Does Article 441 of the Criminal Code implement its function in penal colonies?
Article 441 of the
Criminal Code of the Republic
of Belarus, “Malignant
insubordination to the administration of the correctional facility which
executes the punishment in the form of deprivation of liberty” is a reliable
means to exercise pressure and “re-educate” prisoners, used by the
administration of the Belarusian penal colonies. However, does this article really implement
the functions which were given to it by the legislators?
Holding a monitoring of the penitentiary system, the Human Rights Center “Viasna” often receives letters, in which prisoners draw concrete cases of the use of this criminal article and share their thought concerning the need for such an article in the present edition.
The views of a prisoner serving his term in the Ivatsevichy colony, seem to be quite reasonable:
“To my mind, there is sense in building up the advocacy of elimination of Article 441 on the basis of such concept of the liberal-critical direction of criminology as stigmatization [social labeling – ed.].
According to the stereotypes of the correctional system of Belarus, Article 441 allegedly combats thievish ideology, thus implementing the tasks of struggle against organized crime. It is evident that advocates of such an idea haven't approached the problem professionally.
According to the stigmatization theory, criminal behavior becomes such as a result of “branding” of a person by the criminal justice system. Firstly, the form which chosen in conformity with the sanctions which were chosen by the state, provokes a defensive reaction of prisoners who try to save their reputation and identity either by resistance or, on the contrary, by sinking to the bottom, submitting to the act of stigmatization. Secondly, it allows finding opportunities for a delinquent career [for instance, lords of the underworld – ed.]. Don't advocates of Article 441 of the CC and other similar instructions know about it?
Here is an eloquent example: an officer of military counter-intelligence temporary implemented the functions of the head of the quarantine department in Ivatsevichy colony #5 to which I was transferred in 2000. According to the received instructions, he was prohibited to sign papers for directing those who refused to sign the undertaking to mend their ways, to prison brigades. As a rule, such people are put into penal isolators instead of it.
He was really embarrassed to see that, being kept in the quarantine department, some prisoners with a law status refused to sign such undertakings on a par with representatives of underworld”. “What will change in their life after this?”, he asked. “Will they be respected like real gangsters?”
Even this example witnesses that the conditions which are created in the colonies make even these prisoners show a real male character, because their self-esteem depends on this choice. In this case conviction under Article 441 provides a certain respect for a prisoner, because there is compulsion and resistance to it.
In civilized countries, there are no conditions for delinquent careers based on anti-social and wrongful behavior. Even the criminal legislation of the Russian Federation doesn't have an analogical article.”
These arguments of the prisoner give a certain idea about the way the system of “re-education”, grounded on the use of Article 441 of the Criminal Code (which is often used for moral pressurization and persecution of the leaders and activists of the opposition who are kept in prison) really works.
It's worth mentioning that in Belarus Article 441 is mainly used towards the prisoners whose personal views prevent them from implementing the orders of the administration of the corrective facilities aimed at humiliation and lowering of one's status. Many of them insist on their innocence and consider their imprisonment to be unlawful.
Article 441 of the Criminal Code of the Republic of Belarus:
“Malignant insubordination to lawful demands of the administration of the corrective institution which executes a penalty in the form of deprivation of liberty, or other counteraction to the implementation of functions by the administration, by a person who serves penalty in the form of deprivation of liberty is punished by deprivation of liberty for up to one year in the case this person has received disciplinary penalties in the form of transfer to a cell-type facility, a special ward, one-man cell or a prison (malignant insubordination to lawful demands of the administration of the corrective institution which executes a penalty in the form of deprivation of liberty) within a year.
Malignant insubordination to lawful demands of the administration of the corrective institution which executes a penalty in the form of deprivation of liberty, by a person who committed an especially hard felony or an especially dangerous repeated crime – is punished by up to two years of deprivation of liberty.”