Pavel Sapelka on preventive supervision: "It is not the crime that is punished, but the reluctance to demonstrate loyalty to police requirements"

2013 2013-08-21T16:36:41+0300 1970-01-01T03:00:00+0300 en The Human Rights Center “Viasna” The Human Rights Center “Viasna”
The Human Rights Center “Viasna”
Pavel Sapelka

Pavel Sapelka

For jurisprudence, of prime significance is the challenge of providing post-penitentiary adaptation of convicts and preventing repeated crimes. In the absence of a consistent government policy for the re-socialization and social integration of those who are released after serving their sentence in prison, they face social and psychological degradation, resulting in possible increase in repeated crimes.

Post-penitentiary adaptation of convicts should be preventive, rehabilitative and restorative in nature and be aimed at the socio-economic, cultural, ethical, legal, and psychological well-being. International experience has shown the feasibility of creating solutions for these problems through a special state probation authority, whose main goal is to promote the social reintegration of persons who have served their sentence, whether or not linked with isolation from society (rehabilitation of social connections, amenities, labor, providing psychological support, etc.), and to prevent repetition of offences. This approach reduces the overall level of crime (including recurrent) in society, prevents the criminalization of the individual, reduces the burden on the prison system and contributes to the goals of punishment. These services are generally not part of the police or penitentiary systems, and report directly to the Ministry of Justice.

One of the forms of control over the prisoners who were freed is administrative supervision, i.e. supervision that is established to prevent the commission of crimes and other offenses by a person released from prison, in order to comply with the temporary restrictions of the rights and freedoms established by the court, as well as to force them carry out certain responsibilities.

In Belarus, such supervision is called preventive since 2000, and is determined in accordance with Article 80 of the Criminal Code for persons who have committed particularly dangerous crime relapse; convicted of an offense committed by an organized group or criminal organization. After release from prison preventive supervision may be set for a person under eighteen years of age, who was convicted of committing a grave or especially grave crime, or convicted two or more times to a sentence of imprisonment for any deliberate offense if, in accordance with the laws Republic of Belarus, at the time of his release from prison he was recognized violator of the established order of serving the sentence; for a person under eighteen years of age, who was convicted of committing a grave or especially grave crime, or convicted two or more times to a sentence of imprisonment for any premeditated crimes if after serving a sentence of imprisonment he has been for more than two times during the year brought to administrative responsibility for administrative offenses for which the law provides an administrative penalty in the form of administrative arrest.

The purpose of preventive supervision is observation of the behavior of such individuals, prevention of crimes and exerting the necessary preventive action on them.

Establishment, renewal, suspension, resumption and termination of preventive supervision and the changing of requirements of preventive supervision are enforced by the court.

The court orders a person under preventive supervision to observe the following preventive supervision requirements: arrive on time to the chosen place of residence and register with the local Interior authority; notify the body of internal affairs on the change the place of work and (or) residence; travel outside the district (the city) on official and personal business only with the agreement of the Interior authority. In establishing preventive supervision or in its implementation, the court may order the person under preventive supervision to observe the following preventive supervision requirements: not to go to certain places; not to leave one’s home at a certain time; arrive at the body of internal affairs for registration one to four times a month; not to leave the Republic of Belarus.

In accordance with Article 421 of the Criminal Code, violation of preventive supervision without good reason by a person who twice a year has been subjected to administrative penalties for the same offenses, is punishable by arrest for up to six months or imprisonment for up to one year. In accordance with Article 422 of the Criminal Code, failure to observe preventive supervision requirements - failure to arrive without good reason in due time to the chosen place of residence, or leaving the district (the city) without the consent of the authority of the Interior, or a change in the place of residence within the district (the city) without notifying the Interior authority, or travelling outside the Republic of Belarus, committed to evade preventive supervision, shall be punished by imprisonment for a term not exceeding two years.

Even the most superficial speculations about the legality of criminalization of non-compliance with the rules of preventive supervision lead to doubts about its validity. All of the above limitations are appropriate when various alternatives to imprisonment are meant - probation, parole and other types of restrictions instead of prison. However, the law speaks about those who have served the full term of imprisonment upon conviction for an offense committed by him earlier. Under criminal law, the penalty is a coercive measure applied by a court to a person convicted of a crime and constitutes deprivation or restriction of the rights and freedoms of the convicted person (Article 47 of the Criminal Code). The list of penalties is contained in Article 48 of the Criminal Code, and preventive supervision is not in the number of penalties provided. Criminal liability is realized in the sentencing with the use of the ordered punishment, with the postponement of execution of the sentence, probation of the sentence, or without imposing punishment. Thus, preventive supervision is imposed on persons in respect of whom criminal liability has been already fully implemented.

Thus, Articles 421 and 422 of the Criminal Code of Belarus punish, in fact, not a crime in the conventional meaning of a socially dangerous act, but refusal to obey the restrictions imposed on formal grounds and the reluctance to demonstrate loyalty to police requirements. That is, the person is actually subjected to punishment before being “corrected." In general, the law may restrict individual rights only up to certain limits, otherwise it runs the risk of conflict with human rights. The wording of the crime as a socially dangerous act committed by the perpetrator (action or inaction), which is characterized by what is stipulated in the Criminal Code and banned under the threat of punishment, does not negate the generally accepted position that the restriction of the right must be based on the law, pursue a legitimate aim and be necessary in a democratic society. Moreover, the interference must be proportionate to the stated objectives and may not lead to greater restrictions of socially significant interests. For example, the Soviet Union’s law criminalized anti-Soviet campaigning and propaganda (Article 67 of the Criminal Code of the Byelorussian SSR) and participation in an anti-Soviet organization (Article 69 of the Criminal Code of the Byelorussian SSR) as especially dangerous state crimes. On the basis of the law of 1933, the Nazi Germany banned the existence of any kind any political parties except the Nazi and its controlled organizations. Therefore a ban or a duty imposed by law itself may be illegal or at least questionable. Violation of these laws cannot be punished in democratic countries that recognize the basic standards of human rights.

The validity of restrictions on persons released from prison after serving their sentences is controversial, but such is the practice in many countries. However, violation of preventive supervision rules is not criminalized in democratic countries. Resolution "Practical organisation of measures for the supervision and after-care of conditionally sentenced or conditionally released offenders" by the Committee of Ministers of the Council of Europe stressed the importance of the effectiveness of measures of non-punitive impact, drawing attention to the desirability of avoiding the application of the penalty of deprivation of liberty whenever possible, as well as the feasibility of developing the most appropriate legal structure and the most effective services and methods of and non-punitive impact on the prisoners. This approach, however, can help preserve recidivism rates in the EU countries at 25%, whereas Belarus shows 45-48% and more in the recent years. Violations of preventive supervision is not criminalized in Russia, either (there, it is evading administrative supervision that is a criminal offense – failure to arrive without a good reason to the specified place of residence or within a particular period established by the administration of the correctional facility, as well as leaving without agreement the residence committed in order to evade administrative supervision).

The result of such a specific concern for the inmates released from prisons in Belarus is the ongoing growth of recidivism against the increase in the number of persons subjected to preventive supervision and the number of those convicted of evasion of preventive supervision and failure to comply with its requirements (934 persons in 2012).

It should be recalled that there is an administrative responsibility for the said violations. By the way, in my opinion, it is the most rational measure of coercion of a person subjected to preventive supervision to law-abiding behavior (in 2012, 5,788 such penalties were imposed, or by 57.7% more than in 2011).

However, even the most perfect system of control over the post-penitentiary behavior of convicts cannot replace a set of measures of re-socialization, which should begin well before the inmate leaves the correctional institution. A balanced approach to providing the former convict with well-paid work, vocational training, preservation and cultivation of useful social connections, a leave to find work and housing to “reformed” prisoners in the last stages of imprisonment - this is not an exhaustive list of mandatory measures. Prisoners, especially after long periods of detention, must not see a government monitoring as a new warden but an assistant in the world that has changed during the period of stay in prison.

Pavel Sapelka, exclusively for