The assistant professor of the Eurasian Humanitarian Institute and doctor of juridical sciences, Ablaykhan Akkuliyev, on the problems in the prison system and reform.
– Ablaykhan Shyntemirovich, you know the problems of the penitentiary system first-hand. Could you please, therefore, describe the main problems briefly?
– First of all, attention must be drawn to two negative aspects which have been discussed for a long time now. First, we continue to deceive ourselves, taking what we wish to be the reality, allowing the declaration of guidelines of the Criminal Executive Code, which don’t quite match the reality and for various reasons are not accomplishable.
Secondly, we continue to perceive these activities as well as the body implementing them, as secondary. For example, even now, when a heated discussion was held on the new Сriminal Procedure Code, and for more than a year mass media kept discussing this one issue solely, the Criminal Procedure Code appeared suddenly, quietly, as if out of nowhere, in accordance with the residual principle, and there was not one public discussion or conference held. The two aspects, combined with the accusatory approach, historically dominating in the law enforcement and judicial systems, constitute the root of all problems in prisons and in the сorrectional sphere in general.
– In your opinion, does the draft of the new Criminal Executive Code fulfil the requirements? Is it capable of eliminating visible gaps and contributing to the humanisation of the penal policy?
– Undoubtedly, the developers of the draft of the Criminal Executive Code did a great job, but all major institutions have remained fundamentally unrevised, although some positive amendments, designed to meet modern requirements, do exist. But one of the most difficult issues, which is now being actively discussed, is the reduction of the prison population – and the question remains unresolved, since it goes beyond the provisions of the CEC.
Moreover, it seems that a number of convicted persons, incarcerated in prisons, will grow. You must be aware of the fact that over the last three years we have managed to reduce the prison population by approximately 15,000 people, and today, the so-called ‘index of the prison population’ is 295 inmates per 100 000 people, and it is still an unjustifiably disproportionate number. For comparison – we will not consider European indices, as they are fundamentally incomparable to ours, so instead, we will consider our nearest Central Asian neighbours.
In Kyrgyzstan, for example, the index of the prison population amounts to 181 (in spite of two revolutions and a surge in crime). In Tajikistan – 130 (despite the fact that the country was deeply immersed in civil war over a sustained period). In Uzbekistan – 152. All of these countries are much poorer in terms of socio-economic conditions of life.
At the same time, it has been established that long-term imprisonment not only generates huge costs which increase annually, but, what is even worse, it leads to the degradation of prisoners, at the same time actively fuelling the criminogenic component of free society, and recidivism. And so, almost every second convict is incarcerated. Simultaneously, each of the convict’s relatives, friends, whether willingly or unwillingly, find themselves within the range of these criminal relations. It’s like a vicious circle, the more people are sent to prison by society; the more become not only criminalised, but also opponents of the existing system of power.
– Do you think the prison population will continue to grow in our country?
– You know, in 1997, when the Criminal Code was adopted, general prison terms were significantly extended, but, at that moment, it might have been justified – the country was in a difficult socio-economic situation, and crime levels were increasing. Now, the situation has changed for the better, and so, we believe that in the new draft Criminal Code, we should revert back, at least, to the same prison terms which were provided for in the Criminal Code of the Kazakh SSR, but the new draft doesn’t appear to address this issue.
Moreover, in the case of some high-profile crimes, the issue of harsher punishments is immediately raised, and often the aggravation of punishment indeed takes place, though it has long been known that the inevitability of punishment is much more effective than its severity. We have, in practice, replaced the inevitability of punishment with its severity. Today, the first steps are being taken towards the inevitability of punishment becoming a more important factor.
Over the last two years, registration policies have become significantly more stringent. In 2010, there were 131,896 recorded crimes, but in 2011 we saw an increase to 206,801, and in 2012, it grew further to 287 681. As you can see, the growth in just two years has more than doubled, and these are very alarming symptoms, especially taking into consideration that haven’t witnessed the same dynamics in crime detection.
It is hoped that the increase in the number of crimes will bring about an increase in the prosecution of perpetrators, and this factor, combined with longer prison sentences will inevitably lead to an increase in the prison population. By the way, it has already begun to grow, and since the end of last year it has increased by nearly 2,000 and will continue to grow if we do not revise the general terms of imprisonment, and, what’s equally important, fundamentally change the measure of response to crime. In this sense, the Criminal Executive Code is merely a derivative of the Criminal Code.
– How, in your opinion, is the new draft of the CEC different from the current code?
– In principle, the main provisions are no different. The new draft of the CEC is a very good opportunity to correct the provisions which are not consistent with reality and are not being implemented properly. In order to do this, it is necessary to critically review the content and implementation mechanisms of such basic issues as the objective of the criminal executive law, the basic means of correction, probation, rehabilitation etc. But this has not been done, despite the fact that all these major issues are set out in the draft in its current form.
For example, we still continue to aspire to the unattainable goal of ‘restoring social justice’, but we have not established any effective mechanisms for its implementation in the CEC. Or, all CECs are designed to achieve the goal of ‘correction’, although we are perfectly aware of the fact that no correction whatsoever is taking place, especially in places of imprisonment.
Let us take another example – post-institutional rehabilitation. This is a very serious problem, as people are isolated from life and reality outside of prison; for years, they lose their jobs, family, housing, skills, and all these issues have been shifted to local authorities and, as they say, they have closed the issue. Hence, almost half of those incarcerated are recidivists. Meanwhile, it has been mentioned repeatedly that there is potential for organising initial rehabilitation for people who are still serving their term at the very least. A proposal was put forward under which all convicts serving their final stage of imprisonment, say, serving their last six months’ imprisonment, should be mandatorily transferred to an open penal colony in close proximity to his or her place of residence, close to their family. There, they would be able to gradually adapt to the conditions of life in society, i.e. to look for a job, restore social ties, etc. Given that more than 80 per cent of prisoners in our country are released from prisons with general, severe and special security regimes, it would create an effective mechanism for their adaptation in a free society. This is a tried and tested method in Europe, where in many countries, for the final six months, or final year of their prison term, convicts are placed in so-called ‘semi-open’ prisons, where they are able to adapt to life outside prison.
We have also, from time to time, seriously discussed the question of closing open prisons as they are breeding grounds for all kinds of violations of law committed by convicts. Indulge me on my boldness, but once we transferred to open facilities convicts from closed institutions, in which they still should have served 10 or more years, what in the world did we expect from them? Violations of law also happen in closed colonies, and, according to that logic, we should close them, too.
In general, the draft of the CEC retains the spirit of the Soviet camp system; the levers which separate the public from the problems of prisons, forced labour, the use of formal, empty declarations and so on, are maintained.
– We fought for the transferral of the Committee on Criminal Executive System back to MIA structures. Well, it was transferred. And what came of it? Has the penitentiary system improved or not?
– It is difficult to judge, too little time has passed for us to draw conclusions. But judging by some indicators, the return of the CCES to the jurisdiction of the Interior Ministry has so far led to an increase in conflict between the administration and convicts, and, what is particularly disastrous – to its gradual separation from free society, as is visible in the current situation in prisons. For example, the number of acts of self-mutilation in 2011 compared with 2010, increased by 2.5 times, while in 2012 – 3.5 times. The number of people participating in them, compared with 2010, increased by a factor of approximately 1.3, while in 2012 – by 1.8. The number of malicious violations of the rules increased 4-fold in 2011 compared with 2010,, while in 2012 – 10-fold. Visits by the Public Oversight Commission, specifically established for the purpose of overseeing prisons, decreased by 10 percent in 2011, compared with 2010, while in 2012 – by more than 50 percent. Visits by other various civil society organisations decreased in 2011, compared with 2010, by approximately 9 percent, while in 2012 – by 37 percent. Unfortunately, during the entire period of our independence, we have not managed to implement any positive changes in the psychological atmosphere in prisons.
– So today, we have a criminal executive system, which is no different from the Soviet one?
– Unfortunately, it is so. It is still a militarised system, located in the structures of the Interior Ministry, formed on the basis of a residual principle, with priority for operational and security-serving activities, rather than social measures, with the forced labour of convicts, accumulation of large masses of people in a confined space, the mismatch of the declared provisions with reality, and with an ever-thriving prison culture, and even with the same method of assigning numbers to penal colonies, inherited from Gulag times. In other words, in fact, the system is basically still in the Soviet past, both externally and internally. Taking this into account, we should not expect any major improvements in the resocialisation of convicts in the foreseeable future.
The most challenging problems in this area are: the shortage of material and technical equipment, forcing convicts to live in barracks divided into a system of wards, and poor staffing.
The principle of the settlement of convicts in barracks still remains a stumbling block, which does not allow for a positive impact on inmates on a systemic level and in compliance with the principle of individualisation of punishment. Today, approximately 30 percent of prisoners renounce the administrative procedure, cultivate their own understanding of the world and often actively oppose the administration. I’m sorry to admit this, but although the administration still dominates during the day, at night, the rules established by prisoners prevail. And an average prisoner is under the constant influence of those 30 per cent, being forced to support and observe their rules of conduct. Under such circumstances, the implementation of serious, systematic, educational work is genuinely impossible. Therefore, it is vital that we build new prisons which house inmates in cells. This will gradually eradicate the prison traditions with all their inherent criminal prison subculture, which is based solely on the collective settlement of convicts in a small enclosed space. Its basis is the so-called dorm, a concept which should be abandoned in favour of individualising the order of serving a term to the greatest possible extent. This will significantly increase the safety and security of inmates and, thus, will serve as an additional good incentive for resocialisation.
– According to the leadership of the Ministry of internal Affairs, within the next two to three years, the conditions of Kazakh prisons will be brought in line with European standards. Does this mean that we will have new prisons and the situation will change dramatically?
– With all due respect to the leadership of the Ministry of Internal Affairs, it cannot be done within such a short term. Even if the number of prisoners is reduced to 30,000 people in the near future, which is a very difficult task in itself, we still need to build 15 new prisons with a capacity of 1,500 people, even taking into account the country’s existing prisons. At the same time, it was recently asserted that a new prison that meets international standards, with a capacity of 1,500 people will cost 25 billion tenge, which is a colossal amount of money. Do you really believe that within the next two or three years we can find the money to build at least one prison? I strongly doubt it. Secondly, however modern the prison may be, still, the execution of punishment will be carried out by its workers, and it will definitely take more than two or three years to change their mind-set.
European standards primarily pertain to the mentality inside prisons as well as their moral and psychological component. The situation in which the criminal court orders imprisonment and the culprit, who is a human being, knows that he is deprived of his liberty, but not of his honour or dignity, and there is no danger to his health and life, he does not need to adapt to the ‘authorities’, the administration, which will not persuade him to cooperate and will not blackmail him… Have you seen the conditions of detention of infamous mass killer Breivik in Norway on TV? We, with our perception, were rather unpleasantly surprised and puzzled, but these are the very European standards; their treatment of prisoners and the material resources of prisons.
– Are our prison workers able to work in accordance with European standards?
– In this respect, the situation is so complex that it actually does not depend on the willingness of workers. There are many factors: the conservative system, the conservative relations, everything was inherited directly from the Soviet system, and has continued to be passed from senior to junior workers, from ‘veterans’ to novices. There is constant confrontation. And convicts often contribute to this situation. The barrack-based detention system itself cultivates the ‘prison traditions’ and has a negative effect on the consciousness of workers. And, additionally, there is the declaration of fundamental provisions which do not match the realities of life. By inertia, we do not even think about them, and even worse, we do not consider them valuable, which only exacerbates the situation, undermining the sense of justice not only in the minds of convicts, but also prison employees. It’s a vicious cycle, and in order to break it, one needs to introduce cell settlement of prisoners; with this system of detention, we will be forced to review the methods, techniques and means of influencing convicts.
It should also be borne in mind that the most educated, active young people, who speak foreign languages, strive to live in city centres and work in prestigious institutions and organisations, rather than stay behind barbed wire somewhere outside the city for long days. I’m not even going to touch on the extremely negative impact of this work on the moral foundations of the employees. Communicating with prisoners practically around the clock will hardly bring inspiration to anybody’s life.
Therefore, it is important to move actively towards the cell-based settlement of convicts, as this is the foundation which offers an opportunity to have the most positive influence on the moral and psychological foundations of employees. And then, we need to change certain customs. Namely, in many developed countries, the staff do not stay in prisons for 24 hours, but they work in three shifts; heads of such institutions are employment or social work managers, and not heavily-experienced operational workers, while the first deputies of the heads supervise not operational and security work, but rather social activities.
For example, in Germany, in order to become a member of the prison authorities, one must join a waiting list in order to undergo six months of training, which is only valid for a specific department and the skills and knowledge gained cannot be used, say, in the police force. Or, let’s take the neighbouring Kyrgyzstan as an example. According to available information, the salary of prison staff is permanently determined on a level 25 per cent higher than that of the police. Or, let’s take the long-debated question of inefficiency, and in some respects, harmfulness of the system of training in specialised schools, the system of special ranks that generally go outside the scope of the CEC and require comprehensive overhaul.