Information regarding conditional early release of convicts

With the view to increasing the effectiveness of the institute of conditional early release from punishment, the package of draft Laws of the Republic of Armenia "On making amendments and supplements to the Law of the Republic of Armenia "On making amendments to the Criminal Code of the Republic of Armenia", "On making amendments and a supplement to the Penitentiary Code of the Republic of Armenia", "On making amendments to the Criminal Procedure Code of the Republic of Armenia" and "On making amendments and a supplement to the Law of the Republic of Armenia "On Probation"” (hereinafter referred to as the Package) has been developed by the Ministry of Justice of the Republic of Armenia and was adopted by the National Assembly of the Republic of Armenia by the second reading and completely on 23 May 2018.

The need for adopting the package is conditioned by the following:

(1)    Conditioned by the powers reserved to the President of the Republic of Armenia by the amendments to the Constitution in 2015, a need had emerged to terminate the activities of independent commissions;

(2)    in the course of activities of an independent commission, a number of problems had arisen, which were decreasing the effectiveness of the process of conditional early release from punishment.

Taking into account the above-mentioned, model and procedural amendments were made to the process of conditional early release from punishment according to the Package, the peculiarities of which are the following:

• ·      Procedure for submission of a request by a convict:

The Package stipulates that the start of the process of conditional early release from serving the punishment shall be conditioned not only by serving the part of the term of punishment prescribed by law, but also the existence of a request from a convict. In other words, the process shall start when a convict himself or herself submits a request for conditional early release from serving the punishment. Moreover, the request must be submitted not earlier than three months prior to expiry of the part of the term of punishment prescribed by law. The administration of the institution executing the punishment shall notify the convict about the procedure for submitting a request.

• ·      Putting Penitentiary service-Probation service-Court model into operation:

As a result of the proposed model, two specialised institutions with the necessary human and material resources, will provide reports on the circumstances evaluating proper behaviour of a convict and the possibility of commission of a new criminal offence on the part of the convict. The Penitentiary Service will be able to properly evaluate the personality and behaviour of a convict in the course of serving the punishment, and the Probation Service will be able to properly evaluate the possibility of the convict to re-integrate into society.

The mentioned institutions will — prior to expiry of the part of the term of the punishment prescribed by law — start drawing up reports, providing the opportunity to conduct comprehensive research on the circumstances under examination. The Services will have 80 days at their disposal to draw up reports.

In case of drawing up reports, there are 4 possible options, including:

(1)    If the reports of the Penitentiary Service and the Probation Service are positive, the administration of the institution executing the punishment shall — within three working days following expiry of the part of the term of the punishment imposed on the convict by law — adopt a decision on submitting the matter of conditional early release from serving the punishment of the convict or replacement of the remainder of the punishment with a milder punishment to court, and shall — within seven working days — submit it to court by filing a motion;

(2)    If one of the reports of the Penitentiary Service and the Probation Service is negative, the administration of the institution executing the punishment shall — within three working days following expiry of the part of the term of the punishment imposed on the convict by law — adopt a decision on submitting the matter of conditional early release from serving the punishment of the convict or replacement of the remainder of the punishment with a milder punishment to court, if the convict grants his or her written consent, and shall — within seven working days — submit it to court by filing a motion;

(3)    If one of the reports of the Penitentiary Service and the Probation Service is negative, the administration of the institution executing the punishment shall — within three working days following expiry of the part of the term of the punishment imposed on the convict by law — adopt a decision on not submitting the matter of conditional early release from serving the punishment of the convict or replacement of the remainder of the punishment with a milder punishment to court, if the convict does not give a written consent;

(4)    If the reports of the Penitentiary Service and the Probation Service are negative, the administration of the institution executing the punishment shall — within three working days following expiry of the part of the term of the punishment imposed on the convict by law — adopt a decision on not submitting the matter of conditional early release from serving the punishment of the convict or replacement of the remainder of the punishment with a milder punishment to court, which the convict may appeal to the court of first instance of general jurisdiction.

At the same time it should be emphasised that, with the view to ensuring the legal possibility of conditional early release from serving the punishment of the convict or replacement of the remainder of the punishment with a milder punishment and exclusion of potential offences in practice, it is envisaged that the administration of the institution executing the punishment shall — within three working days following adoption of the decision — forward the copies of the decision on submitting or not submitting the matter of conditional early release from serving the punishment of the convict or replacement of the remainder of the punishment with a milder punishment to court and the reports to the prosecutor exercising oversight over lawfulness of application of the punishment. If the decision on not submitting the issue to court is deemed to be contradicting to the legislation, the Prosecutor General of the Republic of Armenia or his or her deputy shall file a motion with the Minister developing the policy of the Government in the justice sector to cancel the mentioned act. The Minister shall inform the person who has filed the motion about the results of consideration of the motion. If, during consideration of the motion, it is established that the convict has appealed against the decision of the administration of the institution executing the punishment, the Minister developing the policy of the Government in the justice sector shall return the motion to the person who has filed it.

• ·      The rights of the convict:

In the course of drawing up reports, the convict will maintain the rights reserved to him or her for participating in the session of the independent commission. Thus, prior to submitting reports to the court — if the reports are positive, and prior to adoption of a decision by the administration of the institution executing the punishment — if at least one of the reports is negative, the convict shall have the right to:

(1)    get familiarised — in a manner accessible to him or her, including through a relevant specialist — with materials compiled about him or her and receive copies thereof free-of-charge;

(2)    submit explanations and documents, make statements;

(3)    express his or her opinion during consideration of issues concerning him or her;

(4)    receive reports drawn up about him or her;

(5)    make use of the services of an interpreter at the expense of state funds in case of having no command of Armenian;

(6)    other rights provided for by law.

Pursuant to transitional provisions of the Package, about convicts whose:

(1)    right for conditional early release from serving the punishment or replacement of the remainder of the punishment with a milder punishment of which has arisen prior to entry into force of the Package and has not been considered by the commission within 15 working days following entry into force of the Package (the Package entered into force on 23 June of the current year), the administration of the institution executing the punishment shall — within three working days — draw up a report and submit it to the convict.

(2)    the legal possibility of conditional early release from serving the punishment of the convict or replacement of the remainder of the punishment with a milder punishment has arisen following entry into force of the Package before 1 September 2018, the administration of the institution executing the punishment shall draw up a report within 15 days following the moment the legal possibility arose. In both of the mentioned cases, if the convict gives his or her consent, the administration of the institution executing the punishment shall — within two working days following receipt of a written consent of the convict — adopt a decision on submitting the matter of conditional early release from serving the punishment of the convict or replacement of the remainder of the punishment with a milder punishment, and shall — within three working days — submit it to court by filing a motion.

(3)    the legal possibility of conditional early release from serving the punishment of the convict or replacement of the remainder of the punishment with a milder punishment shall arise after 1 September of this year, then report shall be drawn up exclusively in the case when the convict submits a request to the institution executing the punishment.

Touching upon the circumstances that are taken into account in case of conditional early release from serving the punishment, it is necessary to note that, pursuant to part 1 of Article 76 of the Criminal Code of the Republic of Armenia, a person who serves a punishment in the form of imprisonment or confinement in a disciplinary battalion may, upon serving the minimum term of punishment provided for by law, benefit from conditional early release from serving the punishment, where, upon consideration of the reports of the Penitentiary Service and the Probation Service on circumstances provided for by parts 1.1 and 1.2 of this Article and the motion of a commander of a disciplinary battalion, the court comes to the conclusion that — in order to be corrected — the convict does not need to serve the remaining part of the imposed punishment, as:

(1)    he or she has behaved properly while serving the punishment, and

(2)    it is not very likely that the convict will commit a new criminal offence.

The following circumstances shall be taken into account when assessing the proper behaviour of the convict:

(1)    existence of incentive while serving the punishment;

(2)    existence of disciplinary penalty while serving the punishment;

(3)    participation in educational programmes, athletic and cultural events or self-sufficient unions of convicts while serving the punishment, where there has been such a possibility;

(4)    working for at least three months while serving the punishment, where there has been a possibility to work, or where not working has not been conditioned by the health problems of the convict;

(5)    other circumstances for assessing the proper behaviour of the convict.

The following shall be taken into account when assessing the probability of the convict to commit a new crime:

(1)    age of the convict, age of the convict at the time of committing the crime;

(2)    nature of the crime and danger posed to the public;

(3)    existence of recidivism;

(4)    his or her attitude towards the criminal offence committed;

(5)    compensation of damage caused by the crime or settlement in any other way or undertaking an obligation in writing to compensate the damage caused or settle in any other way;

(6)    his or her attitude towards criminal subculture;

(7)    certain inclinations, possible addictions, preferences;

(8)    participation in re-socialisation, including personal development activities;

(9)    contact with the family or outside world or the existence of persons under care;

(10)  social environment;

(11)   state of health, including state of mental health, being in mandatory treatment and the result of mandatory treatment;

(12)   other circumstances for assessing the probability of the convict to commit a new crime.

At the same time, we submit the report drawn up for presenting for conditional early release from serving the punishment at penitentiary institutions of the Ministry of Justice of the Republic of Armenia — the data submitted for consideration as of 24 July 2018: