Promoting the Use of Non-Custodial Sanctions in Armenia, Azerbaijan and Georgia
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Promoting the Use of Non-custodial Sanctions in Armenia, Azerbaijan and Georgia Synthesis Research Report Tbilisi 2015 The Synthesis Research Report has been produced by Penal Reform International (PRI). The Report is based on research findings undertaken in South Caucasus countries to provide information on the existing situation with regard to current criminal justice policy, legislation and practice in terms of sentencing, use of imprisonment and alternative sanctions, mediation and diversion, length of custodial sanctions and their appropriateness, statistics, operation of parole boards and tackling criminal justice reform problems. The report was written by Mr. Martin Seddon, with inputs from country based experts: Anna Melikyan (Armenia), Ramil Iskandarli (Azerbaijan) and Lali Chkhetia (Georgia). This report has been produced within the framework of Penal Reform International’s project “Promoting the Use of Non-custodial Sanctions in Armenia, Azerbaijan and Georgia”, with the financial assistance of the United Nations Democracy Fund (UNDEF). The contents of this document are the sole responsibility of Penal Reform International and can in no circumstances be regarded as reflecting the position of UN Democracy Fund. 1 PENAL REFORM INTERNATIONAL Promoting the use of non-custodial sanctions in Armenia, Azerbaijan and Georgia INTRODUCTION Most countries are struggling to develop penal systems that combine justice for victims, safety for the public and rehabilitation for offenders. Increasingly the main challenges are to find effective ways to avoid unnecessarily holding mid-range offenders in prison while they wait for their trial; to develop community-based sanctions that will be a better alternative to prison sentences for these offenders; and to make better use of early release schemes if prison is inevitable. This report is part of a project that aims to increase further the use of these non-custodial approaches to the management of offenders in the three South Caucasus countries. It comments on the issues from three points of view: international approaches; the situation in each country; and recommendations for possible improvements. Statistical information for international comparisons has been averaged from data published by the Council of Europe (CoE)1 or the Confederation of European Probation (CEP). Scotland, Ireland and Austria were chosen for comparison. The project “Promoting the Use of Non-custodial Sanctions in Armenia, Azerbaijan and Georgia” is funded by the United Nations Democracy Fund (UNDEF) and is being implemented by Penal Reform International (PRI). Support from the UNDEF has allowed PRI to provide some additional services to strengthen the delivery of alternative sanctions in the three countries of the South Caucasus. These have included organising working group meetings that bring together civil society representatives and academics; roundtable meetings for key stakeholders; regional conferences; training for probation staff; study visits to Georgia; production of items for the print and broadcast media; training for female and juvenile probationers; and commissioning proposals from law students. PRI is grateful for information and advice received from many organisations and individuals in the preparation of this report. In particular, we received invaluable help from associates in each of the three countries. Although it has not been possible to get comprehensive information for each of these countries we trust that the picture we present does justice to the achievements and enables further developments to be considered. PRI Office South Caucasus Region Tbilisi, November 2015 1 European Probation Service Systems: a comparative overview by Anton M. van Kalmthout and Ioan Durnescu 2 Contents 1. INTERNATIONAL APPROACHES 7 Community Sanctions and Measures 7 1.1 Alternatives to Pre-Trial Detention 8 1.2 Diversion from Prosecution 8 1.3 Pre-Sentence Report 9 1.4 Basic Probation Order 10 1.5 Community Service 11 1.6 Social Training Courses for Offenders 12 1.7 Restriction of Freedom 12 1.8 Parole 13 1.9 Further considerations 13 ORGANISATIONAL FEATURES NECESSARY TO DELIVER ALTERNATIVE SANCTIONS 14 1.10 Accountability of the Probation Agency 14 1.11 Capacity to Deliver Alternative Sanctions 14 1.12 Types of Staff Required 15 1.13 Management of Alternative Sanctions Services 15 1.14 Logistics 15 1.15 Partner Organisations 16 THE STRATEGIC OPERATING ENVIRONMENT 17 1.16 Government Policies 17 1.17 Leadership of the Justice Sector 18 1.18 Support from Donors 18 1.19 Transparency 19 2. THE CURRENT SITUATION IN GEORGIA 20 2.1 Methods in Georgia that are alternatives to Pre-Trial Detention 20 2.2 Diversion from Court Proceedings 22 3 2.3 Pre-Sentence Reports 23 2.4 Basic Probation Order 24 2.5 Community Service in Georgia 27 2.6 Social Training Courses 29 2.7 Restriction of Freedom 30 2.8 Parole 32 2.9 Further Considerations 36 ORGANISATIONAL FEATURES OF ALTERNATIVE SANCTIONS IN GEORGIA 37 2.10 Accountability of the Probation Agency in Georgia 37 2.11 Capacity to Deliver Services 37 2.12 Types of Staff in the Probation Agency in Georgia 38 2.13 Management of the Alternative Sanctions Division 38 2.14 Agency Logistics in Georgia 38 2.15 Partner Organisations 39 STRATEGIC OPERATING ENVIRONMENT IN GEORGIA 40 2.16 Policy commitment by the Government of Georgia 40 2.17 Leadership in the Justice Sector in Georgia 42 2.18 Support from Donors 42 2.19 Transparency of Penal Services in Georgia 43 3. THE CURRENT SITUATION IN ARMENIA 44 3.1 Alternatives to Pre-Trial Detention 44 3.2 Diversion 47 3.3 Pre-Sentence Reports 50 3.4 Basic Probation 52 3.5 Community Service 56 3.6 Social Training Courses 59 3.7 Restriction of Freedom 62 3.8 Parole 63 4 3.9 FURTHER CONSIDERATIONS 69 ORGANISATIONAL FEATURES OF ALTERNATIVE SANCTIONS IN ARMENIA 70 3.10 Situation in Armenia 70 3.11 Capacity to Deliver Alternative Sanctions 70 3.12 Types of Staff 71 3.13 Management of Alternative Sanctions Services 71 3.14 LOGISTICS 71 3.15 Partner Organisations 72 STRATEGIC OPERATING ENVIRONMENT IN ARMENIA 73 3.16 Policy Commitment by the Government of Armenia 73 3.17 Leadership of the Justice Sector 74 3.18 Support from Donors 74 3.19 TRANSPARENCY 76 4. THE CURRENT SITUATION IN AZERBAIJAN 78 4.1 Pre-Trial Detention 78 4.2 Diversion from Court Proceedings in Azerbaijan 82 4.3 BASIC PROBATION ORDER 86 4.4 COMMUNITY SERVICE (KNOWN AS ‘PUBLIC WORKS’) 89 4.5 Offending Behaviour Programmes 91 4.6 Restriction of Freedom 92 4.7 PAROLE 92 5. PROPOSALS FOR DEVELOPING SERVICES 97 5.1 Developing Alternatives to Pre-Trial Detention 97 5.2 Developing Diversion Schemes 99 5.3 Introducing Pre-Sentence Reports 99 5.4 Introducing Probation 100 5.5 Proposals for Introducing Community Service 102 5.6 Developing Social Training Courses 103 5 5.7 Recommendations for Restriction of Freedom 104 5.8 Recommendations for Developing Parole 104 5.9 Restorative Justice, Juvenile Offenders, and Female Offenders 106 ORGANISATIONAL FEATURES NECESSARY TO DELIVER ALTERNATIVE SANCTION 106 5.10 Organisational Accountability 106 5.11 Sufficient Capacity to Deliver 107 5.12 Types of Staff Required 108 5.13 Management of Services 108 5.14 Logistics 109 5.15 Partner Organisations 110 STRATEGIC OPERATING ENVIRONMENT 110 5.16 Government Policies 110 5.17 Recommendations concerning leadership 111 5.18 Donors 112 5.19 Transparency 112 6.CONCLUSIONS 114 Georgia 114 Armenia 115 Azerbaijan 115 APPENDICES TO THE REPORT 117 6 1. INTERNATIONAL APPROACHES Community Sanctions and Measures This section describes the main ways that can be used to avoid custody as an offender moves through the system from initial arrest until the sanction has been completed. 1.1 Alternatives to Pre-Trial Detention When a court needs further time to complete dealing with a case it must decide whether the defendant can be released or should be held in custody. The main concerns are whether the defendant will commit further crime, fail to attend a future hearing or interfere with further enquiries. It is generally accepted that pre-trial detention should be reserved for the highest risk offenders. Negative long-term consequences can arise from holding people unnecessarily in such prisons, and separating them from family and other positive influences at this time of crisis in their lives. Long periods of isolation and exposure only to other people with similar criminal attitudes appear to increase the likelihood of an eventual custodial sentence and recidivism. A range of non-custodial methods can be used to ensure that people accused of crimes can be safely released while they wait for their cases to be decided. In rising levels of security these methods are: • Recognisance. This is a simple, solemn promise to keep the requirements and is the main method in low-risk cases. The court can attach specific conditions to this release such as remaining in employment or avoiding alcohol • Bail. This is a stronger form of restraint in which the accused must pay money to the court if he or she fails to keep all the requirements of release. • Surety. This is where an individual who knows the accused person promises to ensure s/he fulfil the requirements of the court. This individual must be prepared to pay money if the person fails to keep to the requirements. • Curfew. In more serious cases the person can be ordered to be at a specific location for set hours each day (possibly with electronic monitoring). • Bail Hostel. The defendant can be required to live at a special hostel supervised by the probation service. 7 In some jurisdictions probation staff give advice to courts about the level of restraint necessary. 1.2 Diversion from Prosecution Research in European countries has shown that, in the case of less serious crimes, better results can be obtained if the offender is dealt with informally rather than being convicted and sentenced in a public court.