prison system, criminal authorities lose the influence they usually have in a colony system.
C) It is also necessary to note the specificity of domestic criminal-executive legislation: the fact is that prison elements in the Criminal-Executive Code of the RK, just as in the Russian Criminal-Executive Code, are linked to the conditions of serving a sentence in the form of deprivation of liberty for the most criminogenically dangerous part of prisoners. Thus, for example, prisons house individuals sentenced to life imprisonment, those guilty of particularly dangerous recidivism, and, furthermore, prisoners who are malicious violators of the order and conditions of serving sentences are placed in cell-type premises (CTP). Thus, what is considered the norm in Western-type countries—“prison, cell-based confinement of prisoners”—acts here, in essence, as a kind of pathology and is perceived exactly as such by the staff of penitentiary institutions.
These factors, in their totality, will very seriously constrain the strengthening of prison elements in the national prison doctrine and practice. We believe that the way out of this situation may be twofold. On the one hand, we agree with the opinion of Professor V.A. Utkin that it is impossible to discard all the features of the colony system; moreover, convergence does not assume this, but speaks of the levelling and rapprochement of the colony and prison models. On the other hand, the further reduction in the number of prisoners in places of deprivation of liberty, when reality reflects the well-known thesis of Academician V.N. Kudryavtsev that only those prisoners who cannot be released should be kept in prisons, will inevitably lead to the overcoming of the colony scheme by natural means. After all, historically, colonies were originally designed for large groups of prisoners (a classic example is the Stalinist GULAG), and if their number is not large, the detachment system is simply not needed. And for the state, the construction and maintenance of Western-type penitentiary institutions will not be costly. In this vein, not only are legislative changes and the creation of an effective system of alternatives to deprivation of liberty necessary, but also the overcoming of attitudes of negative perception toward cell-based confinement among prisoners and CES staff themselves. They must cease to perceive a prison cell as a place of disciplinary punishment or a place to house particularly dangerous criminals, and instead see it as a means of safe living in a penitentiary institution that allows the convict to maintain their human dignity.
4) Alternatives to imprisonment. In addition, the following direction seems important: the further reduction of the prison population and the improvement of the system of alternative measures. In this aspect, legislative changes are very important. For example, the recommendations of the UN Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) regarding the application of deprivation of liberty to minors only in exceptional cases are still not fully reflected in national criminal legislation. Currently, not one of the four educational colonies in the country is empty; as of 1 June 2009, 509 minors were serving sentences in the republic’s educational colonies. Meanwhile, the implementation of the mentioned international norm in the Criminal Code of the RK would allow for a significant reduction in the rate of sending minors to penitentiary institutions. The legislator’s approach to terms of deprivation of liberty deserves some adjustment: it is obvious that for crimes that are not grave or particularly grave, the term of deprivation of liberty should be short and insignificant, and taking into account the recommendations of psychologists, no more than three years. The main obstacle to the growth of the prison population is, in our view, the improvement of the organisational-legal mechanism of alternative sanctions. In this process, legislative measures are needed to allow for the creation of a probation service and to provide mediation with formal legal frameworks.
5) Public oversight. The most important condition for the further civilised development of the criminal-executive system is public oversight as a means of civil society influencing the guarantee of the rights of convicts and CES staff, as well as a systemic method of interaction and cooperation with the CES as an element of the state mechanism. It appears that public oversight should influence the rating of correctional institutions and the level of their financing in terms of the monetary allowance for staff, personnel, and institutional administration.
In this regard, a system of public accreditation for correctional institutions based on international and national quality management standards should be developed and implemented. The results of such accreditation should influence the financing of institutions, the wages of their staff, the career advancement of personnel, and even the decision on the further activities of a specific correctional institution that receives a low rating score when assessing the quality of work with convicts and the quality of compliance with human rights and freedoms. For this, it is necessary to abandon purely departmental (state) control over the activities of correctional institutions. Independent non-governmental accreditation centres should be created, which successfully operate, for example, in the USA (American Correctional Association). Opponents of this idea should pay attention to how the higher education system of Kazakhstan is currently developing intensively, where an independent institution—non-governmental accreditation of universities—is already enshrined at the legislative level. In both cases, it is important not to forget about the client-forming connection. The student is a client, and the prisoner is a client.
Furthermore, not only penitentiary institutions but also services executing alternative types of punishment should be within the purview of public oversight. This type of oversight cannot be reduced to the activities of existing Public Monitoring Commissions (PMC); the circle of subjects of civil control should be much wider, at the expense of representatives of human rights organisations, academic circles, religious associations, and charitable foundations. The list of subjects of public oversight can be open. Such oversight will be an important prerequisite for the prevention of cruel treatment and torture. This is especially relevant in connection with Kazakhstan’s international obligations to create a National Preventive Mechanism against torture (NPM) at the end of 2009, the national model of which, unfortunately, has not yet been developed.
6) Resocialisation of convicts. Along with this, the key link in the development of the CES is the resocialisation of convicts. As noted in the work of Rakhimberdin K.Kh. and Geta M.R., “Legal Foundations of the Activities of CEI in the RK,” resocialisation signifies the restoration of the social fabric connecting the convict with society. The fabric that is torn upon a prisoner’s entry into places of deprivation of liberty. Resocialisation gives way to complex, multidimensional processes based on external and internal factors. Internal factors include positive changes in value orientations in behaviour and in the convict’s mindset—what domestic legislators call correction. External factors should include the convict’s labour adaptation and the possibility for them to obtain essential social benefits: education, medical assistance, social guarantees, and compensation. It should be noted that for a convict located in places of deprivation of liberty, in terms of their resocialisation, obtaining an education in a standard civilian educational institution and receiving medical care in civilian healthcare institutions is extremely important. As the Polish professor Monika Platek figuratively expressed it, such a convict ceases to look at the world through the eyes of a prisoner. We consider the creation of exclusively departmental prison healthcare and education to be unacceptable, as this puts doctors and teachers working with convicts in a position of dependency on the penitentiary administration, which creates various prerequisites for abuses and violations of human rights and freedoms. Standards for convict nutrition also require consideration, for the resocialisation of convicts should begin from the first day of the convict’s stay in a penitentiary institution, and their physical health, psychological well-being, and attitude toward CES personnel largely depend on the quality of the convicts’ food. We believe that requirements for food provision for prisoners should take into account not only caloric indicators but also aesthetic aspects, cooking conditions, and taste qualities. In this regard, the experience of European and North American states is interesting, where correctional institution staff consume the same food as the prisoners, prepared in the same conditions. Undoubtedly, this contributes to greater trust between prisoners and the staff of the prison system. It appears that in the aspect of resocialisation, such “trifles” as the clothing and footwear of the convict and their appearance are significant. Apparently, it is advisable to abandon requirements for wearing uniforms of an established pattern and standard hairstyles, as such requirements erect a barrier between prisoners and the population, even at the level of external perception. The colony system did not “collapse” when convicted women were allowed to use cosmetics. Apparently, the world will not “turn upside down” if convicts are allowed to have clothing and footwear that take into account their individual and personal characteristics.
7) CES staff. Undoubtedly, such a factor as the educational and professional training of CES staff deserves close attention. We believe that it acts as an inevitable companion to the civilised humane development of the system and its approach to the benchmarks of a democratic society and a state based on the rule of law. We believe that in the future, civil demilitarised elements will be more pronounced and in demand in educational and professional training. It is necessary to gradually move away from tasks involving training the employee as a soldier—a specialist in operational work who is skilled in hand-to-hand combat and drill training and knows how to use firearms. We believe that for a modern penitentiary institution employee, especially one in which prison-type features will predominate, it is more important to possess knowledge, skills, and abilities in the field of organising social work, preventing anti-social, criminal, and victimising behaviour of the prisoner, and in the sphere of penitentiary psychology, pedagogy, prison management, and the functioning of services executing alternative punishments. Since education is a tripartite process that includes teaching, upbringing, and the development of the individual, attention should be focused on training programmes for CES staff and on forming value orientations in them in the spirit of respect for human rights and freedoms, tolerance toward convicts, and international standards for the application of punishments and alternative measures. It is necessary to develop in employees the ability to introduce and use innovative methods and technologies of social work with convicts, and to include courses on international law and mechanisms for the protection of human rights and freedoms in educational programmes. In their activities, the staff of the criminal-executive system of Kazakhstan should rely on scientific developments and the latest research and study global experience, which will allow for determining the main paths for the development of criminal and criminal-executive policy for the coming decades. In this regard, analytical and research services of the CES should be developed.
Great attention should be paid to increasing the social and legal status of the criminal-executive system employee, which is expressed in ensuring that society develops an understanding that they perform an important, responsible, and complex function of the modern state. A criminal-executive system employee must have a decent social package that allows them to perform their professional functions as effectively as possible and restore their spiritual and physical strength. This will allow for minimising the level of corruption in the agencies and institutions of our country’s criminal-executive system. These measures will allow for avoiding professional deformation and the destruction of the criminal-executive system employee’s personality, and for raising the prestige of this profession.
In their activities, the staff of the criminal-executive system should be guided by the European Prison Rules approved by the Council of Europe in 2006, a kind of European version of the UN Standard Minimum Rules for the Treatment of Prisoners.
By consistently implementing these directions, we will gradually arrive at an effective, humane, and safe criminal-executive system of the future.

Rakhimberdin Kuat, Candidate of Legal Sciences,
Dean of the Law Faculty, VKSU named after S. Amanzholov