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Study։ The Probation Service in the Republic of Armenia․ Operational legislative basis and main challenges (Part one)

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UDC 343

This study is the English translation of Armenian publication conducted by the Helsinki Association, a non-governmental organization, within the framework of the “Support to Judicial Reform” Program implemented in cooperation with the Eurasia Partnership Foundation and Human Rights Power NGO.

The content of the study and the views expressed are solely those of the Helsinki Association NGO and may not necessarily reflect the views of Eurasia Partnership Foundation or Human Rights Power NGO.

 

The Probation Service in the Republic of Armenia. Operational legislative basis and main challenges: Part 1 / Hasmik Harutyunyan.- Yerevan:  Helsinki Association, 2021.- 30 p.

 

This collection of articles is part of a series of manuals on “Civil Society” (CS) published under the title “EPF University”. The series includes conversations on four broad topics:

 

 

  • Critical Thinking (CT)
  • War and Peace (WP)
  • Civil Society (CS)
  • Education, Historical Methodology, Culture and Values (EHMCV)

 

ISBN 978-9939-1-1316-6                                                                © Helsinki Association, 2021

 

 

 

Contents

Preface. 3

 Prerequisites and necessity of establishing a probation service. 5

 Legislative basis of the probation service: main goals and principles. 7

 Functions of probation according to the stages of criminal justice. 10

 Alternative precautionary measures. 11

 Security measures. 16

The functions of the probation service in the processes of conditional non-application of the sentence, parole and replacing the sentence with a milder sentence. 18

Functions aimed at re-socialization. 20

 Electronic monitoring. 22

Probation service functions and legislative provisions in the field of conciliation. 25

Probation at the post-punishment stage. 26

Institutional status of probation. 27

Funding for the Probation Service. 28

Summary: main issues and challenges. 30

Recommendations 31

Abstract 33

 

 Preface

On May 17, 2016, the Republic of Armenia adopted the Law on Probation, which formed the basis for probation in the country and established a probation service independent of the penitentiary service. The introduction of this institution was conditioned by the need to move from punitive policy in the field of criminal justice to restorative justice. Rehabilitation and social reintegration of offenders are paramount in the context of this philosophy.

Since the enactment of the law and the commencement of the service, however, an assessment of the operation of the Probation Service, as such, has not been undertaken, nor has there been a study of the legal basis of the sector and the legal relationships which still demand regulation. The performance of the service has not been evaluated in practice either, which would enable identification of the main risks and challenges in the first years of operation.

Although the Probation Service submits regular reports[1] to the public and the Ministry of Justice on its work, the reports are not substantive and they do not contain qualitative data, nor do they evaluate effectiveness and possible risks. Arguably the most comprehensive study conducted in the field has been the RA Human Rights Defender’s 2018 report[2] in which it monitored the activities of the RA State Probation Service, summarizing the results. The report noted that although the concept of restorative justice was enshrined in law, serious steps still needed to be taken to ensure its proper application in practice.

In the context of the above, the 2019-2023 RA penitentiary and probation sector strategy and action plan, which presents the problems of the sector and the directions of reforms, is encouraging. In particular, the primary directions of reforms include improving the legislative framework, bringing current legislation into line with international legal standards, as well as increasing the efficiency of the Probation Service, especially the continuous development of legislation, reviewing the status of the Probation Service, providing social guarantees, improving equipment and re-socialization of probation beneficiaries[3]. The strategy and action plan have already been approved[4] by the RA Government, which allows us to expect that the goals and actions set out will be implemented.

This study was conducted on the basis of the need to examine the legal basis, results and preconditions of the Probation Service’s 4 years of activity, as well as the challenges that still exist.

The study consists of two parts. In the first phase, the legislative framework regulating the sector and related legislation is examined, highlighting the existing gaps and contradictions as well as the directions of priority reforms. Accordingly, the study shows the main legislative obstacles to the effective operation of the service and the performance of its functions.

The main sources of information for this section of the study were:

  • RA Law on Probation
  • Legislative regulations in the field of criminal justice: the penitentiary, criminal and criminal procedure codes,
  • Drafts of the afore-mentioned codes in the field of criminal justice,
  • The penitentiary and probation sector strategy,
  • Relevant decisions of the RA Government,
  • Orders of the RA Ministry of Justice related to the sector,
  • Probation studies and existing reports,
  • Requests for information, addressed to the competent authorities.

The second phase of the research is based on the practical activities of the Probation Service. It is still in progress, the results will be available shortly. It is being implemented on the basis of targeted individual interviews with probation officers and beneficiaries through pre-designed questionnaires.

The results of the study of the service’s practical activities will reveal: the service’s level of effectiveness in the re-socialization of beneficiaries; the scope of implementation of measures provided by law; omissions and their reasons; the state of the service’s material resources and conditions, including main issues arising and necessary changes; collaboration with state and non-state bodies; human resources policy issues and staff overload.

Prerequisites and necessity of establishing a probation service

Improvement in criminal justice and the criminal punishment system was foreseen as a separate activity and goal back in the 2012-2017 Strategy and Action Plan for RA legal and judicial reforms adopted by decree NK-96-A on 30 June 2012. In that section, a special place was given to reforms of the penitentiary system, within the framework of which it was planned to create a probation service[5].  This was suppoed to be in the structure of the RA Ministry of Justice, as a body independent of the penitentiary service.

The program and action plan for judicial reform was approved in 2012, and two years later, in 2014, the concept of introducing a probation service in the country was adopted[6]. The need for the service arose on the one hand from the low effectiveness of social, psychological and legal work in penitentiaries and, on the other hand, from the need to develop subsystems for alternative punishment to imprisonment. The need for the service also stemmed from the country’s judicial practice. In particular, during the pre-trial investigation of criminal cases, detention was the main choice of precautionary measure against the accused, and in this case the person did not “avoid” imprisonment: as a result, the courts mostly imposed imprisonment on those who committed crimes, which was one of the most problematic issues in the sector.

In this respect, one should remember that in 2005 the RA Penitentiary Department established alternative penitentiary subdivisions for the correction and rehabilitation of convicts in the Republic of Armenia. The aim was to ensure the serving of non-custodial sentences as provided for under the RA Criminal Code: fines; deprivation of the right to hold certain positions or engage in certain activities; community service; deprivation of a special or military rank, grade, degree or qualification; confiscation of property. Later, the department was tasked with overseeing probationers on probation, women who whose sentences had been deferred due to pregnancy, or because they had children under the age of three[7].

As the experience of the above-mentioned departments showed, no correctional and rehabilitation work was carried out with convicts, and it was the same story as regards supervision of the behavior of probationers[8].

Accordingly, the establishment of a probation service was seen as an effective solution to the problems in the sector, such as the courts imposing unnecessary sentences of imprisonment, as well as the practice of choosing detention as a measure of restraint for the accused, and would reduce overcrowding in penitentiaries.

Legislative basis of the Probation Service. Main goals and principles

Probation is based on working with criminals in the community, to protect the public and reduce recidivism. Probation services work throughout Europe in a community-oriented way, through alternative means to imprisonment. Probation was originally created with the support of voluntary and religious organizations that worked with perpetrators. It has now become one of the main institutions of the criminal justice system, offering courts a number of alternatives to imprisonment, relying on specialized and suitably qualified staff. At the same time, it supports those who have returned to society from prison and promotes their re-socialization. Accordingly, probation is based on the principles of assistance, referral and re-socialization[9]. Countries with effective probation services operate in this direction and are guided by these principles[10].

The probation service introduced and operating in the Republic of Armenia was established with this purpose in mind and initially adopted similar principles. Accordingly, the concept adopted in 2014 predetermined the institutional affiliation, main goals, objectives and functions of the probation service.

According to the concept, the goals of the RA Probation Service were to reduce crimes by supervising, directing and supporting those who committed crimes, promoting their effective re-socialization, public safety, and the administration of justice.

The main objectives of the service were to:

  • Contribute to the reduction of crime and recidivism;
  • Facilitate the easing of overcrowding in penitentiaries;
  • Facilitate more informed and impartial decision-making in the procedures for selection of precautionary measures and imposing sentences;
  • Facilitate more informed and impartial decisions in the process of releasing the convict on parole or replacing the unserved part of the sentence with a milder one;
  • Contribute to the correction of offenders in the society;
  • Contribute to the restoration of social justice;
  • Contribute to the re-socialization of offenders;
  • Ensure public safety by reducing the likelihood of new crimes being committed by an offender[11].

On May 17, 2016, the RA Law on Probation[12] (hereinafter referred to as the Law) was adopted, which presented with greater precision and detail the general goals and principles of the service, as well as the main directions and stages of activity in the criminal justice system.

In particular, Article 4 of the Law specified the main goals of probation, according to defined stages:

  • Implementing measures aimed at preventing possible illegal behavior of the accused during the criminal proceedings and ensuring the fulfillment of the court’s duties imposed on him/her by ensuring the use of alternative precautionary measures;
  • Restoration of social justice for a person found guilty of a crime through alternative means of implementing the penalty or coercion foreseen by the judicial act, resocialization of the sentenced person; ensuring the normal physical and psychological development of minor probationers, their instruction and potation from the bad influence of other people;
  • Ensuring public safety through the prevention and reduction of recidivism;
  • Reconciliation between the beneficiary of probation and the victim (or his/her legal successor);
  • Support to the administration of criminal justice.

The above-mentioned goals, set out in the Service’s concept and subsequently in the Law, are in line with the recommendation of the Committee of Ministers of the Council of Europe on probation, which states the general purpose of probation, namely: it relates to the implementation in the community of sanctions and measures, defined by law and imposed on an offender. It includes a range of activities and interventions, which involve supervision, guidance and assistance aiming at the social inclusion of an offender, as well as at contributing to community safety[13].

As for the objectives of probation defined by the Law, they were formulated as follows:

  1. Implementation of alternative precautionary measures provided by this law during the criminal proceedings;
  2. Execution of non-custodial sentences and other coercive measures applied by the court;
  3. Implementation of individual planning for the execution of non-custodial sentences and alternative precautionary measures, based on risk assessment and taking into account the needs of the probation beneficiary;
  4. Provision of advisory reports on the probation beneficiary regarding parole, replacement of the sentence with a milder sentence and removal of the criminal record;
  5. Exercising supervision over persons who are on probation, or have been released from serving a sentence, or are on conditional early release from a sentence or whose sentence has been deferred;
  6. Conciliation between the probation beneficiary and the victim (or his/her legal successor).

It should be noted, however, that one of the issues originally enshrined in the concept introducing the Service, namely facilitating the easing of overcrowding in penitentiaries, which the authorities regularly presented as a key goal for the introduction of the service, is not the main mission of probation, and therefore it cannot be considered a conceptual issue. This in itself is explained by the general description of probation given by the above-mentioned recommendation of the Committee of Ministers, as well as by the role of probation in individual countries[14]. Accordingly, the easing of overcrowding in penitentiaries should be a natural consequence of the effective operation of the probation service, not the main purpose of the activity.

Studies show that in countries with probation, it is the best option for crimes that do not envisage imprisonment for criminals, and therefore provides wider opportunities for reintegration into society. Moreover, the service itself is less expensive[15].

Combining the above with the goals and objectives of the probation service introduced in the Republic of Armenia, we can state that the target directions, principles and issues set out in the Law are in line with the general principles of probation, which is one of the necessary – but not on its own sufficient – conditions for an effective service.

Functions of probation according to the stages of criminal justice

The United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) set out alternative types of sanctions and their application at all stages of criminal justice[16]. Based on the goals of social reintegration of the offender, protection of the victim’s interests and public safety, the Rules provide for a wide range of alternative remedies:

  • Parole;
  • Penalty;
  • Verbal sanctions, such as reprimands, warnings;
  • Fines;
  • Compensation or restoration;
  • Probation and court supervision;
  • Community service;
  • House arrest,

As we can see, the Rules also provide for the possibility of applying probation, the functions and phasing of which in the criminal justice process may vary.

Initially, the concept envisaged a phased introduction of probation in Armenia, but later, the provisions of the Law show that, in essence, the functions of the Probation Service are intended for all stages of criminal justice: pre-trial, trial, penitentiary (during execution of the sentence) and post-punishment.

Accordingly, the objectives set out in Article 4 of the Law are presented in more detail in chapters 3-7 of the same law, already as the main functions.

Thus, Chapter 3 of the Law provides for the service to perform alternative precautionary measures as a function of criminal proceedings.

Alternative precautionary measures

Article 12 of the Law provides in sufficient detail the procedure and deadlines for ensuring the implementation of alternative precautionary measures. In particular, it sets out the responsibilities of the probation officer after receiving the decision of the competent body on the application of an alternative restraint measure: the probation officer immediately, but not later than within one working day, finds out the location of the probation beneficiary, contacts him/her, duly notifies him/her to appear before the district body, and in case of alternative pre-trial house arrest visits the probation beneficiary, opens a file and a supervision plan for the probation beneficiary, and completes a registration card. The beginning of supervision is calculated from the moment of registration of the probation beneficiary.

Based on and within the framework of the decision of the competent body that applied the alternative measure of restraint, as well as based on the assessment of the risks and requirements in relation to the probation beneficiary, the probation officer defines the probation beneficiary’s actions which are to be supervised in the supervision plan, the time periods, rights and responsibilities, as well as the liability provided for by law in the event of a breach.

In the event that a probationer violates the terms of an alternative measure of restraint, the probation officer shall, on the basis of the internal probation regulations, take measures to find the beneficiary and ensure that the restrictions imposed by the competent authority are complied with, and immediately notifies the body conducting the criminal proceedings[17].

The completion or termination of the application of an alternative precautionary measure shall be certified by a certificate issued by the district body to the probation beneficiary. The information is also passed to the competent body and the RA Police, and the personal file is archived.

The law also introduces some features regarding implementation of house arrest and administrative supervision.

Thus, it is stipulated that after receiving a judicial act on house arrest or administrative supervision, the probation officer immediately, but not later than within one working day, registers the probation beneficiary and informs the body conducting the criminal proceedings that he/she is under supervision. Moreover, the requirements of the judicial act on these two measures are obligatory for the bodies and organizations responsible for the security and administration of the district where the probationer resides, for his/her workplace administration, as well as for the administrations in those places where the probationer is prohibited from visiting by court order[18].

The introduction of the probation service, as already noted, presupposed the adoption and implementation of additional alternative measures, as provided for by relevant legislative acts.

In particular, the concept of the new Criminal Procedure Code approved by Protocol Decision No. 9 of the RA Government on March 10, 2011 and, based on the concept, the draft of the new RA Criminal Procedure Code envisage a series of new alternative precautionary measures and therefore also specify the legality of their application[19].

Briefly referring to the draft Code, it should be noted that it was developed on the basis of two cornerstone criteria: innovation and moderate conservatism.

The draft Code provides for the possibility of applying the following alternative precautionary measures:

  • house arrest;
  • administrative supervision;
  • collateral;
  • suspension of office;
  • prohibition of absence;
  • guarantee;
  • educational supervision;
  • military supervision.

At the same time, it is stipulated that alternative precautionary measures can be applied both individually and in combination, if it is possible to ensure the simultaneous observance of their conditions.

The draft also presents in detail the features and procedure of application of each type of measure[20].

It should be noted with regret that, as of 2020, these measures are still only part of the draft and are not operational, making it impossible to fully implement the powers given to the Probation Service in this area. In other words: despite the planned changes, they have not yet been implemented and cannot be applied within the framework of probation.

This circumstance was also addressed by the RA Probation Service as a separate issue, pointing out the need to ensure the implementation of amendments to the Criminal Procedure Code and alternative precautionary measures[21].

Referring to the measures already envisaged, it is necessary to make a comparative study of alternative measures implemented by other countries and the RA Probation Service.

Thus, there are a large number and variety of alternative measures, the choice of which, however, is ambiguous in a particular system, depending on the criminal justice system, regulations and the scope of powers of the probation service. The most common alternatives used in probation in European countries are the following[22]:

  • House arrest (Czech Republic, Portugal);
  • Public works / community services (Belgium, Bulgaria, Czech Republic, Estonia, Finland, Latvia, Luxembourg, Portugal, Netherlands, etc.);
  • Restriction of liberty (Portugal);
  • Supervised freedom: applies mainly to minors (Romania);
  • Prohibition to visit / stay in a certain place (Czech Republic, France, Hungary);
  • Prohibition to participate in sports, cultural or other social events (Czech Republic);
  • Participation in supportive therapy under a plan developed by a specialist (Czech Republic);
  • Prohibition of certain activities (Czech Republic, Hungary);
  • Probation order, which assumes that the beneficiary is supervised by a probation officer for a period of up to 3 years, under court conditions, which may include the above measures (Cyprus, Ireland, Malta);
  • Driving ban (Hungary).

It should be noted that the above list is not exhaustive, there are also other types of alternative measures.

The probation service in neighboring Georgia implements the following precautionary measures as an alternative to imprisonment[23]:

  • Restriction of the right to hold a certain position or to perform certain actions;
  • Restriction of a legal entity’s right to perform certain actions;
  • As a punishment: community service;
  • As a punishment: correctional labor;
  • As a punishment: restriction of liberty;
  • As a punishment: house arrest.

We can state that the Law provides alternative means in line with existing standards and capabilities. At present, however, the Probation Service does not apply alternative measures of restraint due to the fact that the current Criminal Procedure Code does not provide such an opportunity, although the new draft Criminal Procedure Code contains quite a wide range of alternative measures. As already mentioned above, the draft envisages the application of about 8 new alternative precautionary measures: if effectively applied, this will be sufficient to ensure the purpose of probation in the criminal justice system. Moreover, as the above list of diverse options for precautionary measures in European countries has shown, the list envisaged in Armenia fully complies with current standards.

In other words, it should be noted that what is envisaged by the draft still exists only at the theoretical level, and the powers given to the service by the Law are not exercised, for which in this case the executive and legislative departments processing the draft are primarily responsible.

Despite the fact that the probation service is empowered by the Law to implement alternative measures of restraint, at the moment this is not done due to the flawed application of existing regulations and the lack of complex legislative solutions.

Security measures

Next, the Law provides for the ability to implement security measures, as well as their procedure and terms.

In particular, after receiving the judicial act on imposing a security measure, the Probation Service immediately, but not later than within one working day, finds out the location of the probationer, contacts him/her, duly notifies him/her to appear before the district body, opens a file and a supervision plan for the probation beneficiary, and completes a registration card. The beginning of supervision is calculated from the moment of registration of the probationer.

Legal consequences of violating the terms of a security measure are also envisaged, according to which the failure of the probationer to appear for the first time without good reason gives rise to liability under the law. After imposing an administrative penalty as envisaged for the offence, if the offence is repeated within one year, the district body shall draw up a protocol to that effect and submit a motion to the court to change the type of security measure.

Articles 17-22 of the Law, accordingly, define the types:

  • Prohibition to visit certain places;
  • Obligation to receive psychological help;
  • Special supervision of behavior;
  • Family supervision;
  • Involvement in educational, cultural, sports or other measures.

Despite the fact that the Law envisages the procedure for ensuring implementation of the security measures defined by criminal legislation, and chapter 5 of the same Law, which provides for the measures, came into force on January 1, 2018, security measures are not set out in the current Criminal Code. They have been included in the draft of the new Criminal Code, which has not yet entered into force. It turns out that the regulations in this regard and the guarantees of their practical application are incomplete.

In particular, the draft Criminal Code stipulates that a court may impose a security measure if it finds that a person who has committed an offense subjet to punishment under this Code may commit such an act again, or the use of a security measure is necessary to ensure the safety of a person or society[24].

A security measure may be imposed in conjunction with a sentence if the court finds that a sentence alone cannot eliminate the possibility of a person committing a new crime, or without combining it with a sentence but as an independent measure, including where the individual is acquitted or not subjected to punishment.

Moreover, more than one security measure may be applied in respect of a single criminal act for which punishment is envisaged.

With regard to the types of security measures, the following may be applied to a person who has committed a prohibited act for which punishment is envisaged:

  1. Medical coercive measures:
  • Outpatient supervision by a psychiatrist and compulsory treatment;
  • Compulsory treatment in the psychiatric department of general control of psychiatric institutions;
  • Compulsory treatment in a special type of psychiatric department of a psychiatric hospital.
  1. Prohibition against visiting certain places;
  2. Obligation to receive psychological assistance.

In fact, these measures provided for in the Law on Probation are not implemented either, as the current Criminal Code does not have such regulations, and the draft of the new code with the above-mentioned provisions has not yet entered into force.

Adoption of amendments to the Criminal Code, however, will not be sufficient to implement the legislation on security measures, since all the necessary conditions must be present: provision of human and technical resources, effective cooperation with the judiciary, and effective mechanisms for implementing the measures.

The functions of the probation service in the processes of non-conditional application of the sentence, parole, and replacing the sentence with a milder sentence

The role of probation, and especially the probation officer, in the process of parole and replacement of the unserved part of the sentence with a milder form of punishment is done through consultative reports. They are compiled on the basis of information contained in the database and personal case, and from meetings with and inquiries of the probationer, his/her education or workplace administration, family members, relatives, friends, neighbors, as well as from information received from state, local government bodies, institutions and other organizations, and from the data provided by the employees of the relevant penitentiary institution and other persons.

The reports of the Probation Service on parole and replacement of the unserved part of the sentence with a milder one are based on the RA Minister of Justice decree No. 336-L of July 12, 2018[25].

The report should specifically include the individual’s:

  • Name, surname and patronymic;
  • Day, month and year of birth;
  • Socio-psychological description of the person;
  • Ability to work, length of service and type of occupation;
  • Education;
  • Health condition;
  • Social and property status;
  • Marital status and existence of persons under their care;
  • Existence of permanent residence;
  • Certain tendencies, possible dependencies, and preferences;
  • The nature of the crime and the degree of danger to society;
  • The attitude towards the crime he/she has committed;
  • Behavior, work activity and participation in cultural and educational events during imprisonment;
  • Information concerning correction and re-socialization;
  • Other circumstances.

Under the legislation, the obligation to prepare reports applies to all probation officers without specific classification or criteria, which is problematic. First of all, there is no separate department or group of employees within the service specifically specialized in preparing reports. This issue is stressed because the reports to be drafted are documents which are essential to the beneficiaries, and so the information contained therein should be as professional as possible.

Moreover, some of the information in the report, such as the description of the real attitude towards the crime committed, the socio-psychological characteristics of the person, identification of addictions and tendencies, correction and re-socialization tendencies, etc., require a professional approach, use of special tools and guiding criteria, which is objectively impossible to do in the current service with its level of human, material and other resources.

Simply drafting and presenting such reports on the basis of information already provided by the institution leads to another problem, that is: the role of probation in this process and the report prepared have a merely artificial nature. In order to avoid such risks, it is necessary for there to be a legislative requirement that such reports will be drafted by a special group, using the necessary toolbox.

The above-mentioned order also stipulates that the probation officer must visit the relevant penitentiary institution at least once when compiling the report, in order to study the convict’s personal file, talk to the convict, compile an extract based on the convict’s personal file, and make copies if necessary.

Although it is stipulated that the employee must visit the relevant institution where the offender is serving the sentence at least once, however, given the workload of the staff and the tight procedural deadlines, the meetings are generally few and brief, which can not be considered sufficient to gather reliable information concerning the beneficiary[26].

According to the analysis[27] of the Criminal Code and the Probation Law, the Probation Service has the power to replace a sentence with a lesser one, which is again done through the submission of an advisory report. Reports should meet the requirements set out above, but, as study of current practice has already shown, such reports are not prepared[28].

Functions aimed at re-socialization

Probation was originally introduced in the criminal justice system for the social reintegration of offenders and as a preventative measure in the fight against crime. It was adopted in European countries and later spread as an important principle for the eradication of the punitive system.

Accordingly, a reduction in the number of crimes within the framework of probation is directly related to establishing a positive relationship with offenders and promoting their social reintegration[29].

This approach was also adopted with the introduction of the probation service in Armenia and enshrined in the legislation. The functions of the Probation Service in the re-socialization of beneficiaries were envisaged by law.

Specifically, the Probation Service shall develop and implement appropriate work, social security, cultural, educational, vocational training and requalification, sports, health, psychological and behavioral employment programs for the re-socialization of its registered beneficiaries[30].

The purpose of re-socialization measures is to initiate and implement short-term or long-term social rehabilitation activities and training programs, as well as special programs in the field of combating the use of alcohol, drugs, psychotropic, highly active or toxic substances.

For this purpose, a separate program of re-socialization measures is developed, taking into account the specifics of the particular beneficiary.

In the above-mentioned provisions governing re-socialization, the issue of specific responsibility within the service for implementing the function is a matter of concern, as this function is not reserved for a specific group of employees or department, and the Law sets out generalized provisions in this regard, which can cause problems in practice.

The study shows that the service implements re-socialization measures on the basis of an individual program, in two stages: development and implementation. During the development phase, the risks and requirements of the probation beneficiary are assessed. The implementation phase includes the involvement of the probation beneficiary in educational, sports and cultural programs, as well as the implementation of psychological and employment activities[31].

At the legislative level, such a functional composition and scope of competence are sufficient to achieve the objectives of the service. In this regard, more attention should be paid to the intensity and scope of measures and activities aimed at re-socialization in practice and the necessary equipment, software and human resources, without which this goal will be merely declarative.

Electronic monitoring

The law also enables the application of electronic monitoring: in the pre-trial and trial stages, as an intervention combined with alternative precautionary measures and security measures; in the sentencing phase, as a means of monitoring combined with the execution of the sentence; in the post-sentencing phase[32]. In other words, the law provides for the possibility of electronic monitoring at all stages of criminal justice.

The law provides for the procedure, conditions, types and scope of electronic monitoring. In particular, when implementing electronic monitoring in the instances of: parole due to conditional commutation of a sentence, parole due to pregnancy or in the case of a woman with a child under three years of age, cases where the sentence has been commuted or suspended due to illness or emergency – the court at a minmum shall take into account the probation beneficiary’s:

  • data describing the person;
  • age;
  • health condition;
  • type of occupation;
  • existence of permanent residence;
  • marital status and the presence of persons under their care;
  • the nature of the offence and the degree of danger to the public.

According to the regulations, electronic monitoring is carried out using the Global Positioning System (GPS) or using radio, biometric, satellite or other technical devices and electronic programs, which enables determination of the location, movement and behavior of the probation beneficiary and the observance of court-sanctioned restrictions.

The equipment used is attached to the probation beneficiary or installed at the residence or location of the probationer and is used only for the period set out in the court decision.

As for the financing of the monitoring system, the legislator has set out a flexible mechanism, allowing the implementation costs to be covered at the expense of the state budget or the probation beneficiary. When making a decision, the court must take into account the person’s financial status, and in this regard the beneficiary’s lack of funds cannot be grounds for refusing the use of electronic monitoring.

These regulations which provide for the means to monitor are in themselves welcome, but they are not currently applicable due to the lack of related legislation, as already mentioned above. Once again, there is a situation when the law provides for a measure that is of a purely theoretical nature, as its application depends on the relevant legislation. Moreover, some issues, such as liability for failure of the electronic monitoring device, detailed methods and mechanisms of practical application, are missing from the regulations. The draft Criminal Procedure Code addresses electronic monitoring with two provisions: house arrest and administrative control[33]. There are no other regulations on this issue.

In Georgia, for example, the law clearly sets out the procedure for conducting electronic monitoring. The law also stipulates that if the monitoring equipment has been broken due to the fault of the beneficiary, the relevant compensation must be paid by the latter’s representative[34].

The above presentation permits one to state that, on the one hand, the legislative regulations are incomplete, which will force additional changes to be made soon after the adoption of the drafts, and on the other hand the related legislative provisions are not harmonized, and in such a situation the implementation of electronic monitoring will be result in a number of problems.

It should also be noted that the effective use of electronic monitoring depends in addition on some other factors, such as the correct calculation of costs and their management, types of monitoring equipment and how to acquire them (rent or purchase?), which is a practical issue and will be possible to evaluate after testing.

In this respect, the systems introduced and implemented in various countries show the importance of the risks identified above and their correct assessment, and only in such a case will it be possible to ensure effective application in practice.

In general, in European countries the state of electronic monitoring as a practical measure within the probation service and as an alternative measure of restraint is as follows:

 

Belgium Bulgaria Cyprus Czechia Denmark England Finland Latvia France Lithuania
Electronic monitoring √ √ √ √ √ √ √
Regulation by domestic legislation Probation measure/ alternative measure of restraint √
Method of probation supervision √ √ √
Method of imprisonment √ √ √ √

Probation service functions and legislation in the field of conciliation

In the Law on Probation, the legislature has also defined Probation Service powers at the conciliation stage. Thus, conciliation can occur at the trial stage, during the execution of non-custodial sentences, or at the post-punishment stage. It has been defined as the conduct of negotiations for the conciliation of the probation beneficiary and the victim (or their legal successor) through a probation officer appointed as mediator by the head of the service[35]. The interpretation of the norm allows one to conclude that any probation officer can act as a mediator, which is a bit problematic. First, the legislature has not set out specific requirements for the mediator, so even a person without proper training or skills could assume such an important function. In order to avoid unnecessary risks, it would be more appropriate to specify certain criteria for the selection of a specific employee/mediator.

At the trial stage, the power to initiate this procedure is vested in the court; in the execution of non-custodial sentences or in the post-trial stage the power is vested in the head of the Probation Service.

The law also defines the organization, time limits and end of the conciliation process. At first glance, such regulations should have been sufficient for the institution of conciliation to solve its problems, but again it is necessary to refer to the general legal regulations of the criminal justice system, in the context of which the institution of conciliation does not currently operate.

Thus, the current version of the Criminal Code does not contain provisions on conciliation. The Code merely provides that there can be release from criminal liability on the basis of reconciliation with the victim. “A person who has committed a minor crime can be absolved from criminal liability if he/she has reconciled with the victim and compensated or otherwise settled the damage caused to him/her.”[36]

It transpires that although the institute of conciliation is envisaged by law, once again it does not function due to the fact that it is not sufficiently regulated by the current criminal legislation.

As for the draft amendments to the Criminal Code, conciliation as such is not envisaged there. Article 87 of the draft provides for the release from criminal liability on the basis of reconciliation between the victim and the offender. This applies to the institution of exoneration from criminal liability, as a grounds for excluding criminal proceedings or prosecution, or in cases of private prosecution. In effect this regulation is not in line with the Probation Act provisions concerning conciliation. Moreover, the entity initiating and organizing the conciliation process and its status has not been clarified. In conclusion, the conciliation regulations set out in the Law have not been included in the related legislative acts and drafts.

Probation at the post-punishment stage

As already discussed, according to the legislative provisions, the service operates at different stages of criminal justice, including the post-punishment stage. This is explained by the fact that the performance of the functions of the Probation Service covers the period following serving of the sentence until the removal of the criminal record or its deletion in the manner prescribed by law.

An examination of the existing regulations shows that in the post-punishment phase, the powers of probation include conciliation initiated or mediated by the head of the probation service, as well as electronic monitoring. As already mentioned, neither of these is functioning yet, regardless of the legislative regulations. In other words, it is not possible to perform these functions in the post-punishment phase.

At the same time, it is necessary to pay attention to the preciseness of the legislative regulations at this stage. Specifically, the legislation does not set out how the Probation Service should operate in the post-punishment phase, especially in cases where the offender has served the entire period of the sentence imposed by a court decision and has been released in the prescribed manner. It is not specified on what basis  – and in particular how – in such situations a probation officer can carry out electronic monitoring, while the effectiveness of practical application depends on the clarity and predictability of the regulations, which is still a concern in this case.

Institutional status of probation

According to the action plan approved by the Decree No. NK-96-A of June 30, 2012 “On approving the 2012-2016 RA Legal-Judicial Reform Strategy and Action Plan”, the probation service was planned to be established within the RA Ministry of Justice, as a separate body independent of the penitentiary service.

This institutional status of the service was later confirmed by the Law on Probation adopted in 2016 and the internal charter of the service adopted in 2018[37].

In other words, the service was established as an independent body within the executive body. Such an arrangement is accepted in a number of countries and is distinguished by functional diversity.

The institutional set-up of probation varies in different countries. In a number of countries, such as Moldova[38], Romania[39], Finland[40], Denmark[41] and England[42], etc., the service is part of the executive, being either part of the justice system or another body.

There are countries where probation operates within the prison system. The best example of this is France[43]. The main feature is that in some stages of criminal justice, such as the pre-trial stage, the functions of probation are limited. There are also systems where the service is delegated to the private sector but operates with funding and oversight by the Ministry of Justice. Such a practice exists in the Netherlands[44].

Despite the differences in operating systems, the probation service is ultimately evaluated on the basis of the extent to which it effectively works to solve the tasks and objectives set. In this respect, acting as an independent body within the RA Ministry of Justice is an acceptable approach, but the guarantees of real functional independence, as well as the issues of supervision and funding, which play a significant role in ensuring efficiency, must be taken into account.

Funding for the Probation Service

One of the preconditions for the effective operation of probation is the existence of financial guarantees for the service, which must first of all have a clear legal basis.

A review of the legislation, however, shows once againvthat the regulations are flawed in this regard.

Thus, Article 53(3) of the Law stipulates that the Probation Service is financed from the state budget, as well as from other means not prohibited by the legislation of the Republic of Armenia.

There are no specific regulations on how the budget and the annual expenditure application are prepared, to whom they should be submitted, nor how they are approved.

According to the data available from the interactive budget of the RA Government for 2020, only 3,220,000 AMD[45], was allocated that year to improve the technical equipment of the Probation Service, moreover, it was under the heading of detention centers. Taking into account the number of offices of the service – Yerevan, regional and specialized – one can state that such a budget allocation is not sufficient to secure the technical equipment of the whole service, leading to practical problems.

Moreover, as the practical study shows, the financial application for the service’s expenses is submitted by the RA Ministry of Justice; the Probation Service does not have an independent function in this process.

A study of the experience of individual countries shows that in countries where the service is part of the executive, funding is provided through the Ministry of Justice[46]. There are countries – for example Bulgaria and Romania – where the budget for the service is separated from the prison system budget.

Despite the differences in existing systems and mechanisms, in each case it is necessary to establish sufficient legal arrangements for financing the service, to ensure the availability of reasonable allocations, and the service’s participation in decision-making.

Summary: main issues and challenges

Examination of the existing main and ancillary regulations of the current Probation Service enables identification, at the level of law, of the existing guarantees, main shortcomings and risks to the effective operation of the service.

In particular, first the concept of probation and later the Law was developed and adopted as an effective solution to the problems in the field, namely as a means of decreasing instances where the courts imposed unnecessary sentences of imprisonment or chose detention as a precautionary measure, as well as reducing overcrowding in penitentiaries. With the exception of the latter, these aims are in line with the acknowledged standards, purpose and role of probation. However, as later provisions show, there are still legislative gaps which could hamper the effective operation of the service.

Despite the fact that the law enables probation to be applied at all stages of criminal justice, in effect envisaging broad functions, these powers have not yet been implemented due to the lack of systemic and comprehensive legislation. For example, alternative precautionary measures are not applied due to gaps in the current criminal procedure legislation. The same concern applies to the application of security measures assigned to the Probation Service under the Law, as the current Criminal Code does not provide for such arrangements.

The study also raises some concerns about the regulation of the role of the Probation Service in the processes of conditional suspended sentences and parole. This in particular concerns the preparation and submission of reports, which should play a significant role in the process; this task is mandated by law to all employees, without specified criteria or requirements.

The issue of electronic monitoring and conciliation, which is defined by law but has not entered into force, is still a matter of great concern. In the case of electronic monitoring, the study of the current regulations reveals shortcomings related to its application on the one hand, and gaps in the Criminal Procedure Code on the other.

The legislative regulations on conciliation are more troubling because, on the one hand, the current criminal law does not provide for conciliation, and on the other hand, the institution of conciliation envisaged by the draft amendments to the Criminal Code is not in line with the relevant provisions of the Probation Law.

In conclusion, one can state that after the introduction of probation in the Republic of Armenia, no systemic, harmonising legislative amendments were made which would ensure the implementation of all the functions provided by law. In other words, although probation was adopted within the framework of the concept of restorative justice, the legislation and the system have not yet taken effective steps towards this concept, which has a negative impact on the effective functioning of the Probation Service.

Recommendations:

  • Specify that the Probation Service has an obligation to report substantively to the public on their service.
  • Take effective and immediate steps to ensure the practical applicability of alternative precautionary and security measures provided by law, by implementing the relevant amendments to the criminal and criminal procedural legislation.
  • Ensure the application of electronic monitoring by making comprehensive and harmonized legislative amendments in the criminal justice sector.
  • Harmonize the provisions concerning conciliation already adopted by law with the amendments to the draft Criminal Code.
  • Clarify by law the requirements for conciliators.
  • Make re-socialization measures for the probation beneficiary mandatory at the pre-trial stage.
  • In the Probation Law, clarify within the service the role and competencies of individual employees and departments as regards re-socialization activities.
  • Provide for a separate department, with suitably skilled and able staff, for the task of compiling reports to be presented in the parole process.
  • Clarify by law the use of the probation service in the post-punishment phase, envisaging the procedure, criteria and methods of selection and application of means in that phase.
  • For the more effective implementation of a number of powers assigned to the probation service by law, establish a separate fund within the service, which will provide opportunities for offenders in employment and work, education and other programs through effective cooperation and coordination.
  • Through legislation, regulate the issue of financing the Probation Service, to give the service the opportunity to participate directly in Ministry of Justice-National Assembly and Government-National Assembly relations in the issue of budgeting and allocation.
  • Clarify by law the limits and procedure of prosecutorial supervision over the service.

Abstract

The purpose of this research is to study the legislative framework by which the probation service in the Republic of Armenia is regulated, with the goal of identifying those gaps and shortcomings that hinder the effective functioning of the service. It also proposes priority directions for reforms, and, based on the conclusions, records the main factors hampering the service.

In connection with the processes of conditional suspension of the sentence and parole, the research also addresses certain concerns regarding the regulation of the role of probation service in the issues of electronic monitoring and conciliation – among other issues – which have been set out in law but not implemented. This allows us to state that since probation was introduced in Armenia, no systemic and relevant legislative changes have been made in the field of probation which would enable the implementation of all the functions provided by law.

This work is relevant and important, as, among other issues, it refers to the advanced experience of individual countries in the field, in addition to providing a number of suggestions aimed at the improvement of the probation sector in the Republic of Armenia and its systemic reforms.

Համառոտագիր

Սույն ուսումնասիրությունն ուղղված է Հայաստանի Հանրապետությունում պրոբացիայի ծառայության ոլորտը կարգավորող օրենսդրական դաշտի հետազոտությանը՝ նպատակ ունենալով վեր հանել ծառայության արդյունավետ գործունեությունը խաթարող բացերը և թերությունները, ստացված արդյունքների հիման վրա արձանագրել ծառայությունը խոչընդոտող հիմնական գործոնները և առաջարկել առաջնահերթ բարեփոխումների ուղղություններ:

Ուսումնասիրությունը ներկայացնում է նաև որոշ մտահոգություններ պատիժը պայմանականորեն չկիրառելու, պատիժը կրելուց պայմանական վաղաժամկետ ազատելու գործընթացում Պրոբացիայի ծառայության դերակատարման կարգավորումների, օրենքով սահմանված, սակայն կյանքի չկոչված էլեկտրոնային վերահսկողության ու հաշտարարության, այլ առկա խնդիրների վերաբերյալ, որը թույլ է տալիս արձանագրել, որ պրոբացիան ՀՀ-ում ներդնելուց ի վեր ոլորտում համակարգային և համապատասխան օրենսդրական փոփոխություններ չեն կատարվել, ինչը հնարավորություն կստեղծեր ապահովելու օրենքով նախատեսված բոլոր գործառույթների կատարումը:

Աշխատանքը հետաքրքիր և կարևոր է, քանի որ, ի թիվս այլ խնդիրների, անդրադառնում է առանձին երկրների՝ ոլորտի առաջադեմ փորձին, ինչպես նաև ներկայացնում է Հայաստանի Հանրապետությունում պրոբացիայի ոլորտի բարելավմանը և համակարգային բարեփոխմանն ուղղված առաջարկություններ։

 

«ԵՀՀ համալսարան» խորագրի ներքո պատրաստված այլ հրապարակումներ

Publications under the ‘EPF University’ headline

 

               

                                                                          

Ուսումնասիրությունը պատրաստել է «Հելսինկյան ասոցիացիա»  հասարակական կազմակերպությունը Եվրասիա համագործակցություն հիմնադրամի և «Իրավունքի ուժ» հասարակական կազմակերպության հետ համագործակցությամբ իրականացվող «Աջակցություն դատաիրավական բարեփոխումներին»  ծրագրի շրջանակներում: Ուղեցույցի բովանդակությունը և արտահայտված տեսակետները միմիայն «Հելսինկյան ասոցիացիա»  հասարակական կազմակերպությանն է և պարտադիր չէ, որ արտահայտեն  Եվրասիա համագործակցություն հիմնադրամի կամ «Իրավունքի ուժ» հասարակական կազմակերպության տեսակետները:

 

Պրոբացիայի ծառայությունը հայաստանի հանրապետությունում: Գործունեության օրենսդրական հիմքերն ու հիմնական մարտահրավերները․ մաս 1/ Հասմիկ Հարությունյան

Հելսինկյան ասոցիացիա, 2020 թ․, էջ- 30

 

Սույն հոդվածների ժողովածուն մաս է կազմում «ԵՀՀ համալսարան» խորագրի ներքո հրապարակվող ձեռնարկների շարքի՝ «Քաղաքացիական հասարակություն» (ՔՀ) թեմայով։ Շարքն ընդգրկում է զրույցներ չորս ծավալուն թեմաների վերաբերյալ.

 

  • Քննադատական մտածողություն (ՔՄ)
  • Պատերազմ և խաղաղություն (ՊԽ)
  • Քաղաքացիական հասարակություն (ՔՀ)
  • Կրթություն, պատմության մեթոդաբանություն, մշակույթ և արժեքներ (ԿՊՄՄԱ)

 

 

© Հելսինկյան ասոցիացիա, 2020

 

[1]RA Ministry of Justice probation service official website, 2020 http://probation.am/en/vichakagrutyun-hashvetvutyun

[2] RA Human Rights Defender, Extraordinary Public Report. Monitoring of the activity of the RA State Probation Service, 2018 https://www.ombuds.am/images/files/1592b28948bf827457fc37b3cf0a0357.pdf

[3] The RA 2019-2023 penitentiary and probation sector strategy and the 2019-2023 action plan, pp. 36-37, 2019. https://www.e-draft.am/projects/1829

[4] RA Government, Decision N 1717-L of November 28, 2019 on approving the 2019-2023 RA penitentiary and probation sector strategy and action plan, the financial evaluation of the program and the procedure for organising the formation and activities of the coordinating council to implement the program: http://www.irtek.am/views/act.aspx?aid=152278

[5] RA President Order #NK-96-A of June 30, 2012 on approving the 2012-2017 Strategy and Action Plan for RA legal and judicial reforms. http://www.irtek.am/views/act.aspx?aid=66316

[6] Concept on introduction of probation service in the Republic of Armenia, February 4, 2014 http://moj.am/legal/view/article/598

[7] RA Ministry of Justice, Decree No. 1561-N “Approving the operational procedure of the District Bodies of the Alternative Punishment Execution Division of the RA Ministry of Justice Penitentiary Department”, October 26, 2006

[8] See footnote #6

[9]The European Organization for Probation, CEP Statement on probation values and principles: https://www.cep-probation.org/wp-content/uploads/2018/09/CEP-Statement-on-Probation-Values-and-Principles.pdf

[10] Probation in Europe: https://www.cep-probation.org/knowledgebases/probation-in-europe/

[11] See footnote #6

[12] The RA Law on Probation was adopted on May 17, 2016. https://www.arlis.am/DocumentView.aspx?DocID=105914

[13] Council of Europe, Recommendation CM/Rec(2010)1 of the Committee of Ministers to member states on the Council of Europe Probation Rules, (Adopted by the Committee of Ministers on 20 January 2010 at the 1075th meeting of the Ministers’ Deputies), 2010։ https://www.pmscr.cz/download/mezdoken_European_Probation_Rules.pdf

 

[14] Fergus McNeill University of Glasgow (UK), What is the impact of probation on reducing re-offending and supporting desistance? https://www.cep-probation.org/probation-works/

[15] UN Interregional Crime and Justice Research Institute: Handbook on Probation Services:

http://www.unicri.it/services/library_documentation/publications/unicri_series/Probation_handbook.pdf

[16] United Nations, UN Standard Minimum Rules for Non-custodial Measures, GA Resolution 45/110, 2. The Scope of non-custodial measures: https://www.ohchr.org/Documents/ProfessionalInterest/tokyorules.pdf

[17] RA Law on Probation, Article 12, Clause 12, was adopted on May 17, 2016. https://www.arlis.am/DocumentView.aspx?DocID=105914

[18] Ibid., Article 13

[19] Draft RA Criminal Procedure Code https://www.e-draft.am/projects/2085/justification

[20] Ibid., Articles 123-130

[21] RA Ministry of Justice Probation Service, response to the inquiry submitted by letter No. 101-332, Annex 1

[22]Probation measures and alternative sanctions in the EU: https://www.euprobationproject.eu/compare.php

[23] Parliament of Georgia, Law of Georgia on the “Procedure for enforcing non-custodial sentences and probation”, 19/06/2007։ https://matsne.gov.ge/en/document/view/21610?impose=translateRu&publication=26

[24] Draft Criminal Code, Article 116

[25] RA Minister of Justice decree N 336-L of July 12, 2018, approving the procedure for preparing reports by the RA Ministry of Justice penitentiary and probation services on parole and on replacing the unserved part of the sentence with a milder type of punishment, and approving the standard form of documents to be presented concerning parole and replacing the unserved part of the sentence with a milder type of punishment: http://probation.am/sites/default/files/hashvetvutyunner/336L_Hraman.pdf

[26] More detailed information on the reports and an analysis of existing risks and problems will be provided when the second, practical phase of the study has been summarised.

[27] RA Criminal Code, Article 77

[28] See footnote #2, page 97

[29] UN Interregional Crime and Justice Research Institute, Handbook on Probation Services: http://www.unicri.it/services/library_documentation/publications/unicri_series/Probation_handbook.pdf

[30] RA Law on Probation Service, Article 28

[31] Official information provided by the Probation Service, letter No. E/p-1-92

[32] See footnote #30, article 41

[33] Draft Criminal Procedure Code, Articles 123-124

[34] Parliament of Georgia, Law of Georgia on the procedure for enforcing non-custodial sentences and probation, Procedure for enforcing House arrest sentences, article 44

[35] Article 29 of the Law

[36] RA Criminal Code, Article 73

[37] RA Government, on approving the internal regulations of the State Probation Service of the RA Ministry of Justice, and repealing decision # 1561 of the RA Government of October 26, 2006

[38] Ministry of Justice of Republic of Moldova, Probation Divison:   http://probatiune.gov.md/?new_language=0&go=page&p=123

[39]Ministry of Justice of Romania, National Probation Directorate: http://www.just.ro/en/directia-nationala-de-probatiune/

[40] Criminal Sanctions Agency of Finland: https://www.rikosseuraamus.fi/en/index/criminalsanctionsagency.html

[41] Prison and Probation Service in Denmark: https://www.justitsministeriet.dk/generelt/english/justice-system

[42] Prison and Probation Servide in United Kingdom: https://www.gov.uk/government/organisations/her-majestys-prison-and-probation-service

[43] Direction de l’administration pénitentiaire: http://www.justice.gouv.fr/le-ministere-de-la-justice-10017/direction-de-ladministration-penitentiaire-10025/

[44] Ministry of Justice and Security, Netherlands: https://www.government.nl/ministries/ministry-of-justice-and-security

[45] Interactive budget, 2020 https://www.e-gov.am/interactive-budget/

[46]Anton van Kalmthout and Ioan Durnescu, European Probation Service Systems, a comparative overview, 2008

 

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