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Секция 16. Юриспруденция
Section 16. Science of law Секция 16. Юриспруденция
Dzhansarayeva Rima Yerenatovna, Al-Farabi Kazakh National University, Head of the Department of Criminal Law, Criminal Process and Criminalistics, Doctor of Legal Sciences, Professor E-mail: jansarayeva@mail.ru
A problem of a high rate of «prison population» in Kazakhstan and measures for its reduction
Abstract: The article analyses the reasons of growth of the convicted prisoners in the correctional institutions of Kazakhstan and considers the measures for reduction of the «prison population» rate.
Keywords: penal system, correctional institution, a convicted, «prison population»
In recent decades the tendency to expand the sphere of criminal control has dominated world-wide and a considerable concentration of the population of the countries in prisons has been observed. The overpopulation of prisons that had become a typical problem was viewed as internal national issue unrelated to the international image of the state. Consequently, there was realization that high, from the international point of view, share of the prisoners in the population was a problem related to the international image of the country. The attempts to justify the share of «prison» population as an evidence of effective «protection of the society» by the criminal justice system as a result of its determination and severity occur less often.
A considerable number of prisoners serve their term yearly in the correctional institutions in the Republic of Kazakhstan. Historically, Kazakhstan was the center of correctional and labor colonies of the USSR, which was related to the clearing, forced migration and performed policy of repressions. If700 thousand people were serving their term in early 90s in the former USSR, 100 thousand people or every seventh man was in a colony located in Kazakhstan. The consequences of such policy: 450 thousand people or every 35th Kazakhstan citizen, every 18th of aged
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18 to 50, every 9th man in one generation was in the colony from 1975 to 2000. Every 9th family has a former prisoner. If one adds dozens of thousands people who were subject to other kinds of punishment and went through occupational therapy rehabilitation centers where the conditions of stay and customs were similar to prison, the picture becomes more ominous [1]. At the beginning of independence (1991) Kazakhstan took the third place after the USA and Russia in the number of «prison population». During five years from 1991 to 1996 the number of prisoners grew from 55633 to 94885, i. e. by 41 %.
The major reasons of «prison population» growth during this period chiefly includes social and economic depression determined by the collapse ofthe USSR, growth of crime rate — the number of registered crimes increased by 16 % from 173 thousand to 206 thousand, as well as removal of probation institutions (article 23-2 of the Criminal Code of Kazakh SSR) and compulsory labor punishment (article 46-2 of the Criminal Code of the Kazakh SSR) from the criminal legislation in 1993.
At the end of 90s the number of prisoners was reduced to 80350 people due to two amnesties.
With the introduction of a new Criminal Code of the Republic of Kazakhstan in 1998, the number of prisoners in 2001 increased up to 88421 people or by 8 %. The main reasons were the following:
- increase of top limits of sanctions (maximal imprisonment period was increased from 15 to 30 years);
- classification of crimes into 4 categories (petty crimes, medium gravity crimes, grave offences and especially grave crimes), whereas the Criminal Code ofthe Kazakh SSR defined only two categories (grave offences and other crimes);
- implementation of rules of punishment assignment taking into account the backslide of crimes.
By 2002 «prison population» was close to 90 thousand, which preserved the 3rd place for Kazakhstan in the international rating. The law of humanization as of 2002 mitigated the sanctions of some articles of the Criminal Code and reduced the period of release on parole (hereinafter — ROP), which contributed to reduction of «prison population» till 2007 by 43 % (from 89 to 51 thousand). During 2003 over 30 thousand people were released on parole from correctional institutions and total number of prisoners reduced from 76 to 57 thousand. However, this law also had a short-term effect as further pace of reduction of «prison population» slowed down sharply: in 2004 by 4980 people and in 2005 by 540 people only.
Under such dynamics the growth of number of prisoners in the correctional institutions of the state was expected in 2006. However, the sixth amnesty since 1991 played its role. 3626 people were released and the punishment period for 1406 people was shortened.
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But this measure also had a short-term effect. Next three years were characterized by a stable growth of «prison population»: in 2007 by 4500, in 2008 by 2700 and in 2009 by 4700 people. In total, «prison population» increased again by 23 % (from 51 to 63 thousand) from 2007 to 2010, which was determined by the following reasons:
- the potential of earlier accepted amendments on humanization was exhausted and realized;
- absence of amnesty acts that relieved the correctional institutions for a short period of time;
- re-orientation of the criminal policy of the state towards the reinforcement of criminal responsibility and punishment;
- acceptance of the law as of 26.03.2007, which toughened the requirements for release on parole (ROP): prohibition on release on parole for people who already had ROP, compulsory notice of the victim’s opinion etc.
Since 2010 another process of humanization initiated by the head of the state in his address to the people of Kazakhstan made on January 29, 2010 has been on. The number of the convicted reduced by 50 %, from 18790 to 9313 people, from 2009 to 2012. Over the last three years the expansion of implementation of punishments alternative to imprisonment, ability to address courts with the issues of release on parole avoiding the commissions at the administrations of correctional institutions have contributed to reduction of «prison population» by 15 thousand people, from 62997 to 48684.
According to the information from the International center of prison research, Kazakhstan shifted from the 13th place taken in 2009 to the 22nd place in 2010 in terms of the rate of «prison population». As ofJanuary 1, 2013 Kazakhstan takes the 35th place with the prison rate of 295, which is two times more than the indicators of the European countries and remains high, for instance, among the former republics of the USSR and the highest in the Central Asia.
As it has already been mentioned, the rate of «prison population» was 475 (November, 2013) in the Russian Federation, for example, 335 in Belarus (October, 2012), 329 in Lithuania (January, 2013), 304 in Latvia (January, 2013), 288 in Ukraine (November, 2013), 226 in Azerbaijan (September, 2012), 224 in Turkmenistan (2006), 231 in Estonia (December, 2013), 200 in Georgia (September, 2013), 187 in Moldavia (October, 2013), 181 in Kirgizia (January, 2012), 160 in Armenia (May, 2013), 152 in Uzbekistan (March, 2012), 121 in Tajikistan (2010) [2].
Currently, the growth of «prison population» in Kazakhstan by 3 % (01.07.201248 408, 01.07.2013-49 888) is observed. The structure of «prison population» is changing. Thus, if earlier people who committed petty and medium gravity crimes were mainly kept at the colonies, today 95 % of people are convicted for grave offences and especially grave crimes; 18 thousand or 42 % served prison terms two or more times. Similar tendency is typical for penitentiary institutions abroad, where a significant
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share falls for people convicted of murder, rapes and other sexual crimes, robbery, attacks and other forms of criminal violence [3, 332-334].
The formed situation cannot but cause anxiety. One cannot deny that isolation from the society as a measure of criminal punishment leads to some criminal social consequences. Thus, restrictions related to isolation can slow down and even deteriorate positive social and psychological adaptation and, on the contrary, strengthen the relations of a man with negative minor groups at correctional institutions and their negative rules and standards. An imprisoned person is detached from the relatives, immediate family, regular activities etc. if their anti-social orientations and goals are not very spoiled before they go to prison, there they can firm up and become a constant drive in the behavior and image.
People kept in prisons are of the same sex, which significantly increases emotional tension in an individual in such untypical environment and it has nothing to do with physiohormonal reasons: the very absence of the other sex (men or women) roughens the morals, makes the needs primitive, people start feeling that there is nobody who can like them and they stop taking esthetic care of themselves. In majority of cases, those who serve terms at correctional institutions are deprived of the ability (or the ability is very limited) to enhance the level of their education professional qualifications. The education that prisoners get at correctional institutions is of lower quality. The environment at correctional institutions can be viewed as aggressive and hostile; a person is always afraid of being abused, offended, beaten, exiled out of the habitual circle. Expecting violence, people are constantly tensed, alarmed; they can resort to violence on their own as a way to protect themselves from real or potential danger. As a whole, aggressive attitude towards those around them is formed; there is constant readiness to give battle. Correctional institutions are main carriers and keepers of those anti-social rules and norms, which are usually considered as criminal or thievish. In this respect, even criminal organizations of mafia type cannot be compared with prison environment, namely, its elite part. The former have daily contact with positive social (law-abiding) environment and are affected by it, even if they don’t want it. Penitentiary environment is objectively deprived of this effect because of its closed nature.
Against the background of negative tendencies in the change of qualitative and quantitative composition of the convicted, danger of crisis situations and quite high latency of offences committed at correctional institutions, criminal processes in the prison environment take more and more organized forms.
One cannot deny negative economic consequences of imprisonment. Hence, over the ten years the expenses on penitentiary system increased by 4,5 times reaching 47,5 billion tenge in 2013. The state spends 613 thousand tenge on one prisoner yearly. In this regard, the instruction of the head of the state to take Kazakhstan out of 50 countries leading in the number of «prison population» by 2017 has paramount importance. The General Prosecutor office of the Republic of Kazakhstan to-
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gether with the Supreme Court and the Ministry of Internal Affairs developed the Concept of the project «Ten measures to reduce «prison population».
Main reasons of the high rate of «prison population» in Kazakhstan defined in the Concept are as follows:
- drawbacks in the sphere of preventive work, particularly, imperfection of legislation aimed at prevention of crimes and law application practice in this area;
- severity of criminal law that stipulates big terms and lack of punishment alternative to imprisonment; excessive severity of punishment against the backslide of crimes and illegal turnover of drugs without an intention to sell it;
- insufficient application of measures of prevention alternative to arrest, which remains one of the main and often applicable prevention measure;
- insufficient use of potential of the institution of freedom from punishment due to compromise between the parties, which is determined by the aspiration of investigation bodies to ensure high percent of «sending cases to courts»; options of the mentioned bodies when terminating a criminal case in the event of compromise; absence of precise regulation of procedure of compromise and its procedural documentation; ignorance of the participant of the process regarding the advantages, order and consequences of compromise; as well as unlimited period for cancellation of decisions of the investigation bodies on compromise;
- obstacles for wide use of release on parole that is expressed in the prohibition of its application towards separate categories of the convicted; taking into account the opinion of the victim and measures taken to compensate for the damage caused by a crime; non-application of other opportunities of release on parole;
- limitations in the application of replacement of punishment with a softer type determined by same terms for application of release on parole and replacement; nonapplication of replacement towards the convicted for especially grave crimes;
- spread of prison sub-culture, which is supported by barracks-like stay of prisoners, 50 to 100 people in one premises; low labor activity; non-effective individual educational work; non-readiness of prisoners for release;
- drawbacks of preventive work during post-penitentiary period, which are expressed in the absence of centers of social adaptation and rehabilitation; absence of probation control and electronic monitoring of people released on parole and those under administrative supervision; employment problems after release from prison;
- listing of penal settlement colonies as prisons during the formation of international rating of «prison population» and people kept at penal settlement colonies when defining the rate of «criminal population».
The project «Ten measures to reduce «prison population» is aimed at combating main reasons of high rate of «prison population» and achieving the main goal to take Kazakhstan out of 50 countries leading in the number of «prison population» by 2017.
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References:
1. See: performance of ex-chairman of the Committee of penal system of the Ministry of Internal Affairs of the Republic of Kazakhstan Posmakov P. N., Moscow, 2001.
2. Data from the International center of prison research URL: http://www.prison-studies.org/info/worldbrief/(access date: December 15, 2013)
3. Barton K. Psychology of criminal behavior. - SPb.: Prime. - EVROZNAK. - 2004.
Zhuravlev Dmitry Vladimirovych, PhD of law sciences, Associate Professor, Deputy Director of the Department of notaries, financial monitoring of legal services and bar associations, the Ministry of Justice of Ukraine E-mail: dmitro.zhuravlov@mail.ru
On the forms of the activity of central executive bodies of Ukraine
Abstract: The article analyzes the nature and significance offorms ofactivity ofcentral executive bodies of Ukraine. Given their authors definition and revealed the content.
Keywords: executive authorities, legal forms, organizational forms.
Журавлев Дмитрий Владимирович, кандидат юридических наук, доцент, заместитель директора Департамента нотариата, финансового мониторинга юридических услуг и адвокатских объединений, Министерство юстиции Украины
E-mail: dmitro.zhuravlov@mail.ru
Относительно форм деятельности центральных органов исполнительной власти Украины
Аннотация: В статье проанализированы сущность и значение форм деятельности центральных органов исполнительной власти Украины. Предоставлено их авторское определение и раскрыто содержание.
Ключевые слова: органы исполнительной власти, правовые формы, организационные формы.
На сегодня перед нашим государством наступила объективная необходимость переосмысления на методологическом уровне общих проблем формирования и осуществления государственной политики во всех сферах общественной
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